Agricultural producers of all stripes – meat, and dairy – are frantically circling the wagons against an onslaught of plant-based products that attempt to mimic the real McCoy.

Big Meat and Big Dairy have planted their flag on what they believe these food-wanna-bees can call their products.  In their worldview words like meat, milk, and butter are verboten.  And they’ve heavily lobbied states to enact laws restricting veggie-based-proteins and other meat alternatives from calling their wares burgers, hot dogs, sausage, butter, and the like.  Among states signing on to this nonsense include Missouri, Mississippi, Arkansas, and Louisiana.

Just how goofy this has become is that a couple of states – Missouri and Mississippi – have made violations of meat advertising laws a criminal offense with potential time in the slammer.

Proponents swear on a stack of bibles that meat and dairy labeling purity is needed to prevent confused consumers from thinking plant-based alternatives are something they are not.

But lawyers fighting for plant-based meat and dairy alternative companies counter the First Amendment says otherwise; that there isn’t legal standing for censoring packages with truthful labels.

I’ve not yet met anyone who thinks a veggie burger comes from a steer or that almond milk comes from a cow.  But not being a judge I can’t render a decision that definitively says peanut butter doesn’t contain butter or zebra cakes don’t contain zebra (as if anyone truly thinks that in the first place).

The veggie/plant-based crowd on the other hand are taking their grievances to court.

One of the highest profile cases concerns Miyoko’s Kitchen and its vegan butter.

To wit last December the California Department of Food and Agriculture ordered Miyoko to stop labeling their product “vegan butter made from plants,” saying it does not meet the definition of butter requiring a product be made exclusively from milk or cream containing no less than 80 percent milkfat.  The CDFA also took exception with Miyoko’s claims its vegan butter is “lactose free,” hormone free,” “revolutionizing dairy with plants,” and “cruelty free.”

Miyoko responded this past February with a lawsuit to prevent California from enforcing its cease and desist order.  Miyoko didn’t hold back in its rational of why California is getting in its grill:

“In censoring Miyoko’s mission, its animal-friendly imagery, and its accurate descriptions of its plant-based products, 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.  Because of the growing consumer demand for plant-based alternatives, conventional meat and dairy producers increasingly view plant-based foods as a threat…The State of California’s enforcement and regulatory position—as embodied in its December 9, 2019 letter to Miyoko’s, its similar communications to other plant-based food producers, and its application or proposed application of state and federal statutes and regulations as reflected in the letter—unreasonably restricts 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, including referring to plant-based products using dairy and dairy-analogue term.”

Northern District of California judge Richard Seeborg in late August found yes sirree bob Miyoko has a case – a strong one to boot.  Seeborg issued a preliminary injunction blocking California from enforcing most of its labeling demands on Miyoko. 

Seeborg found California’s argument that Miyoko’s vegan butter labeling is misleading pure poppycock and he took particular exception to California’s milquetoast’s arguments.  The state offered up a single case – Duran v. Hampton Creek – regarding the labeling of an egg-less mayonnaise in which California forgot to mention to Seeborg that the label consisted the phrase “Just Mayo” along with a picture of an egg.  In other words the label contained NO qualifiers such as “vegan” or “made from plants.”  Duh!

In short California failed to present a compelling case.  Seeborg ruled “….the State’s view of “butter” stands largely by itself—unanchored by precedent, empirical research, or any other form of independently authoritative ballast—it does not disturb the weight of evidence tending to show that Miyoko’s use of that word is likely not misleading.”

Seeborg did order Miyoko to stop using the phrases “hormone free” and “revolutionizing dairy with plants.”  In the former Seeborg noted vegan butter does indeed contain hormones and the latter was viewed as misleading because “revolutionizing dairy” would imply “direct interaction with animal-based milk products in a way that leaves them “fundamentally” different than they were before.”  And that’s not the case for Miyoko vegan butter.

But Miyoko carried the case in chief:  consumers are hip to the fact that vegan butter is not made from cow’s milk and the company is covered by the First Amendment.

And given Seeborg cited other labeling cases around the country won by the plant based community (including Ang v. Whitewave Foods Co., Gitson v. Trader Joe’s Company, and Turtle Island Foods SPC v. Foman) this case provides additional weight to the whole labeling law kerfuffle.

Should the state of California continue its pursuit of Miyoko it is likely to lose.  In his ruling perhaps Seeborg will declare Miyoko…it’s like buttah.

About Dave Dickey

Dave Dikcey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at dave.dickey@investigatemidwest.org.

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