A legal analysis of the meat and dairy industries' temper tantrums over the labeling of vegan food

As reported last week, Miyoko's KItchen won a significant lawsuit against California regulators. The much loved vegan butter and cheese company, based in Sonoma, California, was under fire these past few years for their apparently controversial -- but accurate -- use of terms like 'vegan butter' to describe their products. Fortunately, the California District Court recognised that it was truthful commercial speech, not to be unreasonably restricted. This victory is a big one given how prevalent similar suits have been since the rise in popularity of vegan foodstuffs.

Even though Miyoko herself gave her 2015 Vida Vegan Con talk at the same time slot as mine and so like 90% of conference attendees went to hers instead of mine (I mean I would have too) (shout out to all the awesome people who came to mine), I was furious for her over the conflict. Truly, as vegan products gain traction over their cruelty-filled counterparts, Big Ag and animal product companies appear more and more scared. The Animal Legal Defense Fund (ALDF), the organisation that acted as Miyoko’s counsel, said as much, calling the attempt to censor Miyoko an example of ‘agency capture’: “The fact that animal-milk producers fear plant-based competition does not give state agencies the authority to restrict one industry in order to help another,” said ALDF executive director Stephen Wells.

The case dates back to December 2019, when Miyoko’s Kitchen received a complaint from the California Department of Food and Agriculture (CDFA*) ordering the company to cease doing several things that they had every right to keep on doing, like the CDFA was a cop in America. CDFA said Miyoko’s had to stop calling the product ‘butter’, to stop claiming the products are cruelty-free, to stop using the phrase ‘lactose-free’, even to remove from the company website a picture of a woman hugging a cow! (That picture was taken at the farm animal sanctuary that Miyoko founded, by the way. Someone please tell me the legal grounds the CDFA pulled out their asses for that one.) After receiving this ridiculous enforcement letter, Miyoko’s sued CDFA in early 2020 in the Northern District Court of California. The case rested on First Amendment grounds: the company argued that the CDFA’s enforcement attempt would seek to unconstitutionally censor truthful commercial speech, violating the company’s free speech rights. The CDFA then moved for dismissal of the suit, which was denied in June 2020. In August of last year, the court granted Miyoko’s a preliminary injunction against the CDFA enforcement action, so that they could continue their normal labeling process as the case progressed.

Finally, on August 10, 2021, the court ruled in favour of Miyoko’s Kitchen, stating that CA regulators cannot restrict the company’s use of truthful commercial speech, which it found most of the contested phrases to be. (The CDFA did win on one ground -- the court agreed that Miyoko’s must cease using the claim ‘hormone-free’ because the products contain plant hormones. An annoying technicality, but in terms of the bigger picture, not a huge loss.)

The CDFA argued that terms like vegan butter are confusing and misleading for consumers, which like, maybe 50 years ago would have had some sway but now are laughable. The CDFA relied on a 2018 study that found 26% of consumers misidentified plant-based cheese products. However, U.S. District Court Judge Richard Seeborg pointed out that 19% of people in that same study were also confused by animal-based cheeses. And honestly, the only confusion I’ve ever heard about is that vegans keep forgetting that Trader Joes’ “almond mozzarella cheese alternative” is NOT actually dairy-free! It has casein! Where’s the lawsuit about how forking confusing and misleading - and FALSE! - that labeling is.

Given the CDFA’s unconvincing evidence that Miyoko’s labeling and marketing practices were anything but factual, the court found in the company’s favour, finding the regulator’s action an attempt to unconstitutionally censor truthful commercial speech, violating Miyoko’s First Amendment right to free speech. And the truth! Will set you free!! (Fun fact: That's a quote (at least how I'm shouting it) from a movie, and another quote from that same movie was the title of my Vida Vegan Con talk. Yeah, the one everyone skipped to hear Miyoko talk about (let's say it all together now because we can!) vegan butter. Not still bitter!) The regulator took issue with her use of the word ‘butter’, but the words ‘cultured vegan’ were right in front of it. Such terminology has quickly become a common part of our language, and an accurate way to describe vegan products. “Using words such as ‘butter’ and ‘milk’ in the context of even products made from plants and not from animals is common parlance among consumers in the modern world,” said CEO Miyoko Schinner, adding that language should reflect how people actually use speech.

