Will grill vegan cheese sandwiches as well as California Department of Food & Agriculture officials
PETALUMA, California––Taking the case for plant-based cheese products straight to the people, as well as to U.S. District Court for the Northern District of California, Miyoko’s Creamery on March 4, 2020 intends to begin distributing 15,000 free vegan cheddar and pepperjack grilled cheese sandwiches on a 17-city food truck tour of the United States.
Founded in Fairfax, California in 2014, relocating to nearby Petaluma in 2017, Miyoko’s Creamery has been known so far for making gourmet vegan cheeses from almonds, cashews, and other nuts, and for giving producers of high-end conventional dairy cheeses fits as the first vegan cheese maker to grab significant market share in side-by-side competition in grocery stores.
Fighting dairy cheese producers took nuts
Because nuts are an expensive ingredient, however, Miyoko’s Creamery has barely begun to rattle the stanchions of mainstream dairy cheese producers whose output goes into pizzas, macaroni-and-cheese, and other cheese staples of the middle American diet.
In addition, the Miyoko’s Creamery vegan cheeses have been off limits for people with nut allergies.
Now Miyoko’s Creamery aims to change all that with a new line of vegan cheddar and pepper-jack cheeses, made from oats, potatoes, and legumes, and cultured vegan oat-based butter.
Scheduled to begin at the Natural Products Expo West in Anaheim, California, the Miyoko’s Creamery promotional tour appears to be modeled after the Oscar Meyer Wienermobile tours that have pushed hot dogs since 1936.
But the six Oscar Meyer Wienermobiles now on the road have in recent years struggled to boost a downsizing industry.
California dairy industry sees 46% of market at risk
Miyoko’s Creamery has struggled to find enough nuts to make all the vegan cheese it can sell. Adding a cheese line made from oats, potatoes, and legumes, all much more easily sourced in quantity, promises to resolve that problem, as well as the price and nut allergy problems.
That appears to have the entire dairy cheese industry running scared, including the Department of Food & Agriculture in California, the leading U.S. dairy state since 1993, and a state in which dairy is the leading sector in agribusiness.
About 20% of the entire U.S. dairy herd is in California, according to the California Milk Advisory Board, a promotional arm of the California Department of Food & Agriculture––and about 46% of the milk produced in California is used in making dairy cheese.
“Cashew cream fermented from live cultures”
On December 9, 2019, California Department of Food & Agriculture senior environmental scientist LaVone Dyer wrote to Miyoko’s Creamery that the department believes Miyoko’s is mislabeling cashew butter by calling it “butter,” since it does not meet a federal definition of “butter” as a product made exclusively from milk or cream, which must contain at least 80% milk fat.
Dyer instructed Myoko’s Creamery to remove the word “butter” from the labeling; to advertise the cashew butter exclusively as “cashew cream fermented from live cultures,” instead of “cultured vegan butter”; to erase all dairy-related imagery from the company web site, including a photo of founder Myoko Schinner herself hugging a cow; and to refrain from using phrases such as “cruelty free,” “hormone free,” and “lactose free,” since according to Dyer they imply that the products come from animals.
“Meat” didn’t mean “flesh” to Shakespeare
For several years now, animal agribusiness has sought to suppress competition from makers of plant-based alternatives by winning legislation that restricts the use of familiar food descriptions used for animal products and byproducts to only animal products and byproducts––irrespective of the historical reality that most such terms have also been used for centuries to describe plant-based products.
Even the term “meat,” for instance, originally meant any food eaten by either humans or animals, in all of the Germanic languages including English, and only came to mean flesh products within the past 1,000 years. As recently as the playwright William Shakespeare’s time (1564-1616), “meat” and “flesh” were not synonymous.
Laws attempting to pre-empt the use of food terms by vegan manufacturers are now in effect in the European Union, with more stringent definitions in France, and in the U.S. states of Arkansas, Alabama, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming.
Judge rules that animal agribusiness arguments are nonsense
None of those laws, however, have so far been successfully enforced.
