The primary change protects the advertising time period "vegan butter" – Miyokos v. Horse
I've been a vegetarian for over 35 years. I have become vegan in the past 15+ years. I eat practically 100% vegan at home and always prefer vegan options when they are available. My embrace of veganism coincided in part with the spread of vegan restaurants and grocery stores. We live in a golden era of mass market vegan / "plant-based" products with a wonderful variety and quality of options that put Loma Linda's 1980s vegetarian hot dogs to shame that are water-wrapped. So, personally, I am upset and angry when our government uses our taxpayers money to try to thwart market demand for vegan products that make my life better. See my comments to the FDA on the matter.
Today's case is another entry in the “Oleo War” that began in the 19th century. For decades, milk producers have armed the law to suppress alternatives based on margarine / vegetable oil. Wisconsin, the Dairy State, is particularly known for anti-margarine regulations – when I lived there, restaurants could put butter on the table, but customers have to order margarine (I believe the law is still in place). For the past 150 years, virtually every regulatory move in the Oleo War has reflected the dairy industry's retirement search, not consumer protection. Given this history, we should at this point immediately question the motives for government action against alternatives to non-dairy butter.
Miyoko's kitchen sells a product called "European Style Cultured Vegan Butter". Check the packaging:
Are there any doubts that this is not milk butter? The packaging shows the following:
- It's called VEGAN butter
- it's called "100% made from plants"
- it's called "Cashew & Coconut Oil Spread"
- It will display the V symbol in the upper left
- There are several other references, such as the photos of nuts (and implicitly no photos of cows) and the kosher "parve" symbol (meaning it is neither meat nor dairy, so observant Jews can eat it at any meal).
Any of these would probably be enough to educate consumers, but overall, the non-dairy status of this product cannot be overlooked. Still, the California Department of Food and Agriculture demanded that Miyoko no longer refer to its product as vegan "butter", as the current law defines butter as a product that is "made entirely from milk or cream, or both. . . and contain at least 80 weight percent milk fat. “For the sake of the first change, Miyoko filed for an injunction against the department's enforcement. The judge issues an injunction.
The court names three reasons why the marketing term "vegan butter" is a constitutionally protected speech:
1) Other dishes have found herbal product names not to be misleading, including:
- "It is simply implausible that a reasonable consumer should confuse a product such as soy milk or almond milk with milk from a cow" and that "even the least discerning consumer () will not believe that soy milk is from a cow". Ang v. Whitewave (2013)
- Soy milk does not mislead consumers into believing that it is nutritionally equivalent to milk. Gitson vs. Trader Joe (2015)
- Painter v Blue Diamond Growers, 757 F. App’x 517, 519 (9th Cir. 2018) (confirmation of Gitson's reasoning).
- "Meat" can be used if the label clearly states the vegetable source. Turtle Island vs. Foman (2019)
The vegan product "Just Mayo" from Hampton Creek came to a different conclusion, but never clearly indicated its vegetable origin and showed an egg on its packaging.
The state argued that "butter" is linguistically different from "milk" or "meat" as neither has a well-established vegan analog in the same role as margarine. The court says that plant milk refutes this argument.
2) Evidence of consumer confusion over herbal alternatives is "empirically inconclusive". The state has not introduced any empirical studies. Miyoko did it and it showed:
The public identifies the source of animal dairy products 84% of the time, 88% of vegetable dairy products, 81% of animal cheese products, and vegetable cheese products precisely 74% of the time. "
The state said this study shows that 26% of consumers misunderstand the source of plant-based cheese. The court rightly notes that 19% misunderstand the source of "animal" cheese, leaving the net confusion to 7%. The study therefore supports the conclusion that "Consumers may be able to identify traditional cheeses a little better than vegan and perhaps better identify (roughly equivalent) vegan milk than traditional milk." (I have a slight objection to the term "traditional" because this is reflects a cultural bias, but I understand the court's position.) In addition, “the state (did not) provide testimony from a buyer who was tricked or otherwise manufactured by Miyoko's vegan butter on the reason Miyoko's substitute was spreading the common good uniquely threatened. "
3) "The justification of state language regulation using the government-issued dictionary is troubling that it is self-fulfilling."
For these reasons, the court is asking the state to enforce its restrictions on Miyoko's use of the term "butter".
While I disapprove of the state using my tax dollars to openly promote the commercial interests of the dairy industry, I am particularly angry that the state is spending its time, money, and attention on a non-issue like "vegan butter" instead of tracking half – dozens of existential threats threatening our society NOW. I am confused by our government's priorities.
Case Quote: Miyoko's Kitchen v Ross, 3: 20-cv-00893-RS (N.D. Cal. August 21, 2020)