On the litigation front, cases involving alternative milks generally confirm that the products are not, for the purposes of current law, considered deceptive. Indeed, it appears there has been some litigation activity (mostly in California federal courts) concerning whether non-dairy milks such as soy milk and almond milk have been deceptively labeled or marketed as “milk.” In 2013, for example, a judge of the United States District Court for the Northern District of California dismissed, for failure to state a claim upon which relief could be granted (pursuant to Fed. R. Civ. P. 12(b)(6)), a putative class-action complaint alleging that products labeled “soymilk,” “almond milk,” and “coconut milk” were misbranded. The Court granted the motion to dismiss the misbranding claim on grounds that the FDA had not required a particular “standard of identity” for the alternative milks, federal law required only the use of commonplace and accurate names (which the alternative milk names were), and because consumer confusion between so-labeled alternative milks and dairy milk was implausible. Other judges of this district court have disagreed with dismissal, however, and denied in one case a motion to dismiss pursuant to Rule 12(b)(6) on the ground that soymilk products could plausibly be misbranded or misleading in violation of applicable unfair-competition law. Still other judges of California’s federal district courts have decided to stay litigation (in lieu of dismissing the case) pending action by the FDA to address whether alternative milks should be labeled as “imitation” milks. And yet another group of judges have dismissed cases out of abstention and deference to the FDA, declining to hear the dispute based on the so-called “primary jurisdiction” theory.

At the appellate level, in December 2018, the Ninth Circuit Court of Appeals affirmed a federal district court’s dismissal on 12(b)(6) grounds of a putative class-action complaint alleging deceptive marketing in the identification of almond milk, reasoning that reasonable consumers cannot believe that the almond milk in question was the equivalent of dairy milk. Since the California district courts discussed above are within the Ninth Circuit and bound by its precedent, this decision will potentially influence the decisions on alternative milk coming out of this active region in the future.