Although the case was heard in a federal court, it will not be binding precedent on other lower courts unless confirmed on appeal. Meaning, for similar fights in other districts or states, a party may point to this case as persuasive on the matter, but the court is not controlled by the decision.

For the many similar fights we have seen here in the EU, this decision will of course not have any bearing (not to mention the fact that it’s based on U.S. constitutional law), but it can still be shared in the hopes of being persuasive. And with any luck, this decision signifies a coming sea change in the prevalence of such cases.

Last year, for example, the EU made the opposite decision regarding plant-based dairy products. In October 2020, when the European Parliament rejected a proposal to ban the use of words like ‘sausage’ and ‘burger’ to describe plant-based products (a ‘victory for common sense’, obviously), MEPs contradictorily voted to ban an indirect reference to dairy products for non-dairy foods. Meaning, for them, they would have found in favour of the CDFA. In fact, under this rule (Amendment 171), the MEPs banned vegan products from using not only ‘milk’ (even if preceded by ‘almond’ or ‘oat’ or ‘soya’) and ‘butter’ (even if preceded by ‘nondairy’ or ‘vegan’), but also phrases like ‘yogurt-style’ and ‘cream imitation’! (What on EARTH did they want these products to be called??) Apparently, the amendment would also ban similar packaging, for crying out loud, like cartons for plant-based milks and blocks of margarine, which is insane.

Europe’s largest farmers’ association, Copa-Cogeca (I can only read it as Copa Cabana but that’s neither here nor there), supported the ban on grounds that bringing meat to mind when labeling vegetarian substitutes was misleading for the consumers. Have any of these people actually spoken to consumers? They know what’s going on. Anyway, this case made it seem that Big Dairy was more influential in the EU than Big Meat, since lawmakers accepted the harsh restrictions only on dairy alternatives. In fact, terms like ‘almond milk’ and ‘soy yogurt’ had already been banned in Europe since 2017. This proposed amendment made things ever stricter.

Fortunately, the European Parliament recently announced its withdrawal of Amendment 171. In May of this year, the European Parliament undid its previous decision that banned dairy-related wording for plant-based substitutes. It’s unclear what precipitated the about-face -- although, you may notice that a lot of my sources come from Australian news sites, which report that these changes make it easier to trade with Aussie companies. (Or maybe the politicians were cooking for themselves one day and grabbed a can of coconut milk or a jar of peanut butter and went ‘ohhhhhhhhhhhhh.’

As the European Consumer Organization, an umbrella group of consumer associations, said in 2020, such decisions like Miyoko’s lawsuit and the Amendment 171 turnaround, are common sense. “Consumers are in no way confused by a soy steak or chickpea-based sausage, so long as it is clearly labelled as vegetarian or vegan.” Seriously, where is the hard evidence that sufficient people are confused? Like I said, the only confusion I’ve ever heard about in real life is in the other direction - when people think non-vegan products are actually vegan because it says ‘plant-based’ (which isn’t a protected or controlled term) or ‘non-dairy’ when they aren’t actually. Companies using animal products are the ones causing obvious confusion on my end, trying to join up to the plant-based trendiness without being transparent or accurate. It’s not the vegan companies causing confusion, not with their bending over backwards to use words like substitute and vegan and plant-based and ‘__-like’ and ‘___-style’ and copy etc etc etc!

Although it’s frustrating that such accurate, widely accepted terminology still gets regularly challenged, we hope that these recent events signal related victories to come.

*Not to be confused with CFDA, the Council of Fashion Designers of America, which I’m sure you also keep reading it as.