Plaintiff brings this action on behalf of all persons in the United States who, at any time since four years prior to the filing of this complaint, purchased any Silk Almond milk beverage (“Silk Almond Beverages”) manufactured, marketed, distributed, and sold by WWF Operating Company, dba White Wave Services, Inc. (“WhiteWave” or “Defendant”).
This case arises out of the false, misleading, and deceptive marketing practices of Defendant’s Silk Almond milk products. Defendant has deceptively informed and led its customers to believe that they were purchasing, for a premium price, a dairy milk alternative that is nutritionally equivalent, and even superior, to dairy milk, as defined by the U.S. Food & Drug Administration (the “FDA”).
As alleged, Silk Almond Beverages significantly lack many of the essential nutrients and vitamins provided in dairy milk, which Defendant fails to disclose to and actively conceals from consumers.
By calling its Silk Almond Beverages “milk”, a term historically used to define cow’s milk, Defendant has capitalized on reasonable consumers’ understanding of the well-known health benefits and essential nutrients that dairy milk provides without actually providing those health benefits and essential nutrients. Moreover, Defendant’s entire marketing strategy portrays its Silk Almond Beverages as nutritionally superior to dairy milk.
Defendant fails to label its Silk Almond Beverages as “imitation milk”, as required by the FDA, which requires products to be labeled “imitation” if there is any reduction in the content of essential nutrients present in a measurable amount in the standardized food for which the product is substituting. Thus, Silk Almond Beverages must be labeled “imitation milk” because they are, in fact, nutritionally inferior to dairy milk due to their reduction in the content of essential nutrients present in a measurable amount in dairy milk, as identified above and throughout this complaint.
Moreover, because Defendant utilizes the common or usual name of a food (i.e. “milk”) but fails to reveal the basic nature and characterizing ingredients of the Silk Almond Beverages, in accordance with 21 C.F.R. § 102.5(b), Defendant must label its Almond Beverages as “imitation milk”, as required by 21 C.F.R. § 101.3(e).
The Complaint alleges that the amount of essential vitamins and nutrients provided by dairy milk has a material bearing on price and consumer acceptance of products attempting to substitute dairy milk. WhiteWave has labeled its products to highlight its low calorie and fat content as compared to fat-free dairy milk and has been successful in capturing the market share previously attributed to dairy milk due to its omissions regarding the actual nutritional comparison of essential nutrients. By deceiving consumers about the nature, quality, and/or ingredients of its products, WhiteWave is able to command a premium price, increasing consumers’ willingness to pay and reduce the market share of competing products, thereby increasing its own sales and profits.
The complaint also alleges that Defendant’s deceptive labeling poses a serious health concern to consumers. In fact, the 2015 Dietary Guidelines Advisory Committee Report found that in cases where people do not consume dairy, the levels of calcium, magnesium, iron, vitamin A and riboflavin drop below the recommended intake, and intake levels of potassium, vitamin D and choline also drop substantially.