Got “Milk”?: Considerations For And Implications Of Plant-based “Milk” Labeling
Introduction
The dairy industry has been in decline since 2014.1 Meanwhile, the popularity of non-dairy, plant-based alternatives, such as soy milk or almond milk, has been on the rise.2 Such change in market control has led to tensions among the dairy and non-dairy milk industries.3 As part of this conflict, individuals have filed cases alleging that labeling non-dairy beverages in ways that include the word “milk” is in violation of Food and Drug Administration (FDA) labeling regulations and state consumer protection laws.4 Unfortunately, despite being aware of the potential issue in labeling non-dairy milk for a decade, the FDA has yet to issue any guidance on the matter.5 As such, courts confronting the issue have not been able to move forward; instead they continue to defer the issue to the FDA.6 While there is strong support for deferring to agency decisions, it may be inappropriate to do so where the issue can be resolved with a consistent outcome after applying every applicable legal framework.7
This Note will first provide a brief background of the dispute between the dairy industry and plant-based milk industries, as well as the legal frameworks that will be relevant throughout the analysis.8 This Note will then point out issues of greater significance that this conflict is demonstrative of, such as regulatory issues, policy issues, industry issues, and humanitarian issues.9 Diving into the analysis, this Note will evaluate the issue of non-dairy labeling under current FDA labeling requirements, consumer protection laws, and trademark principles to reach the conclusion that the inclusion of the term “milk” on plant-based products is not confusing, misleading, or deceptive.10 Because there is little need for the FDA to weigh in on this matter, this Note asserts that waiting on agency regulation creates an unnecessary delay in the judicial process.11
Further, this Note contends that if the FDA wants to prevent this issue in the future, it needs to add a reasonableness requirement under labeling laws to allow courts to weed out clearly unnecessary labeling law claims.12 Finally, this Note will argue that these dairy labeling cases provide a strong example for the need to prevent law and courts from being used as a substitute for common sense.13
I. Background
A. Crying Over Labeled Milk: Milk Labeling Legal Disputes
In recent years, disputes have been arising over a seemingly trivial and mundane issue—the use of the word “milk.” 14 Wanting to prevent producers of non-dairy products from using the term “milk” or other related terms, dairy proponents have taken to the courts.15 In July of 2013, a U.S. District Court in California considered a claim that labeling a product “yogurt” violated various state consumer protection laws where such product did not contain any form of milk.16 There, the court deferred to the FDA in order to allow the FDA to determine how the rules it had previously enacted regarding product labeling should apply to soy-based yogurts.17 Later that year, the same court determined that soy milk, almond milk, and non-dairy yogurt labeled products did not violate consumer protection and labeling laws, despite the fact that they contained the words “milk” or “yogurt.”18 There the court found that the plaintiffs failed to establish a plausible claim because they had not established that members of the public are likely to be deceived.19 Once again, in 2015, the District Court considered whether the use of the word “soy milk” violated federal labeling or state consumer protection laws, considering that the product did not technically contain “milk.”20 There, the court dismissed the claims, finding that the term “soy milk” was neither misleading nor an attempt to pass the product off as one which has been standardized under federal law.21 Most recently, a federal court has again referred the issue to the FDA after a 2017 claim in which a plaintiff once again claimed that labeling products as “almond milk” violated federal laws as well as California consumer protection laws.22 The task is now left to the FDA to establish the appropriate regulations.23 At this time, despite multiple referrals and the time that has passed since the 2017 case, no such regulations exist.24
Though these cases may seem to have no value on their face, they have some factual support. In particular, two warning letters written and issued by the FDA give credibility to the arguments that using the term “milk” on non-dairy products could violate some state and federal laws.25 The first warning letter was issued to the company Lifesoy in 2008.26 In this letter, the FDA states:
Your LIFESOY® Natural Soy milk Unsweetened (1/2 gallon) and LIFESOY® Natural Soy milk Sweetened (1/2 gallon) products use the term “milk” as part of their common or usual name. Milk is a standardized food defined as the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows [21 C.F.R. § 131.110]. Therefore, we do not consider “soy milk” to be an appropriate common or usual name because it does not contain “milk.” We do consider “soy drink” or “soy beverage,” however, as acceptable common or usual names for such products.27
Thus, as early as 2008, the FDA suggested that labeling non-dairy products as “milk” could be a violation of already-established labeling laws.28 The FDA used similar language in a 2012 warning letter issued to Fong Kee Tofu Company, Inc.29 Once again, the FDA suggested that the use of the term “milk” is not in accordance with the standardized meaning of the word.30 Because the product falls out of the standards defined for milk products, the term “soy milk” was determined to be inappropriate.31 These two letters suggest that the FDA’s position may be that labeling products as milk that are derived from non-bovine sources is in violation of the labeling requirements that are set forth in federal statutes.32
B. The Dairy Drama
In addition to the factual support that comes from the letters, brewing tension between the non-dairy and dairy industries provides further insight into the labeling conflict.33 The dairy industry has been in decline since 2014.34 In 2015, sales of dairy milk within the U.S. dropped seven percent, a decline of roughly $17.8 billion dollars.35 This decline will likely continue, as market reports project another eleven percent decrease in dairy sales between the 2015 through 2020 period.36 Meanwhile, plant-based alternative non-dairy milk products are growing in popularity.37 Almond milk, for example, has seen a 250 percent increase in sales since 2011.38 The switch can be attributed to many factors, including dietary needs arising from lactose allergies, perceptions that non-dairy milk has greater health benefits, and concerns about the welfare of dairy cows.39 In response to the switch, the dairy industry has increased promotional efforts, including those which take direct aim at non-dairy milk products.40 Such efforts include a spelling bee commercial in which one child is asked to spell “lecithin,” an emulsifier found in almond milk, as compared to another child who is asked simply to spell the word “milk,” which is defined to be “from a cow,” in an attempt to show that almond milk is less pure than conventional dairy milk.41 Other efforts include campaigns that point out the protein differences between conventional dairy milk and non-dairy alternatives. 42 Though such commercials may seem trivial, they serve as subtle indicators of the heated battle between the dairy industry and producers of non-dairy milk alternatives.43 This heated battle may very well be driving the desire to change labeling requirements to prevent non-dairy milk producers from labeling their products as milk.44
Using labeling requirements as a battle tool is not a new strategy for those involved in the dairy industry.45 Such qualms over labeling have occurred before, specifically in regard to the use of recombinant bovine somatotropin (rBST), a synthetic hormone that can increase milk production in dairy cattle.46 In 1994, the FDA published interim guidance stating that rBST was safe to use in dairy cattle and declining requests to require rBST labeling on milk products from cows treated with rBST.47 The guidance warned against labeling which claimed that the milk was “rBST free” because of the possibility of confusion with “rST,” a hormone occurring naturally which would therefore always be found in milk.48 Furthermore, the FDA cautioned that even a more appropriate label, such as “from cows not treated with rBST,” should include the disclaimer: “No significant difference has been shown between milk derived from rBST-treated and non-rBST-treated cows.”49 Such strict labeling suggestions led some dairy farmers to determine that there was no reason to raise cattle without the aid of rBST when there was no marketing advantage to be had.50 Still, others continued to fight, making false claims about the dangers of rBST, in an attempt to make the limited labeling allowed for milk from cows that had not been treated with rBST more valuable.51 These issues show both that the labeling conflict has arisen before, and also that it has greater impact beyond the printing of a word or phrase on a label.52
C. Legal Prevention of Deceptive or Confusing Practices
1. Consumer Protection
While changing a label may be one way to ensure that consumers are informed, many legal methods already exist to ensure that consumers do not fall victim to trickery or fraud.53 Consumer protection laws, which arise from early tort actions preventing trickery or deceit, are a major mechanism by which the federal government and individual state governments protect citizens from unfair or fraudulent business practices. 54 To protect consumers, the federal government established the Federal Trade Commission (FTC).55 The FTC has been given the authority to, among other things, prevent unfair or deceptive acts affecting commerce, seek monetary relief for conduct which injures consumers, and prescribe rules which specifically define practices that are unfair or deceptive.56 Likewise, all fifty states have enacted their own consumer protection statutes, which offer varying degrees of protection from deceptive trade practices.57 These laws, both federal and state, serve to prevent producers from marketing products in such a way that consumers are confused about what it is exactly they are purchasing.58
