Dairy industry can kiss Miyoko’s vegan butter, says judge
SAN FRANCISCO, California––Jiminy Cricket! The world doesn’t owe the dairy industry a living, and Miyoko’s Creamery, of Petaluma, California, does not need to change its advertising and product labeling just because the dairy industry would rather play the bull fiddle in court and before legislatures than face serious marketplace competition.
So U.S. District Judge Richard Seeborg ruled on August 11, 2021, in the latest of a multi-year series of losses for dairy and meat industry attempts to legally prohibit the use of terms such as “butter,” “milk,” and “burger” to describe plant-based vegan food products.
Vegan food entrepreneur Miyoko Schinner “sued the California Department of Food & Agriculture after the department ruled the company’s plant-based butter couldn’t include the terms ‘butter,’ ‘lactose-free,’ and ‘cruelty-free’ on its label,” summarized “Farmer’s Daughter” columnist Amanda Zaluckyj for AgDaily, which describes itself as “the premier digital destination for agriculture news, trends, and rural lifestyle.”
“Vegan butter” isn’t a dairy product
California Department of Food & Agriculture senior environmental scientist LaVone Dyer “also said the terms ‘hormone-free’ and ‘revolutionizing dairy with plants’ were misleading,” Zaluckyi continued. “The department found that ‘vegan butter’ wasn’t a dairy product,” and that Miyoko’s use of the terms in question “created confusion for consumers.”
Of note, the California Department of Food & Agriculture has never issued a similar ruling against makers of peanut butter and apple butter.
Explained Zaluckyi for an audience consisting mostly of people in conventional agribusiness, including the dairy industry, “Judge Seeborg came back with a mixed ruling. He decided ‘hormone-free,’ as Miyoko’s Creamery has used it, “is false because all living things, including plants, have hormones. And the company’s faux butter isn’t revolutionizing the dairy industry; it isn’t a dairy product. But he held that the use of “lactose-free” and “cruelty-free” were perfectly fine, because both were true (however you define the latter).
“And what about “butter?” He found California was trampling on Miyoko’s 1st Amendment rights to use the word.”
“The ruling isn’t out of line”
Warned Zalucki to conventional dairy product producers who are already demanding an appeal and further legislation to try to squelch vegan competition, “The ruling isn’t out of line. Almost a decade ago, other courts ruled in favor of dairy alternatives using traditional dairy words, like milk. More recently, companies have challenged state laws prohibiting the use of ‘meat’ on plant-based alternatives. The results of those lawsuits were mixed.
“But what’s clear is that no court reviewing the name game has handed a decisive victory in favor of traditional industries.”
Brownfield Ag News, however, feeding agricultural news briefs to more than 500 rural radio stations, reported that National Milk Producers Federation senior vice president of regulatory and environmental affairs and staff counsel Clay Detlefson is “considering new litigation against” the U.S. Food & Drug Administration for allegedly failing to enforce the official U.S. federal definition of milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows, which may be clarified and may be adjusted by separating part of the fat therefrom; concentrated milk, reconstituted milk, and dry whole milk.”
But the original purpose of that definition was to identify and establish pasteurization standards, not consumer marketplace labeling norms.
What’s a “brownfield”?
And “brownfield,” incidentally, is defined by Oxford Languages as “a former industrial or commercial site where future use is affected by real or perceived environmental contamination,” such as having been used to store heaps of bovine excrement.
Judge Seeborg appeared to anticipate appeals based on the FDA definition.
“Quite simply, language evolves,” Seeborg wrote in his ruling. “Absent anything from the state [of California] 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.”
Observed Petaluma Argus-Courier editor Tyler Silvy, “The [Seeborg] ruling comes less than a week after Miyoko’s Creamery officials announced [having raised] $52 million in new capital, boosting the company’s profile in the $5 billion dairy alternatives market.
