Last week, U.S. District Court Judge Richard Seeborg of California's Northern District Court ruled Miyoko's Creamery, maker of a vegan butter, may use the word "butter" to describe its, well, vegan butter.
As the ruling details, Miyoko's received a warning letter from California agricultural regulators in December that claimed the company's vegan butter products and website "ran afoul of state and federal law." In that letter, California dairy regulators informed Miyoko's that its vegan butter "'is not butter' and may not imply it is 'a dairy food.'"
Miyoko's, which is sold at thousands of U.S. and Canadian retail outlets, including Safeway, Whole Foods, and Costco, sued in February, arguing the state's misguided threats could cost the company millions of dollars while violating the company's First Amendment rights.
Last week's ruling enjoins California from enforcing any ban on Miyoko's use of the term "butter" while the lawsuit proceeds.
"This victory is the latest in a growing trend of common-sense labeling decisions made in courts across the United States," said Michele Simon, executive director of the Plant Based Foods Association, which represents plant-based food producers.
The warning that California regulators sent Miyoko's alleged the company's butters violated state and federal "standards of identity" for butter. As I write in my book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, standards of identity "establish specific rules for what foods may be labeled under a given name," including ingredients that may, must, or may not be present in the food, sometimes even specifying acceptable percentages of such ingredients. For example, as I note in the book, the USDA's standard of identity for hot dogs ("hotdogs") declares they must contain "raw skeletal muscle meat… may (but need not) contain 'poultry skin' and pig lips [and] may not contain more than 30 percent fat."
"In the State's central thesis, Miyoko's product does not meet the federal standard for 'butter' (which it cannot be called without dairy and an 80% fat content), barely evades being 'margarine' (which it would have to be called if it was slightly fattier), and ought to be sold as a 'spread' (non-enforcement around peanut-and-fruit-based "butter" notwithstanding)," Judge Seeborg's ruling explains.
Dictionary definitions of "butter" make clear that use of the term a) is not limited to products made from animal-based ingredients, and b) may include vegetable-based ingredients. For example, Dictionary.com, which uses definitions pulled chiefly from Random House's popular unabridged dictionary, defines butter to include "any of various other soft spreads for bread: apple butter; peanut butter" or "any of various substances of butterlike consistency… and certain vegetable oils solid at ordinary temperatures."
I was extremely pleased to learn Judge Seeborg's ruling cited Ocheesee Creamery v. Putnam—a 2017 federal court case in Florida in which I served as an expert—as support for Miyoko's position. In Ocheesee, Florida regulators attempted to force a small, all-natural creamery to stop using the term "skim milk" to describe its 100 percent skim milk because the state's standard of identity for "skim milk" required the frivolous addition of vitamin A* to all skim milk—something Ocheesee refused to do.
In my book and elsewhere, I've argued all standards of identity are absurd and may be unconstitutional. While Judge Seeborg doesn't go that far in his ruling, he makes a point that I made in my expert Ocheesee testimony and report: a government body may not redefine a word to the exclusion of its traditional and usual dictionary definition.
"[J]ustifying governmental speech regulation using the government-issued dictionary is troublingly self-fulfilling," Judge Seeborg writes.
Just as happened in the Ocheesee case, one the chief claims of California regulators in the vegan butter case is that the product in question was somehow misleading consumers. Miyoko's countered that no reasonable consumer has been, is, or could be fooled into thinking its products are derived from animal milk rather than from plants. The company's packaging and messaging prove that fact. For example, the front of the company's European Style Cultured Vegan Butter packaging alone uses the word "vegan" twice, notes the "cashew & coconut oil spread" is "100% crafted from plants," is "lactose free," states that it "contains nuts," and boasts a photo of a dozen or so cashews.
"I don't think there's a single confused consumer out there," owner Miyoko Schinner told Bay Area news station KPIX in February. "No more than a consumer is confused when they order almond milk. They know it's not dairy milk. In fact, they're ordering almond milk because they don't want dairy milk!"
Judge Seeborg agreed, noting that California had failed to identify even one consumer who claimed they'd been misled by Miyoko's. He referred to the state's position as "underwhelming" and "unanchored by precedent, empirical research, or any other form of independently authoritative ballast."
As in the vegan butter case, makers of many other foods produced using cow's milk often claim exclusive domain over words that, both historically and presently, do not even imply such ownership. As I've detailed many times—including in Biting the Hands that Feed Us and here—"the dairy industry has been making a living out of seeking government protection against its competitors since, perhaps, the dawn of time. And the federal government (along with state governments) has a long and sordid history of obliging the industry."
That's protectionism, plain and simple. And that is in fact exactly—wholly and only—what the Miyoko's case is all about. The state really must hate that everyone knows it, too.
"Miyoko believes this is simply a government agency trying to protect an industry that feels threatened by change," the KPIX report notes.
"California's move against Miy[o]ko's comes amid a nation-wide battle by dairy and meat producers to quash the growth of plant-based alternatives," the San Jose Mercury News reported in February after Miyoko's sued the state.
"The dairy lobby's efforts to use the California government as a tool was thankfully overruled by a judge who upheld the First Amendment, not to mention common sense," Simon, of the Plant Based Foods Association, told me by email this week.
This month's ruling is a win for free speech and food freedom and a blow to protectionism. That's like butter.
*An earlier version of this article mistakenly identified vitamin E as a required additive to skim milk.