Because consumer protection laws exist at both the federal and state level, it is helpful to discuss state consumer protection laws as an example. California’s consumer protection laws, for example, are primarily found in the State’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”).59 The UCL broadly prohibits unfair competition, which is defined as “unlawful, unfair, or fraudulent acts or practices.”60 The statute is so comprehensive that it does not include any proof of an intent to deceive, reliance on the deceptive practices, or damages as a result of the unfair practices.61 The FAL is equally as broad, encompassing all statements and advertisements known as or those that should be known to be untrue or misleading.62 Finally, the CLRA lists numerous unlawful acts that are deemed to be unfair competition.63 Among these acts are misrepresenting the source of goods, representing that goods are of a particular standard, or passing off goods as those of another.64
2. Labeling Laws
In addition to general consumer protection laws, labeling laws exist to prevent consumer confusion.65 The public’s desire to have product labels which clearly and accurately represent the foods contained within is not a new phenomenon.66 Because labeling is so important to consumers, laws exist that carefully regulate the labeling of most goods. 67 For example, federal statutes require that packaging allow consumers to make value determinations and determine the contents, identity, and other vital information about the product.68 Likewise, the Federal Food, Drug, and Cosmetic Act (FDCA) establishes standardized and particularized labeling requirements for the nutritional value of food products.69 Furthermore, the FDCA prohibits the misbranding of food, introducing misbranded food into interstate commerce, or receiving misbranded food in interstate commerce.70 Misbranding food applies to numerous violations, including having a false or misleading label,71 offering something for sale under the name of another food, 72 providing an imitation of a food without the word imitation displayed prominently, 73 and representing a food as one for which a standard of quality has been prescribed by FDA regulations.74 Misbranding is even broader than the vast number of categories it includes, because it extends beyond the physical label of the product and into information that is portrayed in any advertising of the product.75 Broadening this definition even further, case law offers guidance as to what may be considered false or misleading under the FDCA.76 In deciding a claim as to whether a product, which claimed it would cure all diseases and illnesses suffered by mankind, was false or misleading under the FDCA, the First Circuit determined that labels should not be read from the perspective of experts or skeptics.77 Instead, the Court noted:
The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious.78
For such a broad law prohibiting numerous activities, the penalties are fairly severe, including a $10,000 fine or three years imprisonment for a repeat offense.79
3. Principles from Trademark Law Prevent Deception or Confusion
Trademark law presents another means by which legislators and courts have attempted to prevent consumers from becoming confused or being deceived.80 The Lanham Act, which provides the federal laws that govern trademarks, provides remedies for when an individual uses a mark in commerce that “is likely to cause confusion, or to cause mistake, or to deceive.”81 The likelihood of confusion has been determined through an analysis that considers various factors.82 While these factors vary slightly from jurisdiction to jurisdiction, they all attempt to determine whether a mark would legitimately confuse a consumer and lead to unintended purchases. 83 One example of a multifactor likelihood-of-confusion test weighs the following factors:
1. strength of the mark; 2. proximity of the goods; 3. similarity of the marks; 4. evidence of actual confusion; 5. marketing channels used; 6. type of goods and the degree of care likely to be exercised by the purchaser; 7. defendant’s intent in selecting the mark; and 8. likelihood of expansion of the product lines.84
By balancing these factors, courts are able to determine whether or not a reasonable consumer would in fact be confused by the trademarks.85
Likewise, courts have a test for determining whether a product’s name is likely to deceive consumers.86 That test questions whether the term in use is misdescriptive of the character, quality, function, composition, or use of the goods; if prospective purchasers are likely to believe the misdescription actually describes the goods; and whether the misdescription is likely to affect the decision to purchase the goods.87
Additionally, trademark law may be helpful when thinking about the concept of a “generic term.”88 In trademark law, a generic term is “one that refers, or has come to be understood as referring, to the genus of which the particular product is a species.”89 In order to determine whether a term is generic, a court must first determine what the genus encompasses. 90 Determining whether a product category constitutes a genus can be accomplished in two main ways:91 (1) determining consumer understanding of what buyers understand the meaning of a word to be; 92 and (2) a combination of the primary significance test and the purposes of trademark law, which questions the primary significance of a word to consumers, and the latter aims to distinguish the source of products rather than the content.93 If a term is generic for trademark purposes, it is likely to have gained the widespread popularity so as to not confuse consumers.94
II. Significance
A. Waiting on Unnecessary Rulemaking and Regulation Delays Problem-Solving
While the use of the word “milk” may not seem groundbreaking in and of itself, it demonstrates issues that extend beyond the beverage bottle. In two of the non-dairy labeling cases, discussed above, the court referred the matter to the FDA, with the intent of deferring to the agency’s judgement once rules or regulations had been implemented. 95 Such deference and respect for an agency’s decisions, though not absolute, has strong foundations in precedent.96 Furthermore, deferring to an agency to make new rules when such matters remain completely uncontemplated has benefits such as enhancing both efficiency and uniformity.97 However, rulemaking is easier said than done. 98 Agency explanations for rules have become lengthy and intricate, as they include lengthy preambles and technical guidelines and must take time to address public concerns about the new rules.99 As a result, the process has become increasingly rigid and burdensome, with rules often grinding along at a slow pace or being tabled and never revisited.100
In the case of labeling soy and other similar plant-based products, there is evidence to suggest that the issue has been on the FDA’s radar for nearly a decade.101 Still, however, the question of whether non-dairy milk can be labeled as “milk” remains unanswered. 102 The lack of guidance leaves relatively simple questions in limbo as courts wait for agencies to act.103 With court systems already clogged and overworked, unnecessary delays should be avoided when possible.104 When prior regulations and schools of thought from other areas of law all lead to the same answer, waiting on agency regulation is an unnecessary burden on the justice system.105
B. Dairy Labeling Cases Raise Questions About the Role of Common Sense in the Legal Field
The calls for labeling regulations that occur here also raise questions about the role of common sense in lawmaking. While laws are often designed to protect the public from harm, they should not be used to eliminate a duty of common sense among the general public.106 For example, in determining whether it was reasonable that consumers were deceived as to the purchase of plows because of the presence of two letters, which they thought stood for a certain brand, a Kentucky Court of Appeals judge boldly stated:
Such persons as these are not intended to be protected by the law. How could any protection be given to such stupidity? They are men going about with their eyes shut, who do not see, or will not see, that which would prevent even their own stupidity from misleading them. They blindfold themselves, and then complain that they cannot see.107
In a more recent case, a judge dismissed a claim as being pure “nonsense” where the plaintiff alleged a belief that the nutritional value of Cap’n Crunch’s Crunch Berries cereal came from the inclusion of real fruit, despite the obvious representation of the cereal “berries” on the packaging. 108 Likewise, in addressing one of the “milk” cases, one judge found it completely implausible that a consumer would see the words “soy” or “almond” in front of the word “milk” and immediately discount those qualifying terms.109
As these cases suggest, consumer protection laws, labeling requirements, and any other legal requirements that intend to protect consumers from confusing deceitful practices could be dangerous if they are allowed to replace a baseline level of observation and common sense.110 Allowing courts to disregard common sense could open the door for frivolous and vexatious litigation, something that rule makers have long sought to prevent.111
C. The Dairy Labeling Issue Raises Questions About the Cross Section
