A U.S. District Court judge has ruled a producer of vegan, plant-based products can use dairy terminology on its labels, potentially setting precedence on other cases and laws regarding the use of animal-derived words on labels. 

In a partial summary judgment, Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted Miyoko’s Creamery a motion to prevent the California Department of Food and Agriculture (CDFA) from enforcing labeling claims for the use of the terms “lactose free” and “cruelty free” on its vegan “butter.”

The legal dispute began in 2019 when CDFA notified Miyoko’s the label gave the misleading impression of “a dairy food without [traditional dairy] characteristics” and asked Miyoko’s to remove the terms from its label. In February 2020, Miyoko’s filed a lawsuit to prevent CDFA from enforcing its demands, stating it violated the First Amendment of the U.S. Constitution.

CDFA argued in the lawsuit the use of the term “butter” violates federal labeling requirements, which stipulate it should contain 80 percent milkfat and misleads consumers. Lawyers for Miyoko’s cited the Feltz study, which found the public differentiated plant-based milk products 88 percent of the time, animal-based milk products 84 percent of the time and plant-based cheese products 81 percent of the time.

Seeborg stated in the ruling that while CDFA “deserves a sort of constitutional credit for old age: because the statute has been on the books for 90-odd years, it must be especially reflective of what consumers understand ‘butter’ to mean.” Seeborg stated “language evolves,” and the “vintage of the federal definition of ‘butter’ counts against Miyoko’s.”

While the federal standard stipulates it should contain 80 percent milkfat, Seeborg argued, the question is whether the use of the term “butter” followed by “vegan” and the use of the term “made from plants” amounts to consumer confusion. Seeborg wrote CDFA “in essence insinuates it should not be held to demonstrating consumer confusion specifically attributable to Miyoko’s ‘vegan butter.’ This, of course, is not the law.”

Seeborg also allowed for the use of the terms “lactose free” and “cruelty free,” but ruled for CDFA on “hormone free” and “revolutionizing dairy with plants,” saying those terms were “plainly misleading.” CDFA argued the product contains naturally occurring plant hormones, and Miyoko’s, in a reply brief footnote, withdrew its challenge to the term. 

After the ruling, Miyoko Schinner, founder of Miyoko’s, said in a written statement, “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.” 

Schinner continued, “Food is ever-evolving, and so too should language to reflect how people actually use speech to describe the foods they eat. We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food.”

The Plant Based Foods Association (PBFA) told FoodNavigator-USA the win is a victory for the industry, and “the rights of plant-based companies to label their food accurately with commonly understood descriptive terms such as ‘milk’ and ‘butter’ alongside industry qualifiers such as ‘plant-based’ or ‘vegan’ is one of the founding principles of PBFA.”

PBFA and Upton’s Naturals previously sued Mississippi after the state passed a law banning traditional meat terminology on alternative products. The lawsuit was voluntarily dismissed after an agreement was reached with the state that a plant-based food product would not be considered “meat” as long as it is clearly labeled with qualifiers such as “meat free,” “meatless,” “plant based,” “veggie based,” “made from plants,” “vegetarian” or “vegan.”

Other plant-based lawsuits are pending in Arkansas and Oklahoma, challenging that certain plant-based labels are confusing or misleading for consumers. 

The Food and Drug Administration (FDA), along with USDA, announced in February 2020 it was seeking comments on the revision and modernization of labels. The rule was first proposed in 2005 to “promote honesty and fair dealing in the interest of consumers and protect the public” by allowing for technological advances in food production and to be “clear, simple and easy to use for both manufacturers and the agencies that enforce compliance with the standards.” The USDA and FDA did not finalize the proposed rule in 2005 “due to resource constraints and competing priorities.” No action has yet been taken. — Charles Wallace, WLJ editor 

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