SACRAMENTO, Calif. — The following statement is from Frederick W. Penney, Managing Partner of Penney and Associates Attorneys: https://www.penneylawyers.com/about-our-firm/
Recently I was visiting family and woke up in the morning to have my ritualistic breakfast of cereal and milk. I noticed the only milk in the refrigerator was almond milk. I tried it over the cereal and noticed that the flavor was, in my opinion ok, but clearly not the dairy milk taste that I was raised on. Why is it that almond milk has become so popular and why do I see it more and more prominent near the dairy aisle in the supermarkets? I recall having discussed this topic briefly on the nationally syndicated radio show Radio Law Talk. https://radiolawtalk.com/podcasts/ . Given that I grew up as a country boy and have worked for a few farmers with cattle and orchards during my teenage years, I wondered how this was sitting with Almond Farmers and Dairy Farmers. There have been some recent cases concerning whether almond beverages being labeled as “milk” was a deceptive advertising under the Food and Drug Administration (herein after FDA) laws. Some alleged that saying “almond milk” is misleading consumers to believe that the almond beverage was not a milk but an imitation milk under the law. It all came to a head in 2017 when a lawsuit was filed to determine whether almond beverages could use the word milk in the labeling of their products. See Painter et al., v. Blue Diamond Growers et al., https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/12/20/17-55901.pdf . But before diving into the legal issues, one must try to understand how almonds produce what almond farmers call milk.
WHAT IS ALMOND MILK AND HOW IS IT MADE?
California is the largest producer of Almonds in the United States and the World. California produces about 80% of the Almonds in the world and 100% of the Almonds in the United States. https://www.almonds.com/sites/default/files/2016_almond_industry_factsheet.pdf . Most of the almonds produced in the United States are produced in Northern California. To make almond milk is not too complicated. Simply stated the almonds are soaked in water for up to two days. They are then drained and rinsed. The almonds are ground up with fresh water and the resulting liquid from the almond meal becomes Almond Milk. https://www.thekitchn.com/how-to-make-almond-milk-at-home-cooking-lessons-from-the-kitchn-189996 .
The question then arises if the final product of making a milky substance out of almonds can truly be called “milk” under the definition according to the FDA or Food, Drug and Cosmetic Act (herin after called FDCA). The FDCA definition of milk is of a substance that is produced from a “lacteal secretion.” The FDCA continues and describes the variations of such but never mentions any plant products such as Soy, Oat or almond as a milk. https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=131.110. Yet in the Webster’s dictionary a secondary definition from milk being defined as a lacteal secretion is “a liquid resembling milk in appearance.” This includes the latex of a plant or the contents of an unripe kernel of grain. https://www.merriam-webster.com/dictionary/milk .
Thus, there are two different definitions of milk according to the FDCA and Webster’s dictionary. But does the fact that a company uses the words almond, soy or oat prior to the word milk defuse the argument that there may be some confusion about using the word milk in the almond beverage products name? There have been cases recently discussing this issue that need to be addressed. However, prior to that it would be important to listen to those who deal with this issue on a daily basis. Farmers have been a tight knit group that usually are on the same side of an argument supporting the farmer and farm life, however this issue pits farmers against farmers. Who is correct the Dairy Farmer or the Almond Farmer?
A FARMERS PERSPECTIVE
Recently I was able to talk to a third-generation farmer from Northern California. His perspective is ideal as his family has been in the dairy and cattle industry for three generations all over California and yet some of his family works for the almond industry. The family started their dairy farm in Needles, California. This 60-year-old third generation farmer has been a dairy farmer, beef cattle rancher and has family as of 2021 currently working in the almond industry. His friends include almond farmers, dairy farmers and other farmers that grow all types of crops. He has advised me that he is close to all that are involved in this dispute over whether the almond growers should be using the word milk in the labeling of their product. Because he is so close to both almond and dairy farmers, he has asked to have his name withheld.
Frederick Penney: Have you heard from dairy and almond farmers about the issue of whether almond farmers should be able to use the word milk in the sales of their products?
Farmer: Yes, I have heard several farmers talking about the controversy and find it very interesting.
Frederick Penney: What do you think about almond farmers using the word “almond milk” to advertise and promote their products? Should they be able to use milk in the name?
Farmer: I have a lot of friends in both industries and appreciate their hard work. First, I believe that those who have a dairy are some of the hardest working people in the United States. It is an unending process of work around the clock. I think using the word milk in conjunction with squeezing almonds into a milky looking substance is an infringement on what milk is. It is not milk; it is a process or way to develop something that looks like milk from an animal. This is not the same as a lactating animal that produces milk. Almond milk is simply a process and not a milk.
Frederick Penney: Do you believe the word “almond milk” is deceptive advertising?
Farmer: Well, I think it may be deceiving and not the correct term for milk. It reminds me when the fast-food companies started to call a plant-based hamburger a “veggie burger.” It is not a burger; it is a vegetable. Again, I know farmers on both sides of this issue but a product that does not have meat from and animal in it is not a burger. This is the same with the almond milk, it does not have any milk in it from an animal so it is not a milk.