of Protecting Industries and Protecting Individuals The challenge to labeling laws does not signal a concern for consumers, but rather a concern for an industry; still, there are humans behind the industry who are at risk. The issue of labeling non-dairy products as “milk” seems to stem from the dairy industry feeling threatened by the rise in popularity of milk alternatives.112 Because such efforts to change labeling rules may be based on industry aims, rather than a legitimate desire to protect consumers, the chances of undue influence within the rulemaking system is high.113 This is especially true considering that the dairy industry, despite being in decline, is still a billion dollar industry with a history of accounting for about one-tenth of all agriculture revenue.114 Such influence allows for corporations and industries to rig the system to work for themselves.115 With focuses on increasing profits from the dairy industry, such efforts to change labeling seem to serve no benefits to consumers and could actually create confusion and undermine the purpose behind the current FDA labeling regulations.116
Although such labeling regulations may not serve to protect consumers, the dairy industry may argue these regulations indirectly serve a humanitarian purpose—protecting dairy farmers. 117 While falling milk prices may delight consumers in grocery stores, dairy farmers are making twenty to forty percent less than they have in previous, more profitable, years.118 Falling prices, and the imbalances between costs and profits, have led dairy farmers to begin selling off dairy herds.119 Even more concerning is the risk of suicides among struggling dairy farmers.120 Such concerns have led one dairy cooperative, Agri-Mark Inc., to send suicide prevention letters to its members.121 Despite these concerns within the industry, regulating labels on non-dairy alternatives is not the most efficient or effective way to protect individual farmers. 122 Instead, the dairy industry should be encouraged to oppose frivolous litigation regarding milk labeling and spend its $665,000 lobbying budget pushing for measures that more actively support dairy farmers.123
Analysis
III. All Relevant Legal Frameworks to Determine Whether Labeling Non-Dairy Products as “Milk” Is Misleading Lead to the Same Conclusion: It Is Not
A. Labeling Non-Dairy Products as “Milk” Does Not Violate Current FDA Regulations
When analyzing the use of the word “milk” on non-dairy products, the logical place to start is with existing FDA regulations, which will not be found to prohibit such usage. Despite courts’ deference to the FDA on multiple occasions to provide guidance and regulations regarding the labeling of non-dairy, the FDA has not yet released any such regulations.124 In a letter to the Good Food Institute, the FDA indicated that due to “competing priorities” it had not had a chance to consider clarifying regulations that pertain to plant-based milks.125 As such, the governing provisions on labeling food products are still found in the FDCA, which prohibits various acts related to misbranding of food.126
While the FDA has released some regulations clarifying what it means by false or misleading labels for certain products, and has sent warning letters to organizations which offer some guidance, it has not provided general guidelines for what constitutes “false” or “misleading.”127 Despite the case law, which suggests that laws are made to protect the trusting as well as the suspicious, a consumer’s confusion cannot be attributable to the makers of a product in all instances.128 The FDA has put emphasis on the fact that adding words onto a label may have an impact as to whether a product is mislabeled.129 While a consumer would have the right to trust a claim that a product is being presented as “milk,” non-dairy milks including almond or soy milk make no attempt to pass themselves off as being “milk from a cow.”130 The words “soy,” “almond,” or other plant-based terms that appear in front of the word “milk” act as modifiers and serve to change the meaning of the word they modify—in this case, “milk.”131 There is no reason to believe that consumers would discount the word “almond” or “soy” any more than they would discount the word “imitation,” which the FDCA specifically allows to be placed on foods that are imitations of another.132 Thus, even assuming the mere presence of the term “milk” on a product’s package could lead to confusion; such minimal risk is not what the FDCA aims to prevent.133
The FDCA also prohibits offering a food for sale under the name of another food without the word “imitation” being displayed prominently on the label.134 A food is deemed to be an imitation of another where that food is a “substitute for and resembles another food but is nutritionally inferior to that food.”135 There is no question that plant-based milk is a substitute that resembles milk. Furthermore, with just one gram of protein in a typical glass of almond or cashew milk, it is clear that these products are nutritionally inferior to dairy milk, which has eight grams of protein per glass.136 Soy milk comes much closer, rivaling dairy milk with eight grams of protein, but requiring all of its calcium and vitamin B to be included during manufacturing.137 However, the definition of “imitation” includes a carveout that a food will not be considered an imitation when its label bears a common or usual name that is not false or misleading.138 This common name can be established by common usage.139
Plant-based milks, such as almond milk, have such a rich history and common usage that their descriptions constitute a common name; this removes them from the imitation category. While the trend toward plantbased milks may seem like a new phenomenon, almond milk has been produced and consumed since the middle ages.140 Likewise, the term “soy milk” has a rich history, with the term being seen printed in English as early as 1897 in a USDA report.141 These and other non-dairy milks are growing increasingly popular, with reports suggesting that they will reach three billion dollars in sales by the year 2020.142 This history, combined with the increasing prominence of non-dairy milks, suggests that the terms “almond milk,” “soy milk,” and other non-dairy milks have taken on a meaning of their own, which puts them safely into the carveout for common names that are not false or misleading.143
The last provision under the FDCA, which may be applicable to the labeling of non-dairy milk, prevents representing a food as one which has been standardized by FDA regulations. 144 The term “milk,” which is standardized by the FDA, has been described as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”145 Considering this description, other common milk products, such as goat milk or even human breast milk, would not fall within the acceptable category of the term “milk.”146 However, in light of the vast array of products that do not meet this description and yet are still typically classified as “milk,” the term cannot possibly be reserved only for that milk which comes from cows.147 Furthermore, even if the argument—that the term “milk” should be given increased scrutiny because of the fact that it is standardized—had merit, it would be undermined by the fact that soy milk, almond milk, and other plant-based milks are entirely different products which, as noted previously, exist under their own common names.148
B. Labeling Non-Dairy Products as “Milk” Does Not Violate Consumer Protection Laws
In addition to not violating FDA regulations, labeling merely using the term “milk” on a non-dairy product would not violate consumer protection laws, which aim to prevent deceptive practices.149 While labeling could be analyzed under any state’s consumer protection laws, California’s consumer protection laws serve as a good model to use for analysis in this context for two reasons: (1) California is the leading dairy state within the United States, accounting for approximately one-fifth of all dairy consumed in the United States and one-third of all dairy exported from the United States;150 and (2) California has broad consumer protection laws, which have led to a vast majority of food labeling lawsuits being brought within California. 151 Borrowing from criminal law, the maxim omne majus continet in se minimus, or the greater contains the less, can be of use here.152 There, the principle suggests that greater criminal intent inherently satisfies lesser intent; here, the principle is used more literally, finding that the more restrictive laws will be contained within the broader set. 153 Because California’s laws are so broad, if using the word “milk” in connection with non-dairy milk does not violate California consumer protection law, it likely does not violate the more restrictive consumer protection laws of other states.154
Although California’s consumer protection laws are broad, in order to sustain a claim under California’s consumer protection laws, a plaintiff must satisfy the “reasonable consumer” test by showing that members of the general public are likely to be deceived.155 In a prominent case, Williams v. Gerber Products Company, a consumer alleged that fruit snacks that displayed the term “fruit juice” alongside pictures of fruit was misleading and in violation of the consumer protection act, where the only fruit juice in the snack was white grape juice from concentrate. 156 In Williams, the Court determined that a reasonable consumer should not have to search to find the true ingredients hidden on the side of the box.157 Therefore, a consumer could plausibly be deceived by the representations of the snack as containing real fruit juice.158
The debate over “milk” is in no way analogous to Williams, because here the modifying terms necessary to prevent confusion are prominently displayed on the front of the label right next to the word that they modify.159 Despite the presence of the word “milk” on a label, it is unlikely to believe that a consumer would see the words “almond” or “soy” in front of the word milk and immediately discount those words as meaningless.160 Supporting this common sense notion that words cannot be ignored is a legal notion that words cannot be rendered meaningless based only on their placement in relation to other words. 161 Because a reasonable consumer would not immediately discount those words, nor would legal principles allow discounting them, it is unlikely that the inclusion of the word “milk” would rise to the standard of unlawful, unfair, or fraudulent advertising, even under California’s broad consumer protection laws.162
C. Labeling Non-Dairy Products as “Milk” Is Not Deceptively Misdescriptive Under Trademark Laws
