Food

California Court Rules Vegan Creamery Has First Amendment Right To Call Products 'Butter' and 'Cheese'

Who thought it was a good idea to give the government control over marketing?

|

On August 11, the U.S. District Court for the Northern District of California ruled in favor of Miyoko's Creamery in its lawsuit against the California Department of Food and Agriculture (CDFA), upholding the company's First Amendment right to use terms like butter and cheese in marketing its vegan products.

Based in Sonoma County, California, Miyoko's Creamery produces artisanal vegan alternatives to traditional dairy products. In just over five years, its popularity has exploded with distribution in Whole Foods, Trader Joe's, and other major supermarket chains.

The company is known for its popular vegan butter made from cashews, coconut oil, and sunflower oil, as well as other high-end alternative products like vegan mozzarella, cream cheese, and cheese wheels—all of which I can attest are very good.

Last year, the company received a threatening letter from the CDFA demanding it alter its marketing in the state. Although its labels clearly read "cultured vegan butter," the department requested the creamery stop using dairy-related terms on its packaging altogether, claiming Miyoko's marketing was in violation of the U.S. Food and Drug Administration's labeling regulations.

California ordered the company to remove the terms butter and cheese and cease to refer to its products as "lactose-free," "hormone-free," or "cruelty-free." Instead, the state suggested that Miyoko market its vegan butter as oh-so-appetizing "cashew cream fermented from live cultures." To do so would require an inordinate investment to produce custom packaging for sale of the product in California.

The letter doubled down by also ordering the company to scrap its mission statement, "Revolutionizing Dairy with Plants," and to remove an image of a woman hugging a cow from its website. The photo in question is that of a volunteer at a nonprofit refuge for farm animals, Rancho Compasión, which was started by the creamery's founder Miyoko Schinner.

At the forefront of the burgeoning movement toward ethical and sustainable alternative foods, Schinner was shocked by the letter, saying, "California is supposed to be an innovative and progressive state, and yet they are putting up roadblocks that could harm innovation."

Nonetheless, the meat and dairy industries and their lobbyists insist that terms like cultured vegan butter and plant-based cheese confuse consumers who are not seeking vegan products. Similar moves to police marketing of vegan and vegetarian products have been made around the country, including in Mississippi, Arkansas, Texas, and Louisiana.

Miyoko's Creamery filed its lawsuit against the CDFA in February 2020. The company was represented by co-counsels Deepak Gupta and Neil K. Sawhney of the Animal Legal Defense Fund (ALDF), which "has been at the forefront of demanding and enforcing fair regulation of plant-based foods."

According to a statement from the company's legal team, the lawsuit argues that "the CDFA's enforcement position is an attempt to unconstitutionally censor truthful commercial speech, violating Miyoko's First Amendment right to free speech." This month, Judge Richard Seeborg of the U.S. District Court for the Northern District of California agreed.

In his August 11 ruling, Seeborg found the creamery's marketing tactics to be truthful and upheld the company's First Amendment rights to label its products as vegan alternatives to traditional dairy. Seeborg also pointed out a major hole in the state of California's argument: There was no evidence of consumer confusion or marketing deception.

"The state's showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming," he said. "Nowhere, for instance, does the state present testimony from a shopper tricked by Miyoko's vegan butter, or otherwise make the case for why Miyoko's substitute spread is uniquely threatening to the public."

The ruling marks a major victory for free speech and free markets in the vegan space. According to ALDF Executive Director Stephen Wells, the decision also chips away at the corrupting power that industry lobbyists wield over governmental agencies.

Indeed, California is by far the largest source of dairy in America, producing 41.3 billion pounds of milk in 2020 alone. But the rise of vegan products has proved swift and threatening. As the market shifts toward dairy alternatives, the traditional dairy industry and its lobbyists have been reactive.

"The CDFA's attempt to censor Miyoko's from accurately describing its products and providing context for their use is a blatant example of agency capture," Wells said in a statement. "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."

Schinner is confident that the ruling will fortify the burgeoning vegan industry that is providing sustainable and ethical alternatives to traditional animal products. "Food is ever-evolving, and so too should language reflect how people actually use speech to describe the foods they eat," she said in an ALDF press release. "We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food."

NEXT: ‘Do I Look Like the COVID Police?’

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Shit by any other name is still shit.

    1. Doesn’t CA have a law against false advertising?
      So now fraud is legitimate in CA?

      1. Only If it’s the good kind of fraud.

        1. Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening…ADs And i get surly a check of $12600 what’s awesome is I m working from home so I get more time with my kids.

          Try it, you won’t regret it!…….. VISIT HERE

      2. What fraud is involved here? “Plant-Based Vegan Cheese” makes no secret of what the product is. In fact, “Plant-Based Dairy Cheese” is equally accurate, since cows eat vegetation.

        I, for one, still eat dairy cheese from cow’s milk, but I do love Country Crock Plant Butter. Tastes just like cow’s milk butter without cholesterol or transfat, yet it stays soft even in a near-freezing refrigerator.

        1. None, it’s just some Trumper’s saying “regulations for thee but not for me”

        2. No it doesn’t. These product do not contain the same proteins that are in real butter or cheese. If they call it cashew butter that would be accurate. There are real vegan products that do contain the same components as dairy products (like Perfect Day ice cream and cream cheese). The proteins are just made synthetically instead of being taken from a cow.

