The legal wrangling began after Miyoko's was told by the Department of Food & Agriculture late last year to drop the terms ‘butter,’ ‘lactose-free,’ hormone-free’ and ‘cruelty-free,’ because “the product [made from coconut oil, sunflower oil and cashew nuts] is not a dairy product."
It was also told to remove photos of a woman hugging a cow from marketing materials because “dairy images or associating the product with such activities cannot be used on the advertising of products which resemble milk products."
As a result, Miyoko’s must develop custom packaging for California (“creating a logistical nightmare”) or change marketing and packaging materials nationwide at a cost of $2m+, or risk prosecution, claimed the company, which filed a lawsuit* in February 2020 alleging its First Amendment rights had been violated.
‘The State’s enforcement stance has chilled Miyoko’s speech’
This in turn prompted the attorney general of California to fire back, arguing that Miyoko’s filing was “premature,” adding: “Had Miyoko’s permitted the agency process to continue, the parties may have reached a negotiated solution.”
In reality, claimed Miyoko’s in court documents filed late last month, the State had already acknowledged that its next steps would be to “impound the product.”
“The State’s enforcement stance has chilled Miyoko’s speech, and the company now operates under a cloud of fear that the State will take further action against it.”
Dairy standards of identity
So where does the law stand on 'plant-based 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.
However, this case is not necessarily a slam dunk for the State of California just because Miyoko’s products don’t contain 80% milkfat.
Courts have not yet ruled on a challenge to ‘plant-based butter,’** and consumer class actions taking issue with terms such as ‘almond milk’ and ‘soy milk’ 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 preclude a company from using terms that feature the word ‘milk’ (eg. 'soy milk') as long as they use qualifiers such as ‘plant-based’ or ‘dairy-free’ and consumers are not confused.
In this case, Miyoko’s packaging and marketing (“vegan butter”… “made from plants”) make it abundantly clear that its products are not made from cow’s milk, said the firm, noting that its fans are paying a premium for its products precisely because they are not made from cow’s milk.
"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
Plant-based butter… margarine by any other name?
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 says the State of California is 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 also argue that the inclusion of premium ingredients such as coconuts, cashews, almondmilk and tigernuts in these next-gen products differentiates them from traditional margarine brands that use cheaper vegetable oils such as soy, palm, and canola.
Miyoko’s: The State is ‘taking sides’ to protect one industry vs another
As it is hard to see how going after plant-based brands “directly advances a substantial governmental interest,” given there's no evidence consumers are confused, claimed Miyoko's, it looks like "the State of California has bowed to pressure from dairy industry lobbyists."
It added: “It’s one thing for the government to promote an important domestic industry [ie. dairy]. But it’s another when a government agency uses its authority to denigrate another less powerful, upstart industry—and for that same agency to restrict the speech of the less powerful industry to protect the more powerful one.
“The First Amendment prevents the government from restricting speech in a manner that takes sides on an important public debate.”
William Dance, senior counsel at law firm Sklar Kirsh told FoodNavigator-USA earlier this year that he expected Miyoko’s would “eventually prevail,” while the California Department of Food and Agriculture said it was unable to 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). Case # 3:20-cv-00893 filed 02/06/20 in In the US District Court for the Northern District Of California.
**Miyoko’s was hit with a putative consumer class action lawsuit in 2017 challenging its use of the term ‘butter,’ a case that was later voluntarily dismissed.
