United States: The Milky Way Debate – Can "Not Milk" Compete Against The Real Thing?

In the past 12th of December, the Ethics Juri (EJ) of the Advertising Self-Regulation Association deliberated in yet another request, this time with DANONE PORTUGAL, S.A. (“Danone”) and LACTOGAL – PRODUTOS ALIMENTARES, S.A. (“Lactogal”) as parties.

Lactogal presented a complaint to the EJ concerning Danone's latest advertising initiative related to the brand Alpro, that had been using a new slogan “ALPRO THIS IS NOT MILK” and had precisely been advertising with this slogan in packaging, folders, television, internet, outdoors and the press.

Now the center argument of the complaint filed is that the products “ALPRO THIS IS NOT MILK” are not milk, but a plant based solution. Yet, Danone had been, according to Lactogal, constructing the advertising model to make everything resemble a milk product, with allusive images, from top to bottom, thus trying to make the average consumer believe that there would be no differences between that product and milk, except for the little detail that it would not be named “milk”.

According to the claims made, the product would be so similar to milk that it would possibly induce the average consumer in mistake and deceive him or her into what would be an impulsive purchase. As such, the practice at hand would have to be considered a disloyal commercial practice.  It was then deemed that the allegation “looks and tastes like milk” is also not true, since the ingredients and natural composition of the product were immensely different to milk.

On the other hand, Danone had both the Law and the general principles of advertising Law on their side, since the EJ considered that, because the products satisfy the same or very similar needs, they could be subject to comparative advertising, also taking into consideration that Alpro's product is an alternative to dairy.

In addition, the brand also states that the product ALPRO THIS IS NOT MILK was however unsusceptible of being confused with milk, mentioning that the utilization of milk aromas does not induce the consumer in mistake and that it does not represent, as per the scientific data available, a concern for the health of consumers.

The Ethics Juri , in compliance, considered that the average consumer would not confuse the ALPRO THIS IS NOT MILK with a dairy product. In addition, the EJ also considered that the commercial communications in analysis would represent comparative advertising and, as such, would need to comply with the demands and specific provisions of the Portuguese Advertising Code, because the products establish a meaningful intersection, because ought to satisfy the same needs.

Clearly, the limits of comparative advertising and loyal communications to the consumer are tested with such a product. It does seem, however, in accordance with the Ethics Juri decision, that a product that clearly states it is not milk can not be considered as to be inducing a consumer in mistake, specially taking into consideration that Alpro is a very well known brand that produces plant based products as an alternative.

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