          1. Of course, no one in the article mentioned protein content as a criterion for distinguishing dairy cheese from Vegan Cheese, so Iam I missing something or is there goalpost moving going on here?

        3. You literally cannot create cheese or butter, or call yourself a dairy, without dairying- the process of harvesting animal milks. I’m happy to even open that up to plant milks, but there is no such thing. Because milk is, by definition, created by the mammary gland of mamals.

          1. In the store where I work, the Dairy Department not only includes milk, cheese, sour cream, yogurt, and creamer, but also eggs, puddings, Jello, fruit juices, and bottled teas. Are they deceptive or wrong for doing so?

    2. Speaking of, there’s a salve for diaper rash called Butt Butter. Would that fraud too by the Food Fascists and Culinary Commies?

      1. Correction: Would that be called fraude by the Food Fascists and Culinary Commies?

      2. Is there a difference between plant butter and butt butter?

        1. Checking it out, I find there are actually several brands of butt butter made of different varieties of items like cocoa butter, shea butter, beeswax, Vitamins A and E, and lavender, mint, and other scents. No milk, lots of plant derivatives, but still called butter.

    3. yes and not forgetting that .. one of the 3 causes of arteries calcifying, clogging-up are.. (and NONE are dietary nor blood total cholesterol).. High blood homocysteine. This needs to be lowered with B vitamins B12, B6 and folates. Surprise. Butter and cream synthesize all the B vitamins in the gut with the help of the ‘friendly bacteria’. In along term, large scale study.. two groups were geographically separated by their work. They were of the same genetic origin, the same age group and the same activity level. Those that ended up in the North cooked all their food in butter and ate plenty of animal fat. They smoked more than the Southern group. The Southern group had a pure vegetarian diet. YET… The Southerners had 15X (fifteen times) the heart disease incidence of the northerners. Note butter contains vitamin K2.. that directs calcium to hard tissues, bones, and away from soft tissues, arteries! (Malhotra SL, Dr. 1974- Published 11X in The Lancet).

      Butter is high in… Vitamins A and D, essential to the proper absorption of calcium, necessary for strong bones and teeth; the protective omega fatty acids are in perfect proportion; health giving: arichidonic acid, short and medium chain fatty acids and conjugated linoleic acid; vitamin K2 that directs calcium into your hard tissues, the bones, and away from your soft tissues, arteries, preventing arteries calcifying and narrowing; iodine, selenium, manganese, zinc, chromium, and lecithin.. in a form easily utilized by the body; raw milk butter has the Wulzen factor that protects joints against calcification, as well as preventing hardening of the arteries, preventing cataracts and preventing calcification of the pineal gland in the brain.

    4. A few months ago, Safeway had a coupon for free vegan “mayonnaise.” I figured, “Hey, it’s free, so why not try? It was nasty stuff – one taste and it went into the trash. I think it’s that way for many vegan products. But as long as it’s clearly labeled vegan, no sweat off my arse. On the other hand, I’d be pretty ticked off if I went shopping and found that I had purchased that vegan garbage by mistake. No doubt there have been cases where the labeling was misleading.

  2. It shouldn’t even be allowed to call itself a creamery.

      1. I made over $700 per day using my mobile in part time. I recently got my 5th paycheck of $19632 and all i was doing is to copy and paste work online. this home work makes me able to generate more cash daily easily.FTc simple to do work and regular income from this are just superb. Here what i am doing. Try now………

        Click Below Webpage………….. VISIT HERE

    1. Well, it had the fascists creaming their jeans at the prospect of yet another incursion on the first amendment.

      1. Fascists…riiiiight.

        We all know that the far right is the defender of butter, while The Woke want to allow anything that “identifies” as butter to legally be butter.

        1. Fascists and Communists would both starve us all to death if they had their druthers on social engineering and both have starved people to death in the past 100 years.

          What they call the food they control and deprive of us making and enjoying is kind of tangential and irrelevant from a libertaian foodie standpoint.

    2. word meanings need to be agreed to by speakers and listeners. They can call it cheese or whatever they want, and I can make my decision if it is or not. Lies and deception are a big part of current society. Isn’t deceit a fraud?

      Think of all the items that could be considered mis-labeled.

      Pravda

      1. Words have meanings, but words can also change meanings over time with no nasty Orwellian aftertaste.

        Prime example: Back when I was in the second grade over 40 years ago, the word “run” had over 100 definitions in the dictionary. Who knows how many it has now in the Information Age?

    3. If what they sell has a creamery texture, why not?

    4. It should be able to call itself a Brewery if it fucking wants to. Some libertarian you are.

      1. If people are so fucking stupid as to not read the label they have bigger issues than buying some vegan garbage labeled as “plant based cheese”

      2. Brewery would at least describe its products better.

  3. Government may not have a right regarding speech, but it has been a guarantor of contracts. If contracts are to have validity, they have to have meaning, thus the use of language and specific words needs to conform to generally understood norms.

    Calling it “butter” when it is not made by the churning of cream seems to be a bridge too far. If margarine could not be colored to look like butter, even though it was clearly labelled “margarine”, how much worse is it to call something “butter” that has no material that comes from milk?

    1. This is the country where a person with a dick and balls can become a woman simply by saying he is one. Why not let vegetable oil self-identify as cream or sheep droppings be sold as gumdrops?