The first of them, adopted in Missouri in early 2018, has been challenged in court by a coalition including the Good Food Institute, the Animal Legal Defense Fund, the American Civil Liberties Union of Missouri, and Tofurky, a leading maker of plant-based alternatives to meat products. No verdict has yet been rendered.
Enforcement of similar but even more broadly sweeping law passed a year later in Arkansas, Act 501, was indefinitely delayed in December 2019 by U.S. District Judge Kristine G. Baker of the Eastern District of Arkansas.
Ruling on a petition for an injunction against enforcement brought by the same coalition fighting the Missouri law, Baker ruled that Tofurky et al are “likely to prevail on [Tofurky’s] arguments that its labeling is neither unlawful nor inherently misleading and that [its] commercial speech warrants First Amendment protection.”
Judge Baker found that Tofurky product labeling prominently includes so many terms such as “plant-based,” “vegetarian,” and “veggie” that no consumer of ordinary intelligence is likely to mistake the products for products of animal origin.
Wrote Baker, “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.
“Further,” Baker continued, “as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.”
Miyoko’s takes the offensive
Miyoko’s Creamery on February 6, 2020 comparably took the offensive against the California Department of Food & Agriculture edict.
A lawsuit filed by Miyoko’s Creamery against the department on February 6th in the U.S. District Court for the Northern District of California alleges that Dyer’s instructions to the company “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.
“In censoring Miyoko’s mission, its animal-friendly imagery, and its accurate descriptions of its plant-based products,” Miyoko’s Creamery contends, “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.”
Represented by the Animal Legal Defense Fund, Miyoko’s Creamer seeks a preliminary injunction against enforcement similar to the one issued in Arkansas on behalf of Tofurky, plus a judicial declaration that the restrictions issued by Dyer violate Miyoko Schinner’s personal First Amendment right to free speech.
“Vegan butter” vs. “peanut butter”
Noted Bay Area News Group reporter Ethan Baron, “The California Department of Food & Agriculture refused to comment on the lawsuit, or explain why ‘vegan butter’ should be treated differently than peanut butter.”
“I don’t think there’s a single confused consumer out there,” Schinner told John Ramos of Petaluma, California television station KPIX-5. “No more than a consumer is confused who orders almond milk. They know it’s not dairy milk. In fact, they’re ordering almond milk because they don’t want dairy milk!”
The Miyoko’s Creamery case has been assigned to U.S. District Judge Richard Seeborg of San Francisco. Seeborg is best known among animal advocates for enforcing the loan agreement that in June 2019 returned the gorilla Ndume to the Cincinnati Zoo, after 28 years in solitary confinement at The Gorilla Foundation in Woodside, California.
Winning streak vs. “ag gag” laws
The Animal Legal Defense Fund, meanwhile, is on a winning streak in cases pertaining to vegan advocacy, freedom of speech, and animal use industries.
Responding to a petition from the Animal Legal Defense Fund, Public Justice, the Center for Food Safety, and the Kansas-area farmed animal advocacy organizations Shy 38, Inc. and Hope Sanctuary, the U.S. District Court of Kansas in January 2020 barred the state of Kansas from enforcing most of a 30-year-old “ag gag” law, the oldest in the U.S., which sought to prohibit undercover investigations of farms and slaughterhouses.
The U.S. District Court left standing only portions of the law, passed in 1990, that criminalize doing physical harm to animals and facilities, and enable the owners to pursue civil lawsuits in response to alleged violations.
Iowa “ag gag” fell too
Earlier, on December 3, 2019, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction against enforcement of a revised “ag-gag law” that closely resembles a similar law that was previously found unconstitutional.
Both Iowa laws would prohibit gaining access to an agricultural production facility through use of deception, if the person intends to cause “injury” to the “business interest” of the facility. This language could obstruct even exposure of serious criminal activity.
The Iowa lawsuit was brought by a coalition including the Animal Legal Defense Fund, the American Civil Liberties Union of Iowa, People for the Ethical Treatment of Animals (PETA), Public Justice, the Center for Food Safety, Iowa Citizens for Community Improvement, and Bailing Out Benji, a Texas-based organization that campaigns against “puppy mills.”