Painter v. Blue Diamond Growers, No. 17-55901, 2018 WL
6720560, — Fed.Appx. —- (9th Cir. Dec. 20, 2018)

Painter alleged that Blue Diamond mislabeled its almond
beverages as “almond milk” when they should be labeled “imitation milk” because
they substitute for and resemble dairy milk but are nutritionally inferior to
it. The court of appeals affirmed the district court’s finding of FDCA
preemption. “The FDCA sets forth the bare requirement that foods imitating
other foods bear a label with ‘the word “imitation” and, immediately
thereafter, the name of the food imitated.’”  Painter’s argument that Blue Diamond needed
either a nutritional comparison of almond milk to dairy milk or cease using the
term “milk” on the label of its almond milk products thus conflicted with the
FDCA.

Separately, the claim was properly dismissed as implausible.
 No reasonable consumer would be deceived
into believing that Blue Diamond’s almond milk products were nutritionally
equivalent to dairy milk based on their package labels and advertising, which
was unambiguous and factually accurate. Nor were the products plausibly
mislabeled under federal law.  Almond
milk wasn’t an “imitation” of dairy milk: “almond milk does not involve
literally substituting inferior ingredients for those in dairy milk,” and a
reasonable jury couldn’t conclude that almond milk was nutritionally inferior
to dairy milk within the meaning of the law, because it wasn’t plausible that a
reasonable consumer would “assume that two distinct products have the same
nutritional content.”