    2. Apple butter
      Peanut butter
      Soy-nut butter
      Cocoa butter

      Any cow’s milk in those? Government does have a role in enforcement of contracts but you don’t get to arbitrarily redefine language to enforce a status quo that doesn’t actually exist.

      1. I agree. The problem is with the editor’s subhead attacking “government control” in cases of such disputes. There is plenty of precedent regarding other butters; cheeses, well, head cheese? But no matter the decision, as long as it runs the courts, government can’t stay out of the matter, any more than it could stay out of the matter of determining who’s married.

      2. But they butter not call all vegetable matter butter

        1. For butter of for worse.

        2. “Nobody Better Lay A Finger On My Butterfinger!” –Bart Simpson.

      3. That’s a slippery slope. If apples and peanuts and cocoa can all call something butter, then pretty much anything can be butter. This will be a tragedy of the commons. Government must sell the word butter to the highest bidder so that the market can be the best manager of marketing the market for ‘butter’.

        1. You butter quite trying .

        2. A government auction for the right to use a public domain word? There’s something the censors never thought of I’m sure.

          So where’s the tragedy? Everybody uses the word “butter,” yet unlike public land, it doesn’t get polluted or wasted. Everybody exchanges money for “butter” goods and everybody is overall happy except for the pedant-o-philes.

      4. “you don’t get to arbitrarily redefine language”

        Exactly. Which is precisely why this particular “vegan butter” is problematic. First, to be clear, I agree that CA was overreaching here in their demands, but the case is not as straightforward as you seem to argue.

        Here’s the subtle (but important) difference with your listed products: ask yourself — would you use any of them as *substitutes* for standard cow’s milk butter in ALL of the normal uses of “butter”? Probably not. You’re not going to randomly throw peanut butter into a cake recipe instead of normal butter and expect it to turn out the same. Same thing with apple butter or cocoa butter. You might spread some of these on toast, or maybe other applications where you could use normal “butter,” but “butter” without a qualifier generally indicates a substance that can be used in a lot of culinary cases.

        So, when you see a label that says “vegan butter” without any mention of what the ingredients are prominently displayed, there IS deception involved. The company is trading on the reputation of “butter” — not apple butter or peanut butter or whatever, but BUTTER, which by itself is generally understood to mean a cow’s milk product that has hundreds of use cases in the kitchen.

        The implication of “vegan butter,” particularly if it’s packaged and sold in the aisle near dairy butter is that one could potentially use it for all the things one uses “butter” for. There are implications about texture, perhaps even nutrition by mentioning “butter” without any further explanation.

        Ask yourself why they don’t call this “cashew butter.” From the article, that’s clearly what it is. But they don’t call it that, because they know it wouldn’t have as wide of a market, that consumers would think of peanut butter and almond butter and assume this had a more limited set of use cases. But if you call it “vegan butter” without more info, it’s trying to pretend to be “like butter” enough that you’ll think you can just substitute it for “butter,” except it’s not made from animals.

        And maybe you can, but I kind of doubt it. All of these replacement “butters” and “milks” and whatever have culinary tradeoffs, and some of them will mess up your cookies or cakes or whatever.

        But the bigger issue here is the history of these regulations comes out of concern for *adulteration*. These days in the US we’ve become used to adulteration as *standard practice*. A century ago, reformers fought to protect consumers from practices that cheated them out of money when they thought they were buying A but were actually getting B, or maybe A with some of B mixed in.

        Yet a little while back I was at the grocery store and noticed boneless chicken breasts were really cheap. REALLY cheap. Then I read the label — “contains up to 15% chicken broth and salt.” They weren’t selling me “chicken” anymore. The package, in any realistic world, should have read “chicken and broth” in big letters or something. A century ago, the reformers who shut down and changed the meatpackers would have called that fraud. Today, we think of it as business as usual.

        The same thing is true of the “bacon” you buy at most grocery stores. Rather than traditional dry curing, it’s usually injected with a huge amount of saline that makes it fry in weird ways. You’re paying for a bunch of salt water. Oh, and then there’s “uncured” bacon, which is actually still cured, just with things like celery powder that escape regulation words about “curing” — the problem is that concentration of nitrates in things like celery powder is a lot less precise, so they need to use more of it. Which means your “uncured bacon” has more curing salts in it than standard “bacon,” so if you’re looking to decrease nitrates, you’ve been hornswoggled.

        Several years back, a family member kindly bought some Greek yogurt for my (then toddler) son. She thought it was healthy. My son was reacting weirdly, and I tasted it. It was sickeningly sweet. I read the labels… sugar contents were through the roof — it actually had more sugar in it than the equivalent amount of Coke. But the front of the tub of yogurt said “No added sugar.” How do they get away with this? Oh, they didn’t add “sugar.” No, they added “evaporated cane juice.” That is, you take sugar cane, you turn it into juice, and then you evaporate off the water.

        You know what any reasonable person would say you have then? SUGAR! But no, because the “evaporated cane juice” is a little bit different in processing from standard white sugar, they can call it something different and claim “no added sugar,” even if the ingredient is 95+% sugar.

        We are living in a society where fraud on food products is the norm. Where adulteration is the norm.

