In a complaint filed in New York on October 30, plaintiff Jasmine Brown alleges that Miyoko’s Kitchen vegan butter - which is made from coconut oil, sunflower oil and cultured cashew nuts – “basks in dairy’s ‘halo’ by using familiar terms to invoke positive traits, including the significant levels of various nutrients typically associated with real dairy foods.”
Miyoko’s Kitchen vegan butter, alleges Brown, meets the FDA standard of identity for margarine, but not butter (which mandates at least 80% milk fat), and is nutritionally inferior to both because it lacks “Vitamin A, Vitamin D and calcium.”
“Consumers in America know that butter … is made exclusively from milk or cream, or both, and contains not less than 80% milk fat.”
The package also features a golden yellow stripe, “the color associated with a fresh pat of butter,” adds Brown, who notes that it is also “displayed for sale adjacent to margarine and butter in the dairy section… (ii) contains pictorial representations, imagery or references to these products on packages that indicate the uses and functionality are identical to common uses of margarine and butter and (iii) directions for use compare the products to margarine and butter.”
Miyoko Schinner: No one is being duped
In reality, however, founder Miyoko Schinner told FoodNavigator-USA, it's pretty hard to argue that consumers are confused by plant-based products bearing the terms ‘milk,’ ‘cheese,’ and ‘yogurt,’ because they are nearly always accompanied by additional wording (almond, soy, vegan), imagery (eg. almonds), or other qualifiers (‘plant-based,’ ‘dairy-free’) that make it abundantly clear that they are not made from cow’s milk.
Indeed, given that many consumers are buying these products precisely because they are dairy-free, ambiguity on this point is not in anyone’s interests, she said.
“Our latest packaging says ‘cultured vegan butter made from plants,’ and clearly spells out that it’s vegan and it’s made from plants, it also has a vegan logo [the previous iteration – which is referenced in the lawsuit - did not say ‘made from plants’ on the front].”
The new packaging includes the phrase, ‘Cashew cream fermented with live cultures,’ and the phrase ‘Melts, browns, bakes, and spreads phenomenally,’ whereas a previous iteration said, ‘Melts, browns, bakes and spreads like butter.’
'We want to really drive the conversation about what exactly constitutes a ‘dairy’ product in the future'
Asked why she had decided to use the terms ‘butter’ and ‘cheese’ on pack given the risk of litigation, she added: “At some point you have to [decide whether you are going to] hide behind the curtain or go out on stage and say who you really are and what you are really trying to do, and we made that decision. This is something that could potentially impact the entire industry so we are being proactive.
“We really believe that the landscape of dairy is changing rapidly and innovation is driving that change. We’re trying to revolutionize how we make dairy products by making them from plants, and we believe that is going to become the new norm.
“We want to really drive the conversation about what exactly constitutes a ‘dairy’ product in the future. There may come a time when all dairy products come from plants and at that point, you could ask are they really ‘dairy free’ or are they the new dairy?”
Ingredients list, Miyoko's Kitchen cultured vegan butter: Organic Coconut Oil, Filtered Water, Organic Sunflower Oil, Organic Cashews, Organic Sunflower Lecithin, Sea Salt, Cultures
Attorney: A court decision to allow it to be labeled 'butter' would, by extension, allow margarines and vegetable oil spreads to be labeled 'butter'
So what do attorneys make of the case?
William Dance, an attorney at Tucker Ellis, said the complaint was carefully constructed: "The key argument is not that reasonable consumers would think Miyoko’s butter actually is dairy butter, but rather that they would “expect that the Products are nutritionally equivalent to butter or margarine, when they are inferior – lacking vitamin A, D, E and calcium.'"
He added: "The implication of nutritional equivalence is a much more nuanced deception claim that could stand even when a reasonable consumer understands Miyoko’s is not dairy butter. And while there are many non-dairy butters available, such as peanut and apple butters – both of which have their own FDA regulations – none of them look like dairy butter, as Miyoko’s does, or are packaged with images – a yellow pat melting on toast– and words emphasizing the similarity between this vegan butter and dairy butter, as Miyoko’s is.
"Miyoko’s website even describes the company as 'Tomorrow’s Creamery,' further suggesting identity between Miyoko’s butter and dairy butter."
The complaint puts the court in an interesting predicament, he said. "If the product is neither dairy butter nor even margarine, but is a butter-like vegetable oil spread, then it competes with many other products that, under FDA regulations, cannot be labeled as butter or margarine.
"A court decision to allow it to be labeled 'butter' would, by extension, allow margarines and vegetable oil spreads to be labeled 'butter' and would eviscerate FDA’s complex and long-standing regulatory framework for dairy butter, margarine, and vegetable oil spreads."
Sunflower Oil, Organic Cashews, Organic Sunflower Lecithin, Sea Salt, Cultures
Attorney: 21 CFR 101.3 allows products to be called by their common or usual name if they don’t have names specified or required by regulation
However, Bill Acevedo, attorney at Wendel Rosen Black & Dean, told FoodNavigator-USA that: “The packaging clearly states that it is a vegan butter...”