Although claims regarding the use of the word “milk” on plant-based products have not yet been raised in trademark actions, trademark law provides clarity in the labeling debate and again shows that the mere use of the term “milk” is not deceptive or confusing. 163 First, it is helpful to determine whether terms such as “almond milk” or “soy milk” can be deemed generic terms.164 As stated previously, a term can be deemed generic based either on consumer understanding or a determination that the term does not indicate the source of goods but rather a class of goods.165 Although consumers have not been specifically surveyed about their understanding of the words “almond milk,” “soy milk,” or other plant-based milk products, surveys have been distributed that probe consumers’ general opinion of these products.166 These surveys question consumers’ preferences for plantbased milks, without referring to the individual brands that produce these products.167 Furthermore, there are over fifty brands of soy milk and at least thirty brands of almond milk on the market. 168 Because of consumers’ general understanding that plant-based milks exist outside their individual brands, and the vast number of brands that produce plant-based milk, it is likely that categories such as “almond milk” or “soy milk” are the genus of which individual brands are species.169 Because terms such as “almond milk” or “soy milk” act as a genus, they are therefore generic terms that have a widely understood meaning and would not be confused with traditional cow milk.170
Trademark law may additionally assist in this debate where it prohibits registration of a trademark that is likely to cause confusion or deceive consumers; such tests will demonstrate that plant-based milks pose no risk of confusing consumers.171 The likelihood of confusion is determined by weighing factors in a multifactor test. 172 Because this test is specific for trademarks, not all factors are relevant here.173 However, many factors— such as the proximity of goods, similarity of marks, actual confusion, and degree of care likely to be exercised by the consumer—may be relevant to “milk.”174 Here, the goods are in close proximity, because they are both beverages that may be used for similar consumption such as use in cereal, coffee, baking, or as a stand-alone beverage.175 While it could be argued that the use of the word “milk” in terms such as “soy milk” and “almond milk” make them very similar to the word “milk,” the use of the qualifying terms “almond” and “soy” cannot be ignored.176 Although lawsuits have been brought based on the premise that consumers were confused, there is little evidence to support the fact that the general consumer, without any sort of political industry aims, is suffering from any confusion about plant-based milk.177 Finally, although milk and plant-based products are placed close together in most supermarkets, consumers likely choose their milk based primarily on the price, if not on characteristics such as whether it is organic or lactose-free. 178 Plant-based alternatives to milk are typically more expensive than dairy milk, and therefore, any consumers who may be confused would still be likely to purchase dairy milk, if that is what they desire.179 While these factors are not to be counted, but rather balanced against one another, with three factors weighing against a likelihood of confusion, it is unlikely that any consumers seeking dairy milk would be confused by plant-based alternatives.180
Trademarks may not be registered if they are deemed to be “deceptively misdescriptive” 181 as applied to the goods they represent; this test for whether a name is deceptively “misdescriptive” can be of use for “milk.”182 As stated, names or labels may be deemed “deceptively misdescriptive” if they are “misdescriptive” of the character, quality, function, composition, or use of the goods; if prospective purchasers are likely to believe the misdescription actually describes the goods; and if the misdescription is likely to affect the decision to purchase the goods.183 While an argument can be made that “almond milk” or “soy milk” or any other plant-based milk misdescribes the product as having the same characteristics of cow’s milk, the fact that these plant-based milks comprise their own generic category undermines this argument. 184 Therefore, the products are not being misdescribed as having the characteristics of milk, but rather being accurately described as having the characteristics of the plant-based genus to which the individual products belong.185
As previously shown, consumers are not likely to be confused by the word “milk” appearing in the generic name for plant-based milks.186 Because dairy milk and plant-based milks are interchangeable, it is possible that the description may impact a consumer’s decision to purchase plant-based milk products.187 However, because the description is accurate as to what the product is, a consumer has not been deceived but may simply be careless in making their decision.188 While trademark laws aim to prevent deception, they also cannot prevent all instances of mistake by a careless consumer.189
IV. Seemingly Trivial Dairy Labeling Disputes Signal Necessary Regulatory and Policy Changes
A. Courts Should Not Wait Indefinitely for Agency Regulation in Areas Where Existing Legal Frameworks Provide Analysis and Answers
The massive delays in obtaining agency instruction as to the issue of whether the term “milk” may be used in connection with non-dairy products demonstrates greater issues within the regulatory system. With rulemaking among agencies becoming increasingly difficult, courts should not wait around to give deference to agencies who have not yet issued regulations.190 As the process becomes more laborious and intricate, the amount of time required for agencies to promulgate rules and regulations will become much more debilitating and prevent courts from answering even the simplest of questions.191 With regard to the issue of labeling non-dairy milk, two courts have specifically referred the issue to the FDA four years apart.192 Moreover, the issue had clearly been brought to the FDA’s attention prior to these cases, as evidenced by the warning letter sent to Lifesoy nearly a decade ago.193 Still, the FDA has remained preoccupied with “competing priorities,” and has not offered any clarification on the matter.194 Without action on the part of the FDA, courts have been stuck with their hands tied as issues regarding non-dairy labeling continue to be brought before them.195 This inaction also led to the legislature’s introduction of the Dairy Pride Act, an act to prevent nondairy products being labeled with the word “milk.”196 The Act, which did not make it out of the first stage of the legislative process, was estimated to have only a four percent chance of ever becoming law.197 Congress and the courts have attempted to speak, and yet progress has come to a grinding halt as the FDA remains too busy to create, not merely interpret, rules and regulations that do not currently exist.198
Agency inaction, in and of itself, has largely been insulated from judicial review.199 Still, courts largely give deference to agencies in order to allow them to interpret their own rules and regulations.200 Because courts defer to agency decisions and do not review agency inaction, when agencies are slow to act, courts and other regulatory processes can be unreasonably slowed down.201 Some scholars argue that courts should not defer to agencies for interpretation of their own rules.202 However, such arguments are overly broad and do not adequately encapsulate the problem that the milk labeling cases point out. 203 Here, courts are not deferring to an agency’s interpretations; rather, courts are deferring to the FDA to either create an interpretation that broadens existing rules, or to create new rules altogether. 204 Under the doctrine of primary jurisdiction, courts are permitted to do this when “an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.”205 When determining whether an agency has primary jurisdiction, a court will consider the need to resolve the issue, whether Congress has placed the issue within the scope of authority of an administrative body, whether there are statutes that subject an industry or activity to comprehensive regulation, and whether expertise or uniformity is required in the administration of those regulations.206 Courts recognize that deferring to agencies under the primary jurisdiction doctrine delays reaching resolutions of potentially pressing issues, and have found that the possibility of multi-year long delays outweigh any benefits that may be obtained from deferring to an agency.207 Waiting for over a decade for the FDA to take a position on the use of the word “milk,” therefore, is simply unreasonable.208
Because courts have the discretion, and not a mandate, to defer to agencies in these instances, courts should refrain from deferring to the judgement of agencies where an answer or solution can be determined through one or multiple existing legal frameworks.209 Because courts would not need to wait a decade or more for agencies to promulgate rules, this could help to alleviate concerns, since deferring to agencies slows down the judicial process.210 This would be particularly useful in many scenarios, such as this one, where the agency has determined that it is simply too busy with “competing priorities” to offer guidance on a given topic. 211
B. The FDA Should Amend Current Regulations to Include a Reasonable Consumer Test
If courts are unwilling or unable to proceed on agency issues in such cases of agency inaction, agencies should ensure that the regulations and guidance are sufficient to cover any issues that may arise. 212 The FDA provisions, which prohibit the use of labeling on food that is deemed to be misleading, do not contain a reasonableness requirement.213 In fact, as case law points out, whether or not a label is false or misleading under the FDA labeling requirements should be viewed from the perspective of even the most trusting consumer.214 Reasonableness requirements, generally, prevent frivolous lawsuits and prevent claims from moving forward where no reasonable person would conclude that an injury resulted. 215 If such a reasonableness requirement existed, the cases that have been continued while the matter is referred to the FDA would likely have been able to move forward.216