        Why should we care? You incorrectly claim the “rule about margarine coloration was ruled unconstitutional” in 1898 in another post below. That’s false. Margarine coloration laws existed in many states until the 1960s. The only thing that was unconstitutional was a law that required margarine to be dyed PINK, which was both a joke in the late 1800s (“no man wants to spread something pink on his bread”) and likely an attempt to associate the stuff with disease (as some diseased cows express milk with a slight pink hue).

        No, margarine coloration laws were around for a long time. I know a lot of older people who remember the yellow capsules that came with it because margarine is naturally white, and it was illegal to sell it pre-colored, so you had to knead in the color yourself if you wanted it. That was never ruled unconstitutional. Hell, there are still margarine laws on the books today. Under federal law 21 USC 347, for example, it’s illegal to serve margarine at a public establishment in individual servings unless it’s clearly labeled as “margarine” or “each separate serving thereof is triangular in shape.”

        I wish I were kidding. I think these laws go too far, but the thing is — the impetus behind them was partly a concern about adulteration. That something about the artificial chemical production of margarine wasn’t “healthy” (hence the laws to dye it pink). And guess what? They were right. It took a century for science to catch up, but by the 1990s, it was well-established that the trans fats in margarine were a strong contributor to premature deaths. (Estimates in the 1990s is that margarine consumption probably was adding an excess of 30,000 deaths per year in the U.S. alone.) Now, some of those people would have also died from excess butter consumption, but we know now that trans fats were worse. Margarine manufacturers just subtly changed their formulations to get rid of the trans fat… but they were in fact producing a product that was significantly WORSE for you than butter.

        Again, I’m not agreeing with more extreme laws. But clear labeling is important. Adding something to this “vegan butter” that indicates it’s made from cashews and fermented/cultured or whatever and requiring that to be in large letters isn’t unreasonable. Or they could call it “vegan cashew butter” or something. But simply “vegan butter” is just trading on the reputation of actual “butter” in a deceptive fashion.

        Or would you approve of dairy producers marketing “imitation vegan butter” that contained 15% cow’s milk just to make it taste better? Hell, according to the chicken precedent I mentioned above, why not just call it “vegan butter” and put 15% cow’s milk in it, with some fine print and an asterisk? Is that fair?

        Perhaps more importantly, do you think this “vegan butter” producer would approve of such labeling? Or would it be potentially deceptive? “Vegan” doesn’t have a legal definition, so if we’re going to argue “butter” doesn’t have a definition, why not sell whatever we want as “vegan butter”? (My suggestion would be to lace it with pot. Guaranteed to get people to overcome any hesitation about the asterisk and 15% cow’s milk used in it, which makes it taste better anyway….)

        1. What about back buttering ceramic tiles?

        2. “Yet a little while back I was at the grocery store and noticed boneless chicken breasts were really cheap. REALLY cheap. Then I read the label — “contains up to 15% chicken broth and salt.” They weren’t selling me “chicken” anymore.”

          No kidding. I cooked up a batch of chili this weekend, and the “hamburger” I’d bought turned to soup the moment I applied heat, I must have had to boil off several cups of water before it started frying, it was so pumped full of water that they were selling at over $4 a pound.

      5. OK, all the items you cited are clearly SOMETHING-Butter.

        What will you call this stuff?

    3. By the way, you do remember that the rule about margarine coloration was ruled unconstitutional, right? Collins v. New Hampshire (1898)

    4. It doesn’t matter at all what it’s called if no one is confused.

    5. See my post below… how much worse would it be to have something contain… even a small amount of ‘butterfat’ and still call it vegan?

    6. As long as the “Plant Based” or “Vegan” is prominent, then I think we are quite good. Calling it “Butter” is necessary to demonstrate the use as compared to say, jam.

      The margarine and Pringles situations were mistakes caused by the overreach of protectionist lobbies. One even demanded that Velveta be called “embalmed cheese”. These are mistakes that should not be repeated.

      If someone does not understand that vegan butter has no milk, then no reasonable amount of labelling is possible.

      Finally, the existence of peanut butter and cocoa butter belies your point.

        1. Like girl scout cookies aren’t made from girl scouts, vegan spreas isn’t made from vegans.

          1. Buttplug would be interested in girl scout spread.

            1. Boy Scout spread.

      1. Well stated, Ben.

      2. Velveeta was to be called “embalmed cheese”??? There’s no Formaldehyde in Velveeta, so that would be a lie if anything was.

        1. Alright, I confess, my memory failed me. That incident was in relation to Kraft’s American Cheese, not Velveta specifically.

          The “embalmed” was because of the inclusion of sodium phosphate, which is used in many things, including embalming.

      3. 100% agree. No matter how well you label something there will be some idiot ready to sue, so a couple of modifiers to the description should be plenty enough.

    7. You want to outlaw apple butter and peanut butter too?

      1. As we say in my part of the country, these Food Fascists and Culinary Commies don’t know shit from apple butter.

    8. “If margarine could not be colored to look like butter, even though it was clearly labelled “margarine”, how much worse is it to call something “butter” that has no material that comes from milk?”

      Yeah, except that law was struck down over 50 years ago.

      Calling these products “butter” or some such fools no one (see the judge’s ruling) AND is actually helpful to the consumer because it helps him understand what the product is supposed to be replacing.

      Get over it. This hurt no one.

    9. In a contract the words need to have the same meanings to parties of the contract. When/if government acts as mediator, it needs to ascertain the meanings used.

      Remember when margarine was introduced in the 1940’s with a separate color pack that could be used to make it appear as butter.

