Does Soymilk Come From Cows? “Even the Least Discerning of Consumers” Should Know Better

By Ricardo Carvajal

A California district court granted Defendants’ motion to dismiss in a putative class action brought by Plaintiffs who alleged that certain plant-based beverages, including soymilk, almond milk, and coconut milk, were misbranded because FDA defines “milk” as being derived from lactating cows. Plaintiffs alleged several violations of state law, including unlawful practices in violation of the California Unfair Competition Law, and misleading and deceptive advertising in violation of the California False Advertising Law.

Plaintiffs argued that the federal standard of identity for milk precludes the use of the term “milk” in relation to beverages not derived from cows. The court was unpersuaded:

Here, the Court agrees with Defendants that the names “soymilk,” “almond milk,” and “coconut milk” accurately describe Defendants' products. As set forth in the regulations, these names clearly convey the basic nature and content of the beverages, while clearly distinguishing them from milk that is derived from dairy cows. Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products names should be obvious enough to even the least discerning of consumers.

The court concluded that “brief statements” on the subject in FDA warning letters cited by Plaintiffs were “far from controlling.” The court cited the agency’s regular use of the term “soymilk” in public statements as evidence that “the agency has yet to arrive at a consistent interpretation” of the applicability of the standard of identity for milk (other federal agencies, most notably the USDA and CDC, also use the term “soymilk” in their public communications – including the Dietary Guidelines for Americans). The court dismissed the Plaintiffs’ claims with prejudice.

A hat tip goes to the 43(B)log.