Courts have already found that it is unreasonable, on the basis of consumer protection statutes, to assume that a consumer would be misled by the word “milk” appearing on a plant-based product.217 FDA labeling rules serve fundamentally the same purpose as consumer protection laws, preventing consumers from being taken advantage of.218 There is no reason to believe that this analysis would be different under the FDA rules—if they were amended to include a reasonableness requirement—than it has been under even the broadest consumer protection rules. 219 Reasonableness requirements prevent arbitrary decisions; there is no reason why food manufacturers should be arbitrarily punished for failing to precisely follow labeling requirements when that failure poses no risk to consumers.220
C. Laws Should Not Be Used as a Substitute for Common Sense
Going beyond the implications that labeling disputes have on the FDA and other regulatory bodies, commotion over the mere use of the term “milk” on non-dairy products signals a greater need for emphasis on common sense in order to maintain trust in the judicial system.221 Consumer protection laws arise from early precursors to tort law, specifically the Writ of Deceit.222 The Writ of Deceit, as its name suggests, applied only to acts where individuals swindled another, or in other words acts that involved the use of fraud or deception.223 Even today, the broadest of state consumer protection laws only prohibit “unlawful, unfair, or fraudulent acts or practices.”224 Unfortunately, these definitions have been stretched to include attempts to blame fast food companies for Americans overeating, sue tobacco companies because smokers believe “light” cigarettes are less dangerous, blame alcohol ads for underage drinking, and sue pharmaceutical companies for potential side effects of drugs even when plaintiffs never experience those side effects.225 While consumer protection laws should be available to right wrongs of businesses and service providers, these laws should not be left open for abuse.226 When a consumer willfully ignores what should be obvious to the average person, he should not be able to turn around and blame those who marketed or sold the product.227
Litigation over whether or not the word “milk” as it pertains to almond, soy, or other plant-based milks is deceptive or misleading is a strong example of unnecessary lawsuits.228 In the lawsuits discussed, the plaintiffs did not sue based on any injuries, such as allergic reactions or digestive difficulties, but rather based on some injury caused by the mere deception.229 Lawsuits such as these, which do not aim to address any real injury or concern, may lead to the general public losing faith in the judicial system.230 A nationwide Clarus poll found that 86% of Americans believe there is an increasing tendency for Americans to threaten legal action when things go wrong and 51% believe that people have been discouraged from engaging in normal activities due to fear of a frivolous lawsuit.231 Further, 74% of voters believe that judges should have the discretion to throw out civil claims that lack merit before they can go forward.232 Continuing to find merit in lawsuits over frivolous matters, such as the use of the word “milk” or other frivolous food suits, risks further weakening the trust of the American people in the judicial system.233 Where there has been no fraud or deception, common sense should prevail and require the dismissal of such suits, rather than deferring judgment until an agency can rule.234 As Justice William O Douglas once wrote, “common sense often makes good law”; common sense here dictates that cases dealing with an issue as ridiculous as the use of the word “milk” in the term “almond milk” be thrown out.235
Conclusion
The debate over whether the word “milk” can be used in conjunction with plant-based beverages commonly known as “almond milk,” “soy milk,” or any other non-dairy milk product has gone on for far too long. As long as the feud between the dairy and non-dairy industries continues without resolution, courts will continue to be the battlefield for wars fought with labeling laws as weapons. Courts continue to defer to the judgement of agencies, despite the long delays and the fact that every existing legal framework for analysis points to the same conclusion—the word “milk” is not going to deceive consumers. This indecision of the courts as they wait for agency action demonstrates ongoing problems within the regulatory system. In order to fix these problems, courts should decline to defer to agencies where issues are easy to solve based on existing legal frameworks. Furthermore, in drafting legal frameworks for labeling laws, agencies must be careful to include tests for reasonableness to prevent a flood of cases, such as the ones at issue here, where there is no reasonable harm resulting from the labels as written. Finally, courts should throw out cases where common sense creates an easy answer, such as the ones regarding labeling of nondairy products, rather than push the issue onto an agency that has been slow to act. These measures will both help to fix existing problems within the current regulatory system while simultaneously repairing the faith that the American people have in the judicial system.
*✕J.D., New England Law | Boston (2019); B.S. Animal Science and Chemistry, Delaware Valley University (2016).
1✕ Douglas Yu, US Dairy Milk Expected to Decline Until 2020, Mintel Report Shows, DAIRY REP.,
https://perma.cc/V43D-W5X8 (last updated Mar. 23, 2017); Mintel Press Team, US Sales of Dairy
Milk Turn Sour as Non-Dairy Milk Sales Grow 9% in 2015, MINTEL (Apr. 20, 2016), https://perma.cc/2SQF-MBMV.
2✕ James Loke Hale, What’s the Best Milk Alternative? A New Study Found this Non-Dairy Milk
Is the Most Nutritious, BUSTLE (Jan. 31, 2018), https://perma.cc/Y56H-B4EK.
3✕ See Caitlin Dewey, The Surprisingly Heated Political Battle Raging Over the Word Milk, Wash. Post (Feb. 10, 2017), https://perma.cc/L2JF-GLSK.
4✕ See, e.g., Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017); Gitson v. Trader Joe's Co., No. 13-cv-01333-VC, 2015 U.S. Dist. Lexis 170401, at 8 (N.D. Cal. Dec. 1, 2015); Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 13 (N.D. Cal. Dec. 10, 2013); Hood v. Wholesoy & Co., No. 12- cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 4 (N.D. Cal. July 12, 2013).
5✕ See Letter from the U.S. Food and Drug Administration to Lifesoy, Inc.: Warning Letter, Archived FDA Warning Letters (Aug. 8, 2008), https://perma.cc/V2UG-JP58 [hereinafter Letter from the FDA to Lifesoy]; Elaine Watson, FDA Too Busy with ‘Competing Priorities’ to Weigh into Plant Milk Debate, Food Navigator, https://perma.cc/T6FB-R7VH (last updated Sept. 1, 2017).
6✕ See Gitson, 2015 U.S. Dist. Lexis 170401, at 8; Kelley, 2017 U.S. Dist. Lexis 86971, at 18.
7✕ See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43–44 (1983).
8✕ See infra Part I.
9✕ See infra Part II.
10✕ See infra Part III.
11✕ See infra Part IV.
12✕ See infra Part IV.
13✕ See infra Part IV.
14✕ See Dewey, supra note 3.
15✕ See, e.g., Gitson v. Trader Joe's Co., No. 13-cv-01333-VC, 2015 U.S. Dist. Lexis 170401, at 8 (N.D. Cal. Dec. 1, 2015); Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 13 (N.D. Cal. Dec. 10, 2013); Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 4 (N.D. Cal. July 12, 2013); Kelley v. WWF Operating Co., No. 1:17- cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017).
16✕ Hood, 2013 U.S. Dist. Lexis 97836, at 4.
17✕ Id. at 21.
18✕ Ang, 2013 U.S. Dist. Lexis 173185, at 13.
19✕ Id.
20✕ Gitson, 2015 U.S. Dist. Lexis 170401, at 2.
21✕ Id. at 4.
22✕ Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017).
23✕ Id. (referring the matter to the FDA then staying the current proceedings with directions to check back every six months to see how the FDA regulations apply).
24✕ Watson, supra note 5.
25✕ See Kelley, 2017 U.S. Dist. Lexis 86971, at 14–15; Gitson, 2015 U.S. Dist. Lexis 170401, at 2; Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 2–3 (N.D. Cal. Dec. 10, 2013); Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 6 (N.D. Cal. July 12, 2013).
26✕ Letter from the FDA to Lifesoy, supra note 5.
27✕ Letter from the FDA to Lifesoy, supra note 5.
28✕ Letter from the FDA to Lifesoy, supra note 5 (showing that various actual violations are pointed out whereas the excerpted portion seen previously is said to be a comment implying it is not yet a violation, merely a suggestion).
29✕ Letter from the U.S. Food & Drug Admin., to Fong Kee Tofu Company, Inc., Warning Letter (Mar. 7, 2012), https://perma.cc/Z4D6-N3DZ.
30✕ Id.
31✕ Id.
32✕ See id.; Letter from the FDA to Lifesoy, supra note 5 (showing that both letters address outright violations of federal statute and merely comment that the use of the term “milk” is inappropriate in the given context).
33✕ See Katie Gates Calderon, Elizabeth Fessier & Lindey Heinz, Dairy vs. Plant-Based ‘Milks’: A Regulatory Stand-off, Law360 (Aug. 24, 2017, 10:59 AM EDT), https://perma.cc/7R6V-EPNE.
34✕ Yu, supra note 1; Mintel Press Team, supra note 1.
35✕ Mintel Press Team, supra note 1.
36✕ Yu, supra note 1; Mintel Press Team, supra note 1. 37 Hale, supra note 2.
38✕ CPG, FMCG & Retail, Americans Are Nuts for Almond Milk, Nielsen (Mar. 31, 2016), https://perma.cc/E5AH-TPN5.
39✕ See Sai Kranthi Vanga & Vijaya Raghavan, How Well Do Plant Based Alternatives Fare Nutritionally Compared to Cow’s Milk?, 55 J. Food Sci. & Tech. 10, 11 (2018); An HSUS Report: The Welfare of Cows in the Dairy Industry, Humane Soc’y Of The U.S. 2 (2009), https://perma.cc/8TJNP2N6.
40✕ Adam Chandler, Milk Producers Go Negative on Almond Milk, The Atlantic (July 12, 2016), https://perma.cc/5E8H-UHNK.
41✕ Id.
42✕ Id.
43✕ Dewey, supra note 3.
44✕ See Dewey, supra note 3.
45✕ See generally Daniel Malloy, Dairy Farms in Tight Squeeze over Use of Hormones, Pittsburgh Post-Gazette (Dec. 16, 2007), https://perma.cc/HK2R-ENNE.