    10. They aren’t calling it “butter” they’re calling it “plant based butter” which is completely different. If I told you I was going to sell you toe cheese you would know that you were getting was not traditional cheese.

    11. You make a good point. With really complicated contracts, there certainly should be a lexicon of terms agreed to by all parties along with other conditions, provisos, codicils, etc.

      However, this does not and should not involve government dictating to an entire marketplace what a product is called in a society and culture where language is dynamic.

  4. You know what this article really needs? Pictures of the product’s packaging. If the company is trying to defraud customers by deceptively marketing their product as something it isn’t, or if the USG is just overreaching can’t really be told by written descriptions of the products. The vegans are clearly not selling butter or cheese by the definition that any reasonable person would use, but we can’t take the author’s word that the products are clearly marked as vegan alternates to butter and cheese. So pictures are needed.

    1. Next thing you know, people will be selling horse manure as dinner rolls because muh free markets.

      1. “Rocky Mountain Oysters?”

        1. I have eaten Rocky Mountain Oysters!!! They are rich-tasting and delicious! Rather on the expensive side… I ate them at the “Hungry Farmer” in Colorado Springs about ten billion years ago, when men were men, and rode T-Rexes (T-Mexes south of the border) and Duck-billed dinos were afraid…

      2. Guess what? There’s a company called Food For Life that sells a brand of bread called “Ezekiel 4:9 Sprouted Whole Grain Bread.” It has to be sold in the freezer, doubtless because it’s highly perishable.

        What they don’t tell you is what the verses of Ezekiel 4 say afterwards:

        10 And thy meat which thou shalt eat shall be by weight, twenty shekels a day: from time to time shalt thou eat it.
        11 Thou shalt drink also water by measure, the sixth part of an hin: from time to time shalt thou drink.
        12 And thou shalt eat it as barley cakes, and thou shalt bake it with dung that cometh out of man, in their sight.
        13 And the LORD said, Even thus shall the children of Israel eat their defiled bread among the Gentiles, whither I will drive them.
        14 Then said I, Ah Lord GOD! behold, my soul hath not been polluted: for from my youth up even till now have I not eaten of that which dieth of itself, or is torn in pieces; neither came there abominable flesh into my mouth.
        15 Then he said unto me, Lo, I have given thee cow’s dung for man’s dung, and thou shalt prepare thy bread therewith.

        As The Barenaked Ladies observed: “It’s all been done before.” 🙂

    2. “Although its labels clearly read “cultured vegan butter,” …”

      Not one single person has been fooled into thinking that this was milk-butter!!!

      Just for extra distinction, why don’t they call it “buutter”? Or “bwtter”? Or “Buttter”? Can you imagine some lawyer-slime-sucker arguing “but this isn’t REAL buttter”?

      BTW, sample picture here… https://miyokos.com/products/vegan-butter

        1. On more consideration, if I was in marketing, “butjer” would be best, followed by “bututer”, perhaps. People are funny about words and names!

          VERY interesting article about that below!

          https://www.discovermagazine.com/mind/how-names-and-words-shape-the-way-we-perceive-people-and-things

          How Names and Words Shape the Way We Perceive People and Things
          Some words sound like what they mean. And they could influence everything from fictional depictions of aliens to your first impression on a job application.

          PS, if your “butter” or fake butter contains THC, “hemp oil”, or cannabinoids, it should be called “budder”! Or cannabutter… https://greencamp.com/what-is-budder/

        2. “I-i-i-it’s BUTTERS!”

          “That’s me!”

          –Dialogue from South Park.

    3. There is a link in the article you could follow if you were really interested. Don’t even have to worry about the author’s bias in which pictures are chosen.

    4. Dude why tho? It is labelled as “plant based __________” then people shouldn’t be saved from their outright ignorance. There is no way any god/fsm fearing libertarian would think otherwise.

      1. This! I should add that I don’t fear a God/Flying Spaghetti Monster that does not exist and I’m not fooled either.

  5. California Court Rules Vegan Creamery Has First Amendment Right To Call Products ‘Butter’ and ‘Cheese’

    Don’t have a cow, man.

    1. Why would Parkay get sued, that was their ENTIRE advertising schtick: They weren’t butter, but it was soooo gooood it tasted LIKE butter. Parkay was Margarine and and that was the whole thrust of their advertising campaign.

      1. It was a joke. Jeez.

        1. Fair enough. But your joke actually made a reasonable point. “Products that act like something else” has a long and hallowed tradition. I’m merely trying to find out where the boundaries are.

          1. Where does common sense fit into all of this? Vegan by definition means “no animal products,” so vegan butter or cheese is obviously a dairy-free substitute. It doesn’t take a rocket surgeon to figure that out.

            1. I agree. I think the particular product in question is reasonably labeled. I don’t actually have a problem with this particular instance. If I read “Vegan Butter” I presume there ain’t no butter in it. I’m merely trying to figure out the precedent this sets, and how that might cause the very people celebrating this to step on the proverbial rake some years from now.

              1. How much foreknowledge must someone have? Below I mentioned a case where a guy sued over anchovies in what he thought was a vegetarian marinara. Not sure if it was advertised as such, or if it was just assumed. Either way I can see both sides.