Frederick Penney: I know you have family working in the almond industry, have you heard their perspective?
Farmer: I really do not recall but I know that the belief that using the word almond before the word milk is what they feel justifies it being ok to use the word milk on their cartons. Maybe I am a traditionalist but milk that is sold in the stores is from an animal.
DAIRY MILK AND ALMOND MILK GO TO COURT
As is the case when people, businesses, countries, or industries have a dispute it ends up in court. This is no different for the dairy and almond farmers. On May 24, 2017, the United States District Court Central District of California decided on the Cynthia Cardarelli Painter et al., v. Blue Diamond Growers et al., case. https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/12/20/17-55901.pdf . This highly charged farmers dispute at the district court level was won by Blue Diamond Almond Growers, the court agreeing to dismiss the dairy milk industries representative Painter’s case without prejudice (Painter cannot fix their complaint and re-file it). Painter then filed an appeal to United States Court of Appeals for The Ninth Circuit.
PAINTER’S ARGUMENT AGAINST BLUE DIAMOND USING THE WORD MILK
In sum, Painter argued that Blue Diamond Growers almond beverage mislabeled its almond beverage as milk and should have labeled it as “imitation milk”. They argued that the almond beverage was nutritionally inferior and therefore must be labeled as imitation under the Food, Drug and Cosmetic Act rules and regulations. https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=133.3. Second, they argued that calling the almond beverage milk was deceptive and not in any way related to milk as defined by the FDCA and that the practice of labeling almond beverages as milk was deceptive to the individual consumer who might believe that the almond beverage was a dairy product.
BLUE DIAMONDS ARGUMENT FOR USING THE WORD MILK FOR ITS ALMOND BEVERAGE
In sum, Blue Diamond argued that their product labeling was not deceptive because it clearly stated the word almond before milk and showed a picture of an almond on the front of its cartons. Second, they argued that the FDCA rules did not apply as this was not a product imitating another product, but a distinct and separate product not related to animal milk. In other words, almond milk is not a dairy milk but a nutritionally different plant-based milk which does not figuratively fall into the same category.
This interesting case drew attention to several organizations that decided to file amicus briefs (outside parties can file an opposition or for a side if they can generally show an interest in the case) including The Good Food Institute that supports plant-based foods which backed up Blue Diamond Grower’s arguments. https://gfi.org/images/uploads/2018/03/GFIAmicusBriefPainter.pdf
NINTH CIRCUIT APPEALS COURT RULING
The case was argued before the Ninth Circuit on December 3, 2018, in Pasadena, California. The Court noted that its decision was not appropriate for publication which means that the citation of its ruling cannot be used as a reference for argument in subsequent cases except by Ninth Circuit Rule 36-3, which in essence only allows the ruling to be used under certain circumstances before the Ninth Circuit. https://cdn.ca9.uscourts.gov/datastore/uploads/rules/frap.pdf . The court held for Blue Diamond Growers agreeing with the lower district court that the case be dismissed. The court held that Painter’s arguments under state law were pre-empted by federal law under the FDCA. The court held that State Law cannot impose food labelling requirements that are different from the FDCA. Second, the court held that the lower court properly dismissed the case on the grounds that Painter did not show that any reasonable consumer would have been deceived by the labeling of almond milk as similar to dairy milk. Remember Blue Diamond’s almond milk uses the word almond before milk and has a picture of an almond on the carton. The court recognized this as an important factor to determine that an average consumer would not be deceived. Moreover, Blue Diamond’s nutritional facts label was accurate and showed that it was different than dairy milk. Third, the appellate court found that Blue Diamond Growers almond milk was not considered an “imitation” of dairy milk, but a separate distinct plant-based product comprised of different nutritional components. Finally, the court upheld the district courts decision to not allow Painter to amend their complaint because it would be futile given the fact that changing their complaint would not affect the ruling.
WAS THE NINTH CIRCUIT COURT OF APPEALS RULING CORRECT
My knee jerk reaction about deceptive advertising or labeling of almond milk seems like the Ninth Circuit Court of Appeals got it right. I see the main issue is the confusion of consumers thinking that the almond milk is somehow related to dairy milk. Given the fact that the word almond is used before the word milk, the fact that the carton has a picture of a big almond, Websters dictionary notes that a secondary definition of milk is a byproduct of a plant, and the fact that Blue Diamond Growers has an extensive amount of information about the product and its nutrition on its carton and on its website, it is time to move on to something else for the courts to decide. https://www.bluediamond.com/faqs#:~:text=Shelf%20stable%20Almond%20Breeze%C2%AE,as%20required%20by%20federal%20regulations . The final test will be the consumers taste test to see if they prefer dairy milk or almond milk when having chocolate milk or pouring milk over their morning cereal.
