California court finds “no consumer confusion” in labeling of Miyoko’s dairy alternatives

25 Aug 2020 --- Miyoko’s Creamery, a US producer of cashew-based dairy alternatives, has benefited from a positive court decision favoring its position against the State of California’s attempts to prevent the company from using the terms “butter,” “lactose-free” and “cruelty-free” on its plant-based foods. The Plant Based Foods Association (PBFA) has since applauded the court action to grant a “preliminary injunction” against enforcement while the litigation plays out.

In his ruling, Judge Seeborg explains: “The state’s showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming”.

Moreover, he found that the state did not “present testimony from a shopper tricked by Miyoko’s vegan butter, or otherwise make the case for why Miyoko’s substitute spread is uniquely threatening to the public weal.”

Thus, the court concluded: “In this early phase of the litigation, it therefore appears Miyoko’s decision to label its product as ‘butter’ is entitled to First Amendment protection.”

PBFA underscores, “There is simply no evidence of consumer confusion and therefore no legal justification for government action.”

“This victory is the latest in a growing trend of common-sense labeling decisions made in courts across the US,” says PBFA’s Executive Director Michele Simon. “We commend the judge’s decision to protect the basic First Amendment right to use accurate and truthful labeling.”

Miyoko Schinner is the vegan celebrity chef behind Miyoko’s Creamery. Schinner founded Miyoko's Kitchen in 2014, which was rebranded later on as Miyoko’s Creamery. The start-up earned US$1 million in seed funding, with an initial investment from Seth Tibbott, Founder of Tofurkey. In 2017, it obtained US$6 million in funding, for a total of US$12 million.

Case background
The case began in December of 2019, when California, through its Department of Agriculture’s Milk and Dairy Food Safety Branch, threatened Miyoko’s with a letter informing the company that the label for its “vegan butter” product failed to comply with state and federal law.

In June, Miyoko’s had its first victory in the case when the court ruled in its favor, rejecting the State of California’s Motion to Dismiss in a First Amendment challenge.In response, Miyoko’s filed a lawsuit stating that the Department’s order violates the First Amendment and that the advertising and packaging for the product is neither misleading nor deceptive, as its references to “butter” are qualified by words such as “plant-based” and “vegan.” In June, Miyoko’s had its first victory in the case when the court ruled in its favor, rejecting the State of California’s Motion to Dismiss in a First Amendment challenge.

PBFA has been a supporter of Miyoko’s case, submitting a declaration by its Executive Director, Simon. The document explained that California’s Milk and Dairy Food Safety Branch’s attacks on PBFA members have forced them to choose between truthfully conveying what their foods are and facing severe enforcement action by the State of California.

The Court cited this declaration in its June decision, noting that California “should have been aware, its interpretations of state and federal law threaten the viability of not just the ‘vegan butter’ product, but of Miyoko’s entire business model.” 

Ongoing label debate
Since meatless products are booming and continually expanding their retail shelf space, the plant-based sector has hit back at moves from livestock proponents and policymakers who aim to prohibit the use of “meaty” terminology on alternative offerings, which are predominantly plant-based analogs. They flag this as a significant cause for confusion among consumers.

France has recently adopted a law mandating that names used to indicate foodstuffs of animal origin shall not be used to describe, market or promote foodstuffs containing vegetable proteins. Plant-based food businesses, led by the umbrella organization European Vegetarian Union (EVU), have argued that parts of this law do “the exact opposite” of mitigating confusion – causing “complications and opacity” for food products. 

In July 2019, ten animal protection, consumer, environment and food NGOs united in an open letter to urge members of the European Parliament to drop proposals to outlaw phrases such as “vegan sausage roll” and “veggie burger” across the EU. Petitions against this proposal gathered around 80,000 signatures.

The US Food and Drug Administration (FDA) previously voiced a concern regarding the health consequences of the label debate. Through a survey of consumers, the administration aimed to determine if plant-based products using the types of terms conventionally associated with animal-based products, could contribute to underconsumption of key nutrients, such as calcium and vitamin D.

Edited by Benjamin Ferrer