46✕ See Terence J. Centner & Kyle W. Lathrop, Labeling rBST Derived Milk Products: State Responses to Federal Law, 45 U. Kan. L. Rev. 511, 511 (1997).
47✕ See generally Interim Guidance on the Labeling of Milk and Milk Products from Cows that Have Not Been Treated with Recombinant Bovine Somatotropin, 59 Fed. Reg. 6279 (Feb. 10, 1994).
48✕ See generally id.
49✕ See Massachusetts Dep’t of Public Health, Food Protection Program Policies, Procedures, and Guidelines, Guidelines for rBST Labeling of Fluid Milk and Milk Products, Mass.Gov (Mar. 28, 2006), https://perma.cc/RJ5B-7EU6. (date rev. June 30, 2015); see generally id.
50✕ See Malloy, supra note 45.
51✕ See generally Henry I. Miller, Don’t Cry over rBST Milk, NY Times (June 29, 2007), https://perma.cc/SVP2-5K25.
52✕ See Malloy, supra note 45; Miller, supra note 51.
53✕ See Kay Cummings, New Food Product Labels Can Lead to Better Informed Consumers, Mich. St. U. Extension (June 23, 2016), https://perma.cc/DH77-NEYA.
54✕ See 5 Dee Pridgen & Richard M. Alderman, Consumer Protection And The Law § 1:1 (2017).
55✕ 15 U.S.C.S. §§ 41–58 (LexisNexis through Pub. L. No. 116-56, approved May 31, 2019).
56✕ Id.
57✕ See generally Kathleen S. Morris, Expanding Local Enforcement of State and Federal Consumer Protection Laws, 40 Fordham Urb. L.J. 1903, app. (2016).
58✕ See Rory Van Loo, Helping Buyers Beware: The Need for Supervision of Big Retail, 163 U. Pa. L. Rev. 1311, 1377 (2015) (discussing how the FTC can go after retailers which use practices that intentionally confuse consumers in order to charge unfair prices).
59✕ Sylvia Zarski, Comment, Can You Judge Your Food by Looking at Its Cover? How Courts Application of Federal Preemption Laws Allows Misleading Food Labeling to Slip Through the Regulatory Cracks, 64 DEPAUL L. REV. 1119, 1123 (2015).
60✕ Cal. Bus. & Prof. Code § 17200 (LexisNexis 2020).
61✕ Stan Karas, Comment, The Role of Fluid Recovery in Consumer Protection Litigation: Kraus v. Trinity Management Services, 90 Calif. L. Rev. 959, 966–67 (2002).
62✕ Cal. Bus. & Prof. Code § 17500 (LexisNexis 2020).
63✕ Cal. Civ. Code § 1770 (LexisNexis 2020).
64✕ Id.
65✕ See, e.g., 21 U.S.C.S. § 343-1 (LexisNexis through Pub. L. No. 116-56, approved May 31, 2019).
66✕ See, e.g., EWG Calls on FDA to Reform Nutrition Fact Labels to Address Added Sugars and Over Fortification of Food, Envtl. Working Group (June 30, 2014), https://perma.cc/92T4-WBKU; Greg Winter, Calls Increasing for Clarity on Food Labels, NY Times (July 2, 2002), https://perma.cc/HSJ4-C8VW.
67✕ See, e.g., 15 U.S.C.S. §§ 1451–61 (LexisNexis through Pub. L. No. 116-56, approved May 31, 2019); Morris, supra note 57, at app.
68✕ 15 U.S.C. §§ 1451–61 (applying consumer protection law to goods other than those regulated by the FDA).
69✕ 21 U.S.C.S. § 343-1.
70✕ Id. § 331(a)–(c).
71✕ Id. § 343(a).
72✕ Id. § 343(b).
73✕ Id. § 343(c).
74✕ 21 U.S.C.S. § 343(d).
75✕ Id. § 321(n).
76✕ See V.E. Irons, Inc. v. United States, 244 F.2d 34, 45 (1st Cir. 1957).
77✕ Id. at 36–40.
78✕ Id. at 40 (quoting Fed. Trade Comm’n v. Standard Educ. Soc’y, 302 U.S. 112, 116 (1937)).
79✕ See 21 U.S.C.S. §§ 331(a), 333(a).
80✕ See generally Robert G. Bone, Taking the Confusion out of “Likelihood of Confusion” Toward a More Sensible Approach to Trademark Confusion, 106 NW. U. L. REV. 1307 (2012) (providing the history of the likelihood of confusion test).
81✕ 15 U.S.C.S § 1114(1)(a) (LexisNexis through Pub. L. No. 116-56, approved May 31, 2019).
82✕ See Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 Calif. L. Rev. 1581, 1588 (2006) (providing comparison of factors used across jurisdictions in multifactor likelihood of confusion tests).
83✕ See id.
84✕ AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979); see also I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 46 (1st Cir. 1998); Frisch’s Rests., Inc. v. Elby’s Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir. 1982) (stating the eight factors outlined in the Sleekcraft case are used in other cases).
85✕ See AMF, Inc., 599 F.2d at 350.
86✕ See In re Budge Mfg. Co., 857 F.2d 773, 775 (Fed. Cir. 1988).
87✕ Id.
88✕ Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).
89✕ Id.
90✕ See A.J. Canfield Co. v. Honickman, 808 F.2d 291, 298–99 (3d Cir. 1986) (describing the genus, species distinction (e.g. soda is a generic term which constitutes a genus, specific sodas may constitute a species; chocolate fudge is also a genus, because it generically references a chocolate product regardless of who makes it)).
91✕ See 15 U.S.C.S § 1114(1)(a) (LexisNexis through Pub. L. No. 116-56, approved May 31, 2019); Bayer Co. v. United Drug Co., 272 F. 505, 509 (S.D.N.Y. 1921).
92✕ See 15 U.S.C.S. § 1064; Bayer Co., 272 F. at 509.
93✕ 15 U.S.C.S. §§ 1052, 1064.
94✕ See A.J. Canfield Co., 808 F.2d at 298–99.
95✕ See Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 21 (N.D. Cal. July 12, 2013); Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017).
96✕ See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43–44 (1983) (stating that although the court will not defer to arbitrary and capricious agency decisions, it will make efforts to uphold less than clear decisions as long as the agency’s reasoning can be reasonably be discerned).
97✕ See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1051 (9th Cir. 2000); United States v. Philip Morris USA Inc., 686 F.3d 832, 837 (D.C. Cir. 2012).
98✕ See Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1387 (1992).
99✕ Id.
100✕ Id. at 1388.
101✕ See Letter from the FDA to Lifesoy, supra note 5 (containing the language which shows that the FDA has been aware of the milk labeling issue since 2008).
102✕ Associated Press, Soy “Milk”? Even Federal Agencies Can’t Agree on Terminology, LA Times (July 3, 2017, 3:20 PM), https://perma.cc/654F-AT2N.
103✕ Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017) (holding that the proceedings were stayed until the FDA issues rules).
104✕ See, e.g., Joseph P. Fried, U.S. Courts are Jammed by Caseload, NY Times (July 9, 1984), https://perma.cc/LJ4K-ZDXD.
105✕ See infra Part IV.
106✕ See generally Phillip K. Howard, The Death of Common Sense: How Law Is Suffocating America (1994).
107✕ Avery & Sons v. Meikle & Co., 81 Ky. 73, 79 (1883).
108✕ Werbel v. Pepsico, Inc., No. C 09-04456 SBA, 2010 U.S. Dist. Lexis 76289, at 9 (N.D. Cal. July 1, 2010).
109✕ Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 12–13 (N.D. Cal. Dec. 10, 2013).
110✕ See Avery & Sons, 81 Ky. at 81.
111✕ See Richard M Zielinski, Vexatious Litigation: A Vexing Problem, BOS. B.J. (Sept. 12, 2012), https://perma.cc/38CZ-WKSD.
112✕ Constantine Spyrou, The Dairy Pride Act Is Poorly Written, Big Dairy Propaganda, Foodbeast (Mar. 31, 2017), https://perma.cc/2BYB-QDTU.
113✕ Elizabeth Warren, Corporate Capture of the Rulemaking Process, Reg. Rev. (June 14, 2016), https://perma.cc/QF6V-L93K.
114✕ National Agriculture Statistics Service, Dairy Cattle and Milk Production, USDA (Oct. 2014), https://perma.cc/Y3EN-E54N.
115✕ Warren, supra note 113.
