The legal dispute began in late 2019 after Miyoko's was told by the California Dept of Food & Agriculture to drop the terms 'butter,' ‘lactose-free,’ hormone-free’ and ‘cruelty-free,’ from its plant-based 'butter' (which is made from coconut oil, sunflower oil and cashew nuts) because "it is not a dairy product."
Miyoko’s - which said it was given no choice but to develop custom packaging for California (“creating a logistical nightmare”), changed its marketing and packaging materials nationwide at huge expense, or risk prosecution - filed a lawsuit in February 2020 in a bid to prevent the State from enforcing its demands, which it claimed violated its First Amendment rights.
Judge: ‘Quite simply, language evolves…’
In an order filed in the Northern District of California on Tuesday (Aug 10), US district judge Richard Seeborg granted Miyoko’s motion for a summary judgement to prevent the state from enforcing its claims in regards to the terms ‘butter,’ ‘lactose-free,’ ‘cruelty-free,’ and ‘revolutionizing dairy with plants,’ but denied it for the term ‘hormone-free.’
As for the core claims around vegan 'butter,' Judge Seeborg said that the State of California was basically arguing that federal ‘butter’ labeling standards (which stipulate 80% milkfat) deserve “a sort of constitutional credit for old age: because the statute has been on the books for ninety-odd years, it must be especially reflective of what consumers understand ‘butter’ to mean.
“This logic, which finds no footing in the State’s cited authorities, defies common sense. Quite simply, language evolves. Absent anything from the State revealing why old federal food definitions are more faithful indicators of present-day linguistic norms, neither the fact nor the vintage of the federal definition of ‘butter’ counts against Miyoko’s at Central Hudson’s first step.”
'The First Amendment demands proof that restricting Miyoko’s commercial speech will promote the State’s asserted interest'
In other words, while the standard of identity for butter stipulates that butter must contain at least 80% milkfat (and Miyoko's product clearly does not), argued Seeborg, the question at issue in this case is whether Miyoko’s use of the word ‘butter’ in close proximity to terms such as ‘vegan,’ ‘made from plants,’ and ‘cashew & coconut oil spread,’ amounts to misleading commercial speech.
Ultimately, he said, “Concern over the ‘abolition of standards of identity for foods’ notwithstanding, the First Amendment demands proof that restricting Miyoko’s commercial speech will promote the State’s asserted interest.”
And in this case, the State’s sole asserted interest is avoiding consumer confusion, he pointed out.
“Because the record lacks material reasonably supporting the conclusion that removing ‘butter’ from Miyoko’s labeling will in fact advance that interest to a material degree, the State may not enforce any order to that effect.”
Miyoko Schinner: ‘Food is ever-evolving, and so too, should language to reflect how people actually use speech to describe the foods they eat’
Founder and CEO Miyoko Schinner said she hoped this case would set a precedent: “Using words such as ‘butter’ and ‘milk’ in the context of products made from plants and not from animals is common parlance among consumers in the modern world.
“Food is ever-evolving, and so too, should language to reflect how people actually use speech to describe the foods they eat. We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food.”
ALDF: ‘The fact that animal-milk producers fear plant-based competition does not give state agencies the authority to restrict one industry in order to help another’
Stephen Wells, executive director at the Animal Legal Defense Fund (ALDF), which is backing Miyoko's in the case, said using qualifiers to provide context for regulated terms, such as milk and butter, is an approved practice by the FDA and included in guidance materials published by the agency.
“The California Department of Food and Agriculture’s attempt to censor Miyoko’s from accurately describing its products and providing context for their use is a blatant example of agency capture. The fact that animal-milk producers fear plant-based competition does not give state agencies the authority to restrict one industry in order to help another.”
Attorney: Standards of identity apply to dairy products
Amanda Howell, senior staff attorney at the ALDF, told FoodNavigator-USA: “It's always been our position that standards of identity for things like butter or cheese don't really apply to plant based, dairy alternatives. No vegan company or plant based company is presenting a product as just ‘butter’ or ‘milk,’ so they’re not running afoul of standards of identity for these terms - some of which were set back in the 1940s [to tackle adulteration], and that's why Judge Seeborg is saying language evolves and consumer understanding evolves.
“Every consumer study also bears this out, consumers are not confused, they're purchasing it [plant-based butter] on purpose because they're trying to avoid animal based dairy products.”
She added: “Protectionist actions or laws [at a state level attempting to restrict animal-based terms on plant-based products] are blatantly unconstitutional, and as we see are being one by one, stricken.
"In fact if you remove words like 'butter' or 'milk' or 'sausage' from plant based products, it actually increases consumer confusion."
PBFA: Ruling is a 'win for the entire plant-based food industry'
The Plant Based Foods Association said the ruling was a "win for the entire plant-based food industry. The rights of plant-based for companies to label their foods accurately and clearly with commonly understood descriptive terms such as “milk” and “butter,” alongside industry qualifiers such as “plant-based” or “vegan,” is one of the founding principles of PBFA.
