Readers of FoodNavigator-USA may recall that Miyoko’s was hit with a putative consumer class action lawsuit back in 2017 challenging its use of the term ‘butter,’ a case that was later voluntarily dismissed.
This time, the company is initiating legal action, filing a lawsuit against officials in the California Department of Food and Agriculture after receiving a letter demanding it ditch the word ‘butter’ (a term ag officials say is restricted to products containing 80%+ milkfat, as paer the federal standard of identity for dairy butter, regardless of disclaimers such as 'vegan' and 'made from plants').
Miyoko's was also told by the Dept's Milk and Dairy Foods Safety Branch to drop the terms ‘lactose-free,’ hormone-free’ and ‘cruelty-free,’ because “the product is not a dairy product," and remove photos of a woman hugging a cow from its website because “dairy images or associating the product with such activities cannot be used on the advertising of products which resemble milk products."
Finally, the phrase ‘revolutionizing dairy with plants,’ also had to go because Miyoko's products are “not of dairy origin,” argued the Department.
'Complying with the State of California’s censorship and multiple directives would hobble Miyoko’s'
In a lawsuit urging the court to block the state from enforcing these demands on First Amendment grounds, Miyoko’s Kitchen Inc argues they “unreasonably restrict Miyoko’s right to free speech by prohibiting the company from making truthful statements about the identity, quality, and characteristics of vegan and plant-based products.”
It explains: “Complying with the State of California’s censorship and multiple directives would hobble Miyoko’s. It would simultaneously cost the company more than $1m to change its labels and marketing, restrict the company from proclaiming its own mission to the public, and prevent it from accurately communicating to consumers the nature and contents of its products—what the products taste like, what they’re made from, what they do and don’t contain, and how to use them.
“In fact, the changes that the letter demands will more likely create consumer confusion—an average consumer would have no idea when to use ‘vegan spread’ or ‘cultivated cashew cream’—and thus would be unlikely to buy those products if they needed something vegan to put on toast with jam, or something to put on a pizza in place of cheese from a cow.”
In censoring Miyoko’s mission, its animal-friendly imagery, and its accurate descriptions of its plant-based products, the State of California has bowed to pressure from industry lobbyists and taken sides in a heated national debate between proponents of plant-based and animal-based foods.
'It is prohibited by the First Amendment from taking sides in a contentious national debate on the role of plant-based foods'
In reality, says Miyoko's, it’s hard to argue that consumers are confused by plant-based products bearing terms such as ‘cheese’ or ‘butter,’ because they are always preceded or accompanied by additional wording (“vegan butter”… “made from plants”) that make it abundantly clear that they are not made from cow’s milk. Moreover, it says, fans of Miyoko’s are paying a premium for its products precisely because they are not made from cow’s milk.
It adds: “The Milk and Dairy Food Safety Branch may be tasked with supporting the State’s agricultural industries, but it is prohibited by the First Amendment from taking sides in a contentious national debate on the role of plant-based foods and leveraging its power to censor one emerging industry’s speech in order to protect a more powerful and entrenched industry.”
Owing to the state’s actions, Miyoko’s must now risk prosecution; develop custom packaging for California, “creating a logistical nightmare;” or change the entirety of its marketing and packaging nationwide.
Courts have not yet ruled on a plant-based ‘butter’ case. However, consumer class actions challenging terms such as ‘almondmilk’ and ‘soymilk’ have not made much headway, with judges arguing that the federal standard of identity for ‘milk’ - which limits it to lacteal secretions from cows - does not categorically preclude a company from using names that include the word ‘milk’ (eg. 'soymilk') as long as they use qualifiers such as ‘plant-based’ or ‘dairy-free.’
Meanwhile, a federal district court in Arkansas recently determined that a challenge to a state law restricting ‘meaty’ terms on plant-based products was likely to prevail on the merits of its First Amendment claim.
Here, US District Judge Kristine G. Baker noted that, “The State appears to believe that the simple use of the word ‘burger,’ ‘ham,’ or ‘sausage’ leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label…..That assumption is unwarranted.”
Attorney: 'Miyoko's has a good free speech case'
So what do legal experts make of the case?
William Dance, senior counsel at law firm Sklar Kirsh told FoodNavigator-USA that Miyoko's has "a good free speech case in the current environment.
"This case is in the odd posture of the State of California enforcing a federal regulatory regime that seems to protect the large national manufacturers and hurt Miyoko’s Kitchen, a California-based, relatively small startup. It will be interesting to see how a Northern District of California’s 'Food Court' judge handles a case where food labels are the subject of free speech debate as opposed to plaintiff attorney-driven litigation.
"It certainly seems inconsistent for 'vegan butter' to be an improper label for a non-dairy butter-like product when 'Beyond Meat' is an acceptable brand name for a non-meat but meatlike product and 'almondmilk' is acceptable for a non-dairy milk-like product."
I predict that Miyoko’s Kitchen will eventually prevail
He added: "What makes 'vegan butter' a special case is the extensive FDA regulations for content and labeling of dairy butter, margarine, and spreads, where the marketers of margarines and spreads have tried literally for generations to make those products look and taste as close to dairy butter as possible. With dairy butter, margarines, and spreads, consumer confusion seems likely without the regulated label distinctions, which forbid the use of the term 'butter' for vegetable oil spreads. They cannot currently be labeled as 'vegetable oil butter.'
"I predict that Miyoko’s Kitchen will eventually prevail and that as a result, the FDA will also eventually have to allow what we now know as margarines and vegetable oil 'spreads' to be called 'vegetable oil butter'."
Elizabeth Derbes, assistant director of regulatory affairs at The Good Food Institute, added: "Food producers have a right under the First Amendment to describe their products in a clear manner, using language the way ordinary people use it. Consumers understand that 'vegan butter' is not made from cows' milk.
"The words clearly convey the key attributes of the product: functionality (taste and consistency: you can spread it on toast) and the fact that it doesn't come from animals. Courts have consistently rejected the idea that terms like these are confusing to consumers."
The California Department of Food and Agriculture said it was unable to comment on the case.
"California is known as the land of innovation. Companies such as Miyoko's are growing, innovating, creating new jobs... so for this agency to hamper companies that are on the cutting edge when it comes to providing consumers with great tasting and more sustainable options, makes no sense.
"We worked with regulators in Mississippi to come up with reasonable language to describe plant-based meat products [a law in Mississippi was recently revised to permit 'meaty' terms on plant-based products provided brands use appropriate qualifiers such as ‘meat-free,’ ‘meatless,’ ‘plant-based,’ ‘vegetarian,’ or ‘vegan’ ].
"How is it that the State of California can't recognize the use of qualifiers?"
Michele Simon, executive director, Plant Based Foods Association
*The Case is Miyoko’s Kitchen Inc vs Karen Ross (Secretary of the California Department of Food and Agriculture) and Stephen Beam (Branch Chief of the Milk and Dairy Food Safety Branch of the California Department of Food and Agriculture). Case # 3:20-cv-00893 filed 02/06/20 in In the US District Court for the Northern District Of California.