116✕ See generally 21 U.S.C.S. § 343-1 (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020).
117✕ See The Times Editorial Board, Got ‘Milk’? Dairy Farmers Rage Against Imitators but Consumers Know What They Want, LA Times (Jan. 4, 2017), https://perma.cc/YX5W-8CKE.
118✕ Dan Charles, Why Do Milk Prices Spike and Crash? Because It’s like Oil, NPR (Aug. 5, 2016), https://perma.cc/E9UF-GZWF.
119✕ James Haggerty, Milk Pricing Imbalance Causing Many Local Dairy Farmers to Sell Off Herds, The Times-Tribune (May 3, 2010), https://perma.cc/ZB35-XU77.
120✕ Tovia Smith, As Milk Prices Decline, Worries About Dairy Farmer Suicides Rise, NPR (Feb 27, 2018, 11:31 AM ET), https://perma.cc/MQ3M-VPV7.
121✕ Id.
122✕ See id. (stating that the Farm Bill Safety Net Provisions eased the stress of dairy farmers); Julie Murphree, The Farm Bill Provides a Safety Net to Farmers and Ranchers During Tough Times, Ariz. Farm Bureau (Oct. 18, 2017), https://perma.cc/G34F-7BQA (discussing a farmer safety net provision in the Farm Bill that would include price loss coverage to insulate farmers from unstable market conditions).
123✕ Annual Lobbying by Dairy Farmers of America, Opensecrets, https://perma.cc/88L2-9RB9 (last visited Mar. 24, 2020).
124✕ Watson, supra note 5.
125✕ Interim Response Letter from the U.S. Food and Drug Administration to the Good Food Institute, Regulations.Gov (Aug. 29, 2017), https://perma.cc/5CC4-2YVU [hereinafter Interim Letter from the FDA to the Good Food Institute].
126✕ See 21 U.S.C.S §§ 301, 331(a)–(c), 343(a)–(d) (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020).
127✕ See, e.g., 21 C.F.R. §§ 101.22, 101.30 (2010); Letter from the U.S. Food and Drug Administration to Middle East Bakery, Inc.: Warning Letter, FDA Warning Letters (Sept. 18, 2014), https://perma.cc/6SRA-FDTU.
128✕ V.E. Irons, Inc. v. United States, 244 F.2d 34, 40 (1st Cir. 1957); see, e.g., Weeks v. United States, 224 F. 64, 67–68 (2d Cir. 1915).
129✕ See 21 U.S.C.S. § 343(c).
130✕ See CBS & AP News, Dairy Producers in a Food Fight over “Fake Milk,” CBS (Mar. 3, 2017, 11:57 AM), https://perma.cc/8F98-QNPW.
131✕ See What Are Modifiers? How to Use Them Correctly, Grammarly, https://perma.cc/A5WU- 4ZLQ (last visited Mar. 24, 2020).
132✕ See Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 12–13 (N.D. Cal. Dec. 10, 2013).
133✕ See id.; see also V.E. Irons, Inc., 244 F.2d at 40.
134✕ 21 U.S.C.S. § 343(b)–(c).
135✕ 21 C.F.R. § 101.3(e)(1) (2010).
136✕ Erin Brodwin, Here’s the Truth about ‘Healthy’ Milk Alternatives, Bus. Insider (Aug. 6, 2015, 5:56 PM), https://perma.cc/6PRR-X66S.
137✕ Id.
138✕ 21 C.F.R. § 101.3(e)(2)(ii).
139✕ 21 C.F.R. § 102.5(d).
140✕ See Caroline W. Bynum, Holy Feast And Holy Fast: The Religious Significance Of Food To Medieval Women 41 (1988).
141✕ See William Shurtleff & Akiko Aoyagi, History Of Soy Milk And Other Non-Dairy Milks (1226–2013) 63 (2013).
142✕ Yu, supra note 1.
143✕ See 21 C.F.R. § 102.5 (d); Bynum, supra note 140, at 41; Shurtleff & Aoyagi, supra note 141, at 63.
144✕ 21 U.S.C.S. § 343(d) (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020).
145✕ 21 C.F.R. § 131.110 (containing this description as well as the means of analysis, optional ingredients, nomenclature, and label declaration).
146✕ See id.
147✕ See id.
148✕ See 21 C.F.R. § 102.5(d); Bynum, supra note 140, at 41; Shurtleff & Aoyagi, supra note 141, at 63.
149✕ Morris, supra note 57, at app.
150✕ Cal. Milk Advisory Bd., Real California Milk Facts, Real Cal. Milk, https://perma.cc/4N4U-JPZF (last visited Mar. 24, 2020).
151✕ Anthony J. Anscombe & Mary Beth Buckley, Jury Still out on the “Food Court”: An Examination of Food Law Class Actions and the Popularity of the Northern District of California, Bloomberg Law (July 1, 2013, 5:34 PM), https://news.bloomberglaw.com/product-liabilityand- toxics-law/jury-still-out-on-the-food-court-an-examination-of-food-law-class-actions-andthe- popularity-of-the-northern-district-of-california (pointing out that food mislabeling suits have become so popular in the Northern District of California that it has become known as the “Food Court”); Zarski, supra note 59, at 1123.
152✕ See Herbert Broom, A Selection Of Legal Maxims, Classified And Illustrated 141– 43 (3d ed. 1852).
153✕ See 2 Edward E. Deacon, A Digest Of The Criminal Law Of England 735, 839 (1831).
154✕ See Unfair Competition Litigation, 26 Cal. L. Revision Comm’n Rep. 191, 202 (1996) (stating that California Consumer Protection Laws are “the broadest such statute in the country”).
155✕ Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995).
156✕ Williams v. Gerber Prods. Co., 552 F.3d 934, 936 (9th Cir. 2008).
157✕ Id. at 939–40. 158 Id. at 939.
159✕ See id.
160✕ Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 12–13 (N.D. Cal. Dec. 10, 2013).
161✕ United States v. Mescall, 215 U.S. 26, 31–32 (1909) (discussing statutory interpretation where general words were placed after specific words, and the Court determined that the mere placement could not render those words useless).
162✕ See Cal. Bus. & Prof. Code § 17200 (LexisNexis 2020).
163✕ See Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017); Gitson v. Trader Joe's Co., No. 13-cv-01333-VC, 2015 U.S. Dist. Lexis 170401, at 8 (N.D. Cal. Dec. 1, 2015); Ang, 2013 U.S. Dist. Lexis 173185 at 12–13; Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 4 (N.D. Cal. July 12, 2013).
164✕ See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).
165✕ See 15 U.S.C. §§ 1052, 1064 (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020); A.J. Canfield Co. v. Honickman, 808 F.2d 291, 298–99 (3d Cir. 1986) (describing the genus, species distinction. For example, soda is a generic term which constitutes a genus, specific sodas may constitute a species. Chocolate fudge is also a genus, because it generically references a chocolate product regardless of who makes it.); Abercrombie & Fitch Co., 537 F.2d at 9; Bayer Co. v. United Drug Co., 272 F. 505, 509 (S.D.N.Y. 1921).
166✕ See Elaine Watson, Why do Consumers Buy Plant-Based Dairy Alternatives? And What do They Think Formulators Need to Work On?, Food Navigator (Feb. 8, 2018, 16:21 GMT), https://perma.cc/BW7G-XUVZ.
167✕ See id.
168✕ Rachel Clemons, Milking the Truth, CHOICE (Aug. 21, 2019) https://perma.cc/A4YBGWGZ; The Best Soy Milk Brands, RANKER, https://perma.cc/GC6M-B57M (last visited Mar. 24, 2020).
169✕ See Watson, supra note 166; The Best Soy Milk Brands, supra note 168.
170✕ See Abercrombie & Fitch Co., 537 F.2d at 9.
171✕ See In re Budge Mfg. Co., 857 F.2d 773, 775 (Fed. Cir. 1988); Beebe, supra note 82, at 1588.
172✕ See, e.g., AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979); see also I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 43 (1st Cir. 1998); Frisch's Rests., Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir. 1982).
173✕ See, e.g., AMF, Inc., 599 F.2d at 348 n.11; see also I.P. Lund Trading ApS, 163 F.3d at 43; Frisch's Rests., Inc., 670 F.2d at 648.
174✕ See, e.g., AMF, Inc., 599 F.2d at 348–49; see also I.P. Lund Trading ApS, 163 F.3d at 43; Frisch's Rests., Inc., 670 F.2d at 648.