“Established in 2014 and located in Petaluma since 2017,” Silvy noted, “Miyoko’s Creamery makes a variety of plant-based cheeses, including its cheddar and pepper jack options made with oat milk, a vegan mozzarella and an organic, cashew milk-based artisan cheese wheel. Vegan butter offerings represent the company’s bestselling products, helping boost boost the company’s sales by more than 160% from 2018-19 while the company pushes its products out to 30,000 stores nationwide.”
Dairy industry likely to fight on
Miyoko’s success notwithstanding, the conventional dairy industry is worth $6.4 billion in California alone, and has the resources to continue the fight over product definitions for years to come.
Even without an appeal, the Miyoko’s Creamery case against the California Department of Food & Agriculture is technically still alive for a few more days. As Silvy mentioned, “Seeborg ordered the two sides to file a report agreeing to a form of judgment or detailing any remaining issues in the case by September 2, 2021.”
But as Miyoko Schinner herself pointed out to vegan activist Jordi Casmitjana, “Dairy has been plummeting since the 1970s, even before plant-based came along. Plant-based milks now represent about 14% of the fluid milk category, but they are growing at about 19-20% a year.”
U.S. cheese consumption continues a 120-year growth trend. Cheese consumption alone, though, cannot sustain the dairy industry, especially against increasingly strong competition from Miyoko’s Creamery and other vegan producers.
The Seeborg ruling, meanwhile, is already having ripple effects around the world.
“This is what common sense would dictate but Big Dairy is trying the same intimidatory tactics in India. They will lose here, too,” predicted Blue Cross of India chief executive Chinny Krishna.
“Go vegan,” Krishna finished. “It’s good for the environment; it’s good for your health; and it is certainly good for the animals.”
Such statements just a few years ago were widely seen as heretical in India, which leads the world in milk production and number of cattle. But even as the number of dairy-consuming vegetarians in India has dropped from more than half of the total population to 38% at most, 19% of Indians now profess veganism.
Thus far, the dairy and meat industries have managed to reserve the use of “milk” and “meat” terminology to themselves only within the European Union, and there only to a limited extent.
The European Union Parliament on October 23, 2020 “voted to reject Amendment 165, a ban on terms such as ‘burgers’ and ‘sausages’ on products that do not contain animal meat,” reported VegNews senior editor Anna Starostinetskaya.
However, Starostinetskaya added, “Amendment 165 was part of a larger agricultural package of measures, which included Amendment 171, which seeks to extend existing restrictions on dairy-related terms, a measure that the EU approved. Terms such as ‘almond milk’ and ‘vegan cheese’ are already banned on products in the EU, but 171 now further restricts dairy alternatives from using descriptive terms such as ‘yogurt style’ and ‘cheese alternative.’”
Even more stringent restrictions on the use of language by vegan food producers are effect in France.
The Dairy Pride Act of 2021
The U.S. dairy industry in April 2021 pinned high hopes to a bill introduced by U.S. Senators Susan Collins and Angus King of Maine, a Republican and a declared independent, respectively, cumbersomely entitled the “Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act,” better known as the Dairy Pride Act of 2021.”
This bill, explained Collins and King in a joint media release, “would require non-dairy products made from nuts, seeds, plants, and algae to no longer be mislabeled with dairy terms such as milk, yogurt or cheese.”
Referred to the Senate Committee on Health, Education, Labor, & Pensions, the Senate bill has not advanced.
A companion bill, introduced in the House of Representatives by Peter Welch, a Vermont Democrat, was assigned to the House Committee on Energy & Commerce, and also has not advanced.
This does not mean that either bill is dead. Either or both could attract additional cosponsors and/or be added to sure-to-pass legislation such as an omnibus budget bill before the end of the current Congress.
Laws attempting to pre-empt the use of food terms by vegan manufacturers have already been adopted in Arkansas, Alabama, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming.
None of these laws, however, have been successfully enforced.
U.S. District Judge Kristine G. Baker of the Eastern District of Arkansas in December 2019 indefinitely delayed enforcement of the Arkansas state law.
Baker ruled that plaintiffs led by the Tofurky Company 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.
The Tofurky Company was represented by the American Civil Liberties Union. The Good Food Institute and the Animal Legal Defense Fund also joined the case.