On March 9, 2018, on behalf of the Good Food Institute, Nigel Barrella submitted an amicus (friend-of-the-court) brief in Painter v. Blue Diamond Growers, a lawsuit alleging that Blue Diamond’s almond milk is misbranded under federal law. Attorneys for the plaintiff have argued that almond milk should be labeled “imitation milk.” The district court judge had rejected this argument, and the plaintiff appealed that ruling to the Ninth Circuit Court of Appeals.
In the brief, GFI argues that the Food Drug and Cosmetic Act’s “imitation” provision was not intended to reach distinct products like almond milk, and that the history of FDA’s regulation confirms this. GFI also argues that the plaintiff’s reading of the law leads to absurd results and could even be unconstitutional. You can read the full brief here.
You can also read the other briefs in this case: Painter’s Opening Brief, Blue Diamond’s Brief, and Painter’s Reply Brief.
One unusual aspect of this case is that the plaintiff did not agree to GFI’s intervention, which forced GFI to file a motion for leave to file the brief. For more information, see that motion, the plaintiff’s opposition, and GFI’s reply. As is the practice of the Ninth Circuit, the panel deciding the case will also decide whether GFI’s brief should be filed and considered by the panel.
A decision in the case is anticipated next year. This post may be updated.
Update: On December 20, 2018, the Ninth Circuit affirmed the dismissal of the complaint — a victory for the almond milk producers, the firm’s client, and common sense.