175✕ See Watson, supra note 166.
176✕ Cf. E. Ohio Gas Co. v. Limbach, 575 N.E.2d 132, 134 (Ohio 1991) (stating that a court cannot simply ignore words in a statute; likewise consumers cannot just ignore plainly printed words).
177✕ See Mary Ellen Shoup, Plant-Based Industry Weighs in on Dairy Pride Act: ‘The Consumer is Not Confused,’ Dairy Reporter (Nov. 22, 2017, 16:18 GMT), https://perma.cc/L445-QMQR.
178✕ See generally Kuo S. Huang & Don P. Blayney, How Dairy Price Changes Influence Consumers’ Welfare, Econ. Res. Service U.S. Dep’t Of Agric. (Apr. 2003), https://perma.cc/T3PF- 42SG.
179✕ See, e.g., Ellen Douglas, The Pros and Cons of Almond Milk, 2bstronger (2012), https://perma.cc/59YD-6XTP.
180✕ See Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) (stating that while the factors are important it is a totality analysis).
181✕ See id. (intending to convey that “deceptively misdescriptive” would be a name that both falsely identifies the contents of a product and that as a result could reasonably deceive a consumer.).
182✕ See 15 U.S.C.S. § 1052 (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020).
183✕ In re Budge Mfg. Co., 857 F.2d 773, 775 (Fed. Cir. 1988).
184✕ See supra Part III(c).
185✕ See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).
186✕ See supra Part III(c).
187✕ See Watson, supra note 166.
188✕ See Avery & Sons v. Meikle & Co., 81 Ky. 73, 81 (1883).
189✕ See id.
190✕ See McGarity, supra note 98, at 1387.
191✕ See McGarity, supra note 98, at 1388.
192✕ See Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017); Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 21 (N.D. Cal. July 12, 2013).
193✕ Letter from the FDA to Lifesoy, supra note 5.
194✕ Interim Letter from the FDA to the Good Food Institute, supra note 125.
195✕ See Kelley, 2017 U.S. Dist. Lexis 86971 at 14–15; Gitson v. Trader Joe's Co., No. 13-cv- 01333-VC, 2015 U.S. Dist. Lexis 170401, at 2 (N.D. Cal. Dec. 1, 2015); Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 2 (N.D. Cal. Dec. 10, 2013); Hood, 2013 U.S. Dist. Lexis 97836 at 6.
196✕ Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday Act, S. 130, 115th Cong. (2017).
197✕ S. 130: Dairy Pride Act, Govtrack, https://perma.cc/77GG-C8H2 (last visited Mar. 24, 2020).
198✕ See Gitson, 2015 U.S. Dist. Lexis 170401 at 2.; Ang, 2013 U.S. Dist. Lexis 173185 at 2; Emily Byrd, FDA Soy Milk Decision: Waiting in the Checkout Line, Good Food Inst. (Sept. 12, 2017), https://perma.cc/HA87-3VDL; S. 130: Dairy Pride Act, Govtrack, https://perma.cc/77GG-C8H2 (last visited Mar. 24, 2020).
199✕ See generally Lisa Shultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
200✕ See generally Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833 (2001).
201✕ See generally Daniel T. Shedd, Administrative Agencies and Claims of Unreasonable Delay: Analysis of Court Treatment, Cong. Res. Service (Mar. 21, 2013), https://perma.cc/JXY5-TA7Y.
202✕ James N. Christman, David S. Harlow & Craig S. Harrison, Courts Should Not Defer to Agencies’ Interpretations of Their Own Rules, Wash. Legal Found. (May 12, 2000), https://perma.cc/6KQW-TRM5.
203✕ See Elizabeth Shogren, Should Courts Defer to the Expertise of Agencies?, High Country News (Apr. 17, 2017), https://perma.cc/T9F7-8PLG.
204✕ See 21 U.S.C.S. § 343(a)–(d) (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020); Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 14–15 (E.D. Cal. June 5, 2017); 21 C.F.R. § 101.18 (2010) (showing that none of the current laws or regulations specifically apply to the matter at issue, nor do current interpretations exist to which deference should be granted).
205✕ Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008).
206✕ Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002).
207✕ See Bryan Santaguida, Comment, The Primary Jurisdiction Two-Step, 74 U. CHI. L. REV. 1517, 1523 (2007).
208✕ See, e.g., Nat’l Commc’ns Ass’n v. AT&T Corp., 46 F.3d 220, 225 (2d Cir. 1995) (finding that a two- to five-year delay outweighed any possible benefit where the factual problem at issue was relatively simple).
209✕ See, cf., Christman, Harlow & Harrison, supra note 202 (arguing against Chevron deference, but similarly showing that deference to agencies generally presents numerous issues).
210✕ See generally Shedd, supra note 201 (discussing the concerns of a slow judicial process due to deferring to agencies).
211✕ Cass R. Sunstein & Adrian Vermeule, The Law of “Not Now”: When Agencies Defer Decisions, 103 Geo. L.J. 157, 159 (2014); Interim Letter from the FDA to the Good Food Institute, supra note 125.
212✕ See Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3439 (Jan. 25, 2007).
213✕ 21 U.S.C.S. § 343 (LexisNexis through Pub. L. No. 116-139, approved Apr. 24, 2020).
214✕ V.E. Irons, Inc. v. United States, 244 F.2d 34, 40 (1st Cir. 1957).
215✕ See generally Victor E. Schwartz & Cary Silverman, Common-Sense Construction of Consumer Protection Acts, 54 U. Kan. L. Rev. 1, 38–49 (2005).
216✕ See Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017); Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 21 (N.D. Cal. July 12, 2013).
217✕ Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 12–13 (N.D. Cal. Dec. 10, 2013).
218✕ See FDA: Foods Must Contain What Label Says, FDA, https://perma.cc/94ZC-6X5Q (last updated Feb. 04, 2013); Pridgen & Alderman, supra note 54, at 5.
219✕ See Ang, 2013 U.S. Dist. Lexis 173185 at 12–13.
220✕ Cf. David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135, 149–51 (2010) (discussing the importance of the standard of review for agency decisions; if these decisions must be deemed reasonable to prevent arbitrary rule making it follows that the rules they make could also benefit from reasonableness requirements).
221✕ See Julian Baggini, If You Want People to Trust You, Stick to Commonsense Morality, The Guardian (Apr. 8, 2016, 10:07 EDT), https://perma.cc/CJ9L-KS5D.
222✕ See W. Page Keeton Et Al., Prosser & Keeton On Torts, 726–27 (5th ed. 1984).
223✕ Id.
224✕ Cal. Bus. & Prof. Code § 17200 (LexisNexis 2020).
225✕ Schwartz & Silverman, supra note 215, at 38–49.
226✕ Schwartz & Silverman, supra note 215, at 49.
227✕ See Avery & Sons v. Meikle & Co., 81 Ky. 73, 81 (1883).
228✕ Ang v. Whitewave Foods Co., No. 13-cv-1953, 2013 U.S. Dist. Lexis 173185, at 12–13 (N.D. Cal. Dec. 10, 2013) (finding that claims such as these are completely implausible).
229✕ Kelley v. WWF Operating Co., No. 1:17-cv-117-LJO-BAM, 2017 U.S. Dist. Lexis 86971, at 18 (E.D. Cal. June 5, 2017); Gitson v. Trader Joe's Co., No. 13-cv-01333-VC, 2015 U.S. Dist. Lexis 170401, at 8 (N.D. Cal. Dec. 1, 2015); Ang, 2013 U.S. Dist. Lexis 173185 at 13; Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013 U.S. Dist. Lexis 97836, at 4 (N.D. Cal. July 12, 2013).
230✕ See Ron Faucheux, By the Numbers: Americans Lack Confidence in the Legal System, The Atlantic (July 6, 2012), https://perma.cc/LH5S-Y3CW.
231✕ Id.
232✕ Common Good, New Nationwide Poll: Most Voters Distrust U.S. Legal System, Pr Newswire (June 26, 2012, 4:23 ET), https://perma.cc/W6G8-7TFE.
233✕ See Amanda Fiegl, Frivolous Food Lawsuits, Smithsonian (June 8, 2009), https://perma.cc/433P-RS5D.
234✕ Schwartz & Silverman, supra note 215, at 38–49.
235✕ Peak v. United States, 353 U.S. 43, 46 (1957).