"The U.S. District Court decision upholding the First Amendment rights of the plant-based food industry is further evidence that the efforts by the animal meat, dairy, and seafood industries to restrict plant-based labeling rights are not only baseless, but a waste of government resources."
GFI: 'Efforts to pressure FDA to 'crack down' on the use of dairy terms in plant-based product labeling are ill-conceived and contrary to basic constitutional law'
Laura Braden, lead regulatory counsel at The Good Food Institute, added: "As the court noted, the mere existence of a government definition of a particular food term does not remove speech involving that term from First Amendment protection. This reinforces the fact that efforts we’re currently seeing to pressure FDA to "crack down" on the use of dairy terms in plant-based product labeling are ill-conceived and contrary to basic constitutional law."
The California Department of Food and Agriculture did not immediately respond to requests for comment on the case.
*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). 3:20-cv-00893 filed 02/06/20 in In the US District Court for the Northern District Of California.
More to follow...
Where do the FDA and the courts stand on plant-based 'milk' and 'butter'?
FDA standards of identity define the unqualified term ‘milk’ as the 'lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.'
According to plant-based brands, who typically use a modifier (eg. almond-milk) and additional qualifiers (eg. dairy-free, plant-based, non-dairy) to make it clear they are not selling dairy milk, such standards of identity were designed to address fraud and economic adulteration, not to prevent plant-based alternatives from referring to standardized terms (eg. milk) in their marketing altogether.
Courts handling false advertising cases over plant ‘milks’ have tended to agree, arguing that the federal standard of identity for milk does not categorically preclude a company from giving food products names that include the word ‘milk.’
For example, in a case vs Trader Joe’s, judge Vince Chhabria noted that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question: “Trader Joe's has not, by calling its products ‘soymilk,’ attempted to pass off those products as the food that the FDA has standardized (that is, milk).”
As for nutritional equivalency, Stephen Wilson, the judge handling a false advertising case vs Blue Diamond Growers (Almond Breeze) in California, did not buy the argument that the word ‘milk’ came with a certain set of nutritional expectations, adding: “If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label..."
FDA draft guidance on plant-based milk labeling to be released by June 2022
In a recent constituent update the FDA said it plans to issue draft guidance on ‘labeling of plant-based milk alternatives’ by the end of June 2022.
While terms such as 'soymilk' and 'oatmilk' are prohibited in the EU (where Oatly is an Oat Drink), they are widely used in the US (where Oatly is Oat Milk). And the FDA - say critics - has fluctuated unhelpfully on the issue of whether such terms mislead shoppers or violate federal standards of identity, which limit the term 'milk' to the "lacteal secretions" of cows.
For example, the FDA queried the term ‘soy milk’ in warning letters to a couple of manufacturers in 2008 and 2012, but thereafter maintained radio silence on the topic until Dr Gottlieb re-ignited the debate in mid-2018, telling delegates at the Politico Pro summit in Washington that, “We have a standard of identity for milk and I intend to enforce that… an almond doesn’t lactate.”
Gottlieb also noted, however, that there could be First Amendment issues to address, and that the FDA could face legal challenges by suddenly banning terms such as ‘almondmilk,’ having tacitly endorsed such terminology on food labels for years.
“The question becomes, have we been enforcing our own standard of identity? The answer is probably not… I’d need to at the very least issue a guidance document suggesting we’re going to enforce our existing standard of identity differently. That’s what we intend to do.”
A request for information issued in Setember 2018 to solicit feedback on the issue generated a dizzying number of comments (13,000 according to the FDA), with milk producers arguing that the word ‘milk,’ even with the term ‘almond’ before it, falsely implies nutritional equivalence to dairy, and The Good Food Institute and the Plant Based Foods Association arguing that there is no evidence that consumers are confused or that they assume oatmilk or almondmilk should precisely match the nutrition of dairy milk.
What is butter?
According to FDA standards of identity, butter must contain 80% milkfat, while margarine must contain 80% fat but it doesn’t have to come from milkfat. Vegetable oil ‘spreads,’ meanwhile, typically contain up to 40% water.
While some commentators say brands such as Miyoko’s, Califia Farms and Kite Hill are using the term plant-based ‘butter’ in order to present what is basically margarine as something new and exciting, Miyoko’s argued that the State of California was violating its rights to free speech by “prohibiting the company from making truthful statements about the identity, quality, and characteristics of vegan and plant-based products.”
The brands pictured above have also argued that the inclusion of premium ingredients such as coconuts, cashews, almondmilk and tiger nuts in these next-gen products differentiates them from traditional margarine brands that use cheaper vegetable oils such as soy, palm, and canola.
In his ruling this week, Judge Richard Seeborg acknowledged that the standard of identify for butter may stipulate 80% milkfat, but said the question at issue in this case is whether Miyoko’s use of the word ‘butter’ in close proximity to terms such as ‘vegan,’ ‘made from plants,’ and ‘cashew & coconut oil spread,’ amounts to misleading commercial speech. And the State, he argued, had not made that case.