Are You Sure You’ve Got Milk?


Alternatives to traditional food products have increased in availability, number, variety and popularity over the last decade.  So where does this leave consumers and the regulators who are tasked with ensuring food safety?  The Ninth Circuit has held that the reasonable consumer can digest the differences between almonds and cows.

In Painter v. Blue Diamond Growers, No. 1755901, 2018 WL 6720560, at *1 (9th Cir. Dec. 20, 2018), the Ninth Circuit affirmed the District Court’s dismissal of the plaintiff’s complaint with prejudice on the grounds of preemption and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).  On behalf of a putative class, the plaintiff claimed that Blue Diamond mislabeled its almond beverages as “almond milk” and that they should be labeled “imitation milk” because they are inferior substitutes for dairy milk.

The Ninth Circuit found almond milk is not an “imitation” of dairy milk within the meaning of the applicable federal regulations, emphasizing that “it is not plausible that a reasonable consumer would assume that two distinct products have the same nutritional content.”  The Ninth Circuit agreed with the District Court that “no reasonable consumer could be misled by [Blue Diamond’s] unambiguous labeling or factually accurate nutritional statements.”

The U.S. Food and Drug Administration is evaluating whether the labeling of plant-based alternatives may lead consumers to believe these products have the same key nutritional attributes as their dairy counterparts.  In particular, FDA is looking at children’s health issues related to plant-based milk alternatives.  FDA Commissioner Scott Gottlieb, M.D., stated that FDA “intend[s] to look at whether parents may erroneously assume that plant-based beverages’ nutritional contents are similar to those of cow’s milk[.]”  On this issue, FDA is soliciting public input to answer the following questions:

  1. How do you use plant-based products?
  2. What is your understanding of dairy terms like milk, yogurt and cheese when they are used to label plant-based products?
  3. Do you understand the nutritional characteristics of plant-based products?  Do you know how they’re different from each other?  Do you know how their nutritional qualities compare with dairy products?

FDA has extended the public comment period on this issue until January 28, 2019.

Cellular agriculture alternative

Alternatives to dairy products are not the only “imitation” foods getting attention these days.  Cellular agriculture and plant-based dairy alternatives have raised similar questions.

Cellular agriculture produces meat, poultry and seafood from animal cell cultures to replicate the characteristics of muscle harvested from food-producing animals.  This process has led regulators to question how to label such cultured food products effectively.  Some suggest the “meat” grown in a lab, rather than on a farm, should be called “cultured meat,” “cell-based meat,” “artificial meat,” or “clean meat.”  Others feel these products should not be associated with “meat” in the traditional sense whatsoever.

At a public meeting this past summer, FDA engaged in a dialogue with food industry and consumer representatives about how to embrace cell-cultured foods, while keeping consumers safe and fully informed.  It has since been announced that FDA will create a joint regulatory framework with the USDA to oversee cultured livestock and poultry products.  The joint regulatory scheme’s details are yet to be determined, but the effort may implicate future jurisdictional issues with respect to cultured meat products.

It remains to be seen if FDA’s stance on labeling plant-based dairy alternatives will affect the agency’s stance on cell-based meat labeling.  Only time will tell how well consumers understand terms such as “milk” and “meat.”  What is clear is that “imitation” and cultured food products will be a hot topic to watch in 2019, especially from a regulatory standpoint.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

About the Author: Abigail Luhn

Abigail M. Luhn is an associate in the Products Liability and Mass Tort Group in our Florham Park, New Jersey, office. Her practice focuses on the defense of major pharmaceutical and medical device companies in product liability cases involving prescription and over-the-counter medications and medical devices.

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