“Ignoring” the fact that consumers know what vegan means, he said, “Plaintiff asserts that the product should nevertheless be called imitation butter. Yet, 21 CFR 101.3 allows products to be called by their common or usual name if they don’t have names specified or required by regulation.”
And even if ‘vegan butter’ is not a common or usual name, the regulation also allows the product to be called by an ‘appropriately descriptive term, he pointed out, “which arguably appears to be the case here. As such, a statement of identity challenge is not likely to be prevail.”
In Ang, et al. v. WhiteWave Foods - a similar case taking issue with plant-based ‘milk’ labels - the court was satisfied that ‘almond milk,’ ‘soymilk,’ and ‘coconut milk’ were appropriate descriptive terms that adequately distinguished the challenged products from dairy milk, he added.
Do we know what consumers think about vegan butter?
Second, while the Complaint generally alleges that “Consumers prefer butter over its imitators,” this is by no means clear, he said.
“To the contrary, consumers who choose to follow a vegan diet would not use traditional butter. Consumers who have ethical or sustainability concerns might prefer a vegan and/or plant-based butter product over traditional butter. Others may not care about the nutritional differences at all and might buy traditional butter over vegan butter.”
Third, he said, it was also by no means clear that consumers know that butter’s SOI mandates 80% milkfat, as the complaint alleges, or that they believe vegan butter is “basking” in dairy butter’s nutritional halo.
“In making these allegations not only about butter, but real dairy foods as a whole, the plaintiff seems to be arguing well beyond the labeling of Miyoko’s specific product,” claimed Acevedo.
Finally, while FDA commissioner Dr Scott Gottlieb has recently announced a probe into dairy terms in plant-based products, he has also asked for data on whether consumers expect nutritional equivalence from plant- and dairy-based products, suggesting he does not yet have the data to show what consumers think on this topic, noted Acevedo.
“I think that this particular plaintiff will have a significant challenge in mustering the necessary competent and credible evidence to support her claims that has thus far eluded the FDA.”
David Biderman: This case will likely be stayed because of the ongoing FDA inquiry into standards of identity
Perkins Coie partner David Biderman was more blunt: “The case should be dismissed or stayed. First, no consumer is deceived because the word vegan is so prominently displayed above the term butter. Consumers know vegan means no dairy, unless they have been living in a cave.
“Second this case will likely be stayed because of the ongoing FDA inquiry into standards of identity. A similar case (Kelley versus White Wave) challenging almond milk was stayed for this reason, and I would expect a Court to either dismiss or defer to the FDA on this.”
Dance at Tucker Ellis added: "I would expect a court to jump at the chance to stay this action based on the primary jurisdiction or judicial abstention doctrines pending FDA’s decisions regarding the labeling and contents of plant-based products labeled with terms that have standards of dairy-based identity established by FDA regulation, including cheese, yogurt, milk, and butter."
PBFA: This is a frivolous lawsuit
Michele Simon, executive director of the Washington DC based Plant Based Foods Association, of which Miyoko’s Kitchen is a member, claimed that this was “a frivolous lawsuit,” but added:
“I’m sorry to say that while there is no merit to these cases, it does mean that our member companies do have to make sure they are doing what they can to mitigate the risk of FDA action, state level action and consumer lawsuits.”
Entire parts of the planet and the population function very well without consuming dairy products at all
Asked what she made of some of Dr Gottlieb’s recent references to case studies of young children with rickets (caused by vitamin D deficiency) and kwashiorkor (a form of severe protein malnutrition), after being fed non-dairy milks, she added:
“It was disappointing to hear him make anecdotal references to individuals with health issues … Has the FDA stooped to that level of scientific inquiry?”
Asked what she made of the questions the FDA has recently asked stakeholders to answer as part of its probe into labeling conventions, she said: “Of course we’ll try to answer them, but they have so many assumptions built in, including that dairy is an essential part of the human diet, but we know that that’s not backed by science. Entire parts of the planet and the population function very well without consuming dairy products at all."
*The case is Jasmine Brown et al v Miyoko’s Kitchen Inc, filed October 30 in the eastern district of New York. 2:18-cv-06079
Founded by chef, author, and TV personality Miyoko Schinner, Miyoko’s Kitchen got off to an explosive start in 2014 and has been battling to keep up with demand ever since, says Schinner, who started selling her wares online and is now available in thousands of stores including Whole Foods, Natural Grocers, Wegmans, and Raley’s.
Schinner – who moved to a new production facility in Petaluma, CA, last year, has also persuaded a series of high-profile investors to back her cultured nut venture, from Tofurkey founder Seth Tibbott and Wildwood Natural Foods founder Billy Bramblett to Obvious Ventures, the VC firm started by Twitter co-founder Ev Williams.
“The demand and positive response for our vegan cultured nut products has exceeded our wildest expectations,” she told FoodNavigator-USA last year. “There is a core vegan audience that passionately follows us, plus people that are lactose intolerant or have a milk protein allergy. But the wider audience is health-conscious foodies, and people that are looking for something new, or think that the dairy industry isn’t sustainable… and that’s before you even think about the treatment of animals.”