                1. Found it.

                  https://www.deseret.com/1995/4/27/19172209/vegetarian-finds-something-fishy-in-secret-sauce

                  On Tuesday, Magistrate Terence Hunter ordered Pasta Jay owner Jay Elowsky to pay Andrews $463.24 for the meals, plus $14 in court taxes.

                  Only in Boulder.

                2. The guy making the complaint was a fucking cop! No wonder he won.

                3. Absent a true allergy and physical reaction, no one should be able to sue over this. Mentally you didn’t want to eat little fishies? Boo fricking hoo try harder next time. Case dismissed.

                4. I once accidentally ate a piece of anchovy pizza in college and threw my guts up, but if I wasn’t rendered permanently ill, I personally wouldn’t regard it as a justiciable claim.

      2. “Montequilla!” en Español.

    2. Only by Deacon Jones, who was legitimately confused.

      1. Yes, while the narrator carefully tried to warn him it wasn’t butter. The fact that Deacon Jones refused to believe what he was being told is on Deacon Jones.

          1. “Critical Television Eating?”

      2. Ah, but was he actually a Deacon? “The lady doth protest too much, methinks.”

  6. I’m marketing my new form of LBGTQ butter made exclusively from trans-gendered cows. The nice thing is that I can put it in a jar and sell it as LBGTQ mayonnaise or put it in a carton and sell it as a protein shake.

    1. An all bull creamery.

    2. Or hair gel, like in There’s Something About Mary?

    3. That also reminds me: Could bakers sue every male horn-dog and porn producer for product disparagement or misrepresentation if they call sperm “baby batter?”

      Will bakers be telling the likes of Maxim Magazine: “DON’T Bake That Cake?”

  7. Who thought it was a good idea to give the government control over marketing?

    Seems like there’s an interesting precedent going forward here what with this court ruling.

  8. Hey, if we’re going to play “first amendment rights in advertising what our product is called…maaaan” I’m wondering if the court, or the Vegan “creamery” can think of ANY limitations to their own argument.

    For instance, if I create a product that’s 10% milkfat, can I call it Vegan, or would the Vegan product producers… have a cow?

    1. It would be an udder nightmare for them.

    2. You know what, this is a fantastic response. As the india McDonalds fries scandal showed. One of the easiest ways to make vegan products taste better is to add meat products. If the author isn’t just special pleading for his pet cause, he should have no issue with vegan butter containing milk.

      1. This entire situation and court case screams “one way street”.

    3. What if it came from a vegan cow?

      1. Vegan Cow… sounds like a “Women of Antifa” calendar.

        1. “Women of Antifa” is a contradiction of terms. “Vegan Cow” is a redundancy.

    4. I doubt that happens because of super markets. They are in the best position to make sure their customers are getting what they want. If they stock a product called “Impossible Vegan” that contains 10% milkfat and vegans buy it by mistake, they’ll loose customers; customers who pay a premium for shitty food. Same goes the other way, if some vegan company didn’t clearly label their product as vegan w/ 10 million other labels (No-GMOs, Organic…) no one is going to buy their overpriced garbage.

    5. If you label something Vegan that’s not and it causes confusion, you will lose in court.

      That’s the inherent limitation to the argument. It has to actually cause confusion in the market. The state here didn’t even try to present evidence of confusion by customers. And given the specific labels at issue in this case, they couldn’t have. The labels were very clear.

      Your proposed labels? It’s hard to say. If you disclose the 10% milkfat in a clear font at least as large as the “vegan” label, you’d probably win. If you showed in court that “vegan” has no unitary definition (there isn’t) and that there are “vegan” communities that do allow the use of milk (not sure about this but there’s probably some fringe somewhere that allows it), then you’d definitely win.

      1. Your response, while reasoned and logical, essentially illustrates my entire point. By declaring the labeling a “first amendment issue” they are not making statements about “confusion” they’re making a ruling around “speech”. First amendment rulings generally do not attempt to measure the veracity of the speech, or whom was confused by it, they’re arguments about the rights of the speaker to engage in speech.

        This court case feels confusing to me. They declare a first amendment right, but then couch it in terms of confusion (lack thereof), truth etc. So this “first amendment ruling” seems to be backloaded with all kinds of qualifiers and limitations that (I guess) will pop up at the most inopportune time.

        It seems it would have made more sense if the court had said, “No, this isn’t a first amendment issue, but within the confines of speech limitations which advertising and marketing law have laid out, this product is clearly labeled, confused or harmed no one, and therefore is allowed to stand… within the confines of the well-established limits to speech that currently exist in commercial advertising.”

        1. I see your point but disagree with your conclusion. Enforcing contracts by preventing consumer confusion is an acceptable role for government. Thus the regulation was presumptively legal – until it stepped beyond the bounds of the First Amendment by attempting to prohibit speech that was not, in fact, confusing to anyone. It had to be framed as a First Amendment issue because that’s the only basis the court had to overturn the regulation.

          To me the logic goes:
          1. You have a 1A right to say anything you want.
          2. Despite the 1A, governments can ban untruthful commercial speech.
          3. This speech wasn’t untruthful, therefore the exception to 1A doesn’t apply.

      2. IIRC, the distinction between Vegetarian and Vegan is that a Vegetarian doesn’t eat meat, but will eat animal products such as milk, butter, cheese, yogurt, eggs, etc.

        A Vegan, however, does not eat meat or animal products.

    6. “or would the Vegan product producers… have a cow?”

      Only if it’s an organic free-range tofu based cow substitute. 🙂

    7. Yes. Yes you can. Vegan, like organic, doesn’t have a consistent meaning across vegans.

      1. There are no laws in the US defining these terms for marketing or advertising purposes. However, they are in the works, Vegan and Vegetarian groups are lobbying for them. I’ll guess that we may see something in the regulatory space within the next 10 – 15 years.

        1. there aren’t any laws in the works. there are industry groups that are trying to set private standards.

          We don’t need laws any more than we needed laws for kosher or halal.

          1. Actually, there are some laws in the works. There are some industry groups trying to set private standards. There are other industry groups trying to encode their particular variation into regulation as an anti-competitive measure.

            I strongly agree that the former is the better approach.

        2. Well, we can burn that bridge when we come to it. Evolutionarily, both single-celled plants and animals stemmed from the Kingdom Protista, so that is one argument to brinv up.

          Untol then, unless Vegans and Vegetarians can establish into law a hard-and-fast definition of Vegetarian and Vegan, then they are in the same boat as Dairy and Meat producers.

          I say they all get a room, quit ruining my life, and get off of my pasture!

    8. Maybe there should be a color chart like the old terrorist warnings of now circa 20 years ago.

  9. “Hypoallergenic”

    Ingredients: […]; peanuts; […]

    1. But the peanuts they use identify as water.

  10. By the way, it seems to be that the one group most likely to regret this ruling are the Vegans, the Organic food buyers and producers, basically people who might be described as on the ‘left side’ of the food spectrum. They’re primarily the ones obsessed with labeling, ingredients, calorie counts etc. I’m guessing this ‘first amendment’ ruling will either come back to bite them very hard, or be applied entirely subjectively and inconsistently.

    I suggest the future is going to look something like:
    Meat/butter etc: May not contain any actual meat or milk because freedom!
    Vegan: If it contains even tiny amounts of animal product, can’t call it Vegan.

    1. When I moved away from Boulder CO a court case had just made the news. Could probably find it, it was around 1996. A vegetarian guy who believed that this restaurant’s marinara was meat-free discovered that they used anchovies. So naturally he sued. It wasn’t for a huge amount. He basically wanted his money back for all the lunches he had there. I’m not sure how it panned out. Anchovies are a standard way to add salt in many kitchens. Show me a good Caesar dressing from scratch and I’ll show you an empty can of anchovies. Last Italian restaurant I worked in used pork fat in their marinara. Pork fat makes anything better. They never got sued, but only because nobody found out.

      1. I recall some years ago some vegetarians accused Micky D’s of not serving vegan french fries. They apparently used to fry them in beef tallow. When they switched to vegetable oil they began using beef broth somehow to flavor the fries.
        Micky D came back and said that they never said they were vegan and they were’t changing their fries which are often considered the best fries around. It went away.

  11. so is Butter Face a hate crime now?

    1. I would think that calling a woman “Butter Face” would be considered a “hate crime,” you know, a microaggression against “Body Positivity.”

      The court-ordered sentence would be missionary sex with the aggrieved woman combined with those eyelid pincers from A Clockwork Orange.

  12. Nice try California, but Florida is still the champion.
    Their fascists told a dairy they couldn’t label milk from which the cream had been skimmed “skim milk”.
    Turns out the dairy was one of the ‘natural-grass-no-hormone’ places, and the state required that vitamin A be added to the product before it could be called “skim milk”. Since the producer refused to add stuff to the product, the state was going to go get him.
    Many lawyers got very rich before an appellate judge told the fascists to give it up and go home.

    1. You’re talking about Ocheesee Creamery, LLC v. Putnam. Don’t bury the lede. The regulators lost that one too.

    2. Maryland got both beat but it was the USDA/IRS. South Mountain Creamery after “winning” their fight with the IRS for bundling, in which the IRS froze the SMC’s accounts for otherwise lawful conduct. Then after the “winning”, the USDA got their licks in with the same you must add Vitamins to call it skim milk bullshit. SMC “won” that one as well. Wouldn’t doubt if the CDC descend on them next for not masking cows.

  13. By the way, the The European Vegetarian Union is working on a legal definition of Vegan for labeling:

    The European Vegetarian Union, which has been lobbying for a definition since 2008, uses the following definition when describing vegan food:

    “Vegan foods are not of animal origin and, at no stage of production and processing, has use been made of, or the food been supplemented with, ingredients, processing aids and other substances, whether in processed or unprocessed form, which are of animal origin”

    I’m guessing that once Vegan labeling laws come into effect (and they are coming, because the Vegan organizations are lobbying very hard for them), the Vegan organizations are going to be very strict on what gets labeled as “vegan”.

    1. They can try. But it will be like kosher. You can label anything you want kosher – but those for who it is important know to look for the *private* certification agency mark.

      1. IIRC, one of the singers at Woodstock was saying: “Pass around the Kosher Bacon!”

  14. “No, Your Honor, I was not carrying a gun. This is a Smith & Wesson 9mm coffee creamer dispenser.”

    1. Pumpkin Spice Flavor will win over the Judge and Jury if they’re women.

  15. Who thought it was a good idea to give the government control over marketing?

    Marketing? Shit, you’re attacking one of the few things government is any food for! Settling disputes, which sometimes involve the meaning of words. Words like “dollar”, “spouse”, and “cheese”. They cheated the first one, then the second, and you want them to cheat the third too?

    1. And if you cheat on your spouse with a hooker and a can of Cheese Whiz, is that a judicial jackpot? Asking for all of male yarddog-dom…

  16. So long as they label it as fake cheese and butter, I’m fine. And their labeling seems to provide this. So fine with me.

    However, as a side note, I once picked up some vegan cheddar. I did not read the label. I was a bit miffed as the “vegan” was in very small print. But that’s a separate issue. Don’t try to hide or minimize the “vegan” or the “plant based”.

  17. This cowmouflage butter could be a cash cow. Depends on how much product they moove. If they come out with a coffee creamer version it could be great for decalfinated

    1. You are one great Sacred Cow-Tipper! 🙂

  18. Who thought it was a good idea to give the government control over marketing?

    Well, you know, literally everyone who ever suggested the powers of the state be limited to prevention of the initiation of force and fraud.

    In this case, the state government was overzealous and quite properly lost, but that’s an entirely different thing than suggesting that the government should not be in the business of policing fraud at all.

      1. It sure as shit ain’t cheese, but something stinks.

      2. Er, yeah, thus the “in this case”. In italics for emphasis, even.

        I mean, seriously, man, I wrote exactly two sentences. You couldn’t be bothered to read both of them before replying?

  19. You know, after over 200 years of taxation with representation, I am not sure about giving the government control over anything but the military.

    1. I would not say there’s been any representation.

      Most of my tax goes to the fed and I get to vote for all of 4 out of over 600 who decide how much I’ll payand what they spend it on.

  20. This has got to be one of the weakest, least-principled articles I’ve ever read on Reason.
    The very phrase “vegan butter” offers a perfect foundation for destroying the author’s entire argument.
    The author feels restricting the use of the term “butter” is regulatory overreach. But what about “vegan”?
    Can I sell meat products labelled as “vegan” even though they contain meat?
    If every word is just another meaningless tool for marketing, then using “vegan” to increase the appeal of a meat product is the same as using “butter” to increase the appeal of a non-dairy product.
    The author knows perfectly well that gov’t absolutely does have to establish and enforce packaging/labeling standards, and Rikki is very happy for the State to make sure terms like “vegan” are not misused.
    The article implies support for a principle that, if carried to conclusion, would be awful for all consumers.

    1. Peanut butter has been around for a long time; shea butter less so. If they can use the word “butter” then why not these people? I think the judge realized this fact; that we have been using the “B” word for items which are not dairy butter for a long time. I do not know of anyone who has ever bought this stuff thinking it is butter.

    2. Oh, come on, it’s not like the court is saying: “Why should Hank Rearden be the only one to make Rearden Metal?”

      The term “butter” has been used for non-dairy products since time immemorial and the term is public domain.

  21. This article is very good, I appreciate your article. Quality content, I hope you can share more in the future. wish you good health

  22. I have mixed feeling over this. You have heard of Bait and Switch right. Calling it butter is fine as long as it is marked in a way to insure the public knows it is not BUTTER. Of course in this case it will be in big bright letters that say VEGAN. the question is can I call something anything I want? Can I say Vegan on the packaging when it is not? Can I call pot metal, steel? Men, women? At some point common words are supposed to mean something and Butter comes from the milk of animals.

    1. “Can I call …..Men, women?”

      Can you? Not only can you, in many cases now, you are REQUIRED to do so.

    2. WTF are you going on about? The product labelled vegan butter is fucking vegan butter. No misrepresentation here.

    3. The product plainly says ‘Vegan butter’. That means non dairy butter. I don’t see the confusion? Are there people in the US shopping at Whole Foods who will be confused by this? Not likely.

    4. The key legal question is whether any sizable number of consumers are being mislead. No one owns the language. False or misleading advertising can and are outlawed. Anything else is fair game.

  23. “The company is known for its popular vegan butter made from cashews, coconut oil, and sunflower oil, as well as other high-end alternative products like vegan mozzarella, cream cheese, and cheese wheels—all of which I can attest are very good.”

    To be honest, a few weeks ago I at at a vegan pizza joint in Utah that used their stuff. (It was an easy walk from our rental.)

    The pizza was great, (Their sauce was better than great!) the fake cheese was… conspicuously not real cheese, but it tasted alright. It just didn’t taste like cheese.

    1. I once had a product called Form-Agg, which was a cheese substitute made of casein (which is actually a crude plastic made of milk and vinegar.) The product lived up to it’s name because I said: “AGGGG!” after I tried to eat it.

      Despite my disgust, I had no realistic expectation that it would be exactly like cheese, so I would never run to Big Brother demanding they socially engineer the marketing.

  24. As long as they say vegan on the label, I know to avoid it like the plague.

    Then again …. I tell lesbians that it’s a trans clit.

  25. There is a place in Burbank called “YOGA-URT” which sells a frozen dessert made with cashew and almond milk. They were told by someone not to call it yogurt, lest some yogurt makers make an issue of it. Thus far, no one who teaches yoga has hassled them.

    They could call it “Buttah” or “Buttour” or “Butr”

  26. In other news, the same court determined that “f** you” now means “have a nice day” and “n***er” now means “happy citizen”…

  27. Republican Teedy Rosenfeld and food & drug Czar Harvey Washington Wiley agreed that deadly coercion was altruistic, necessary and good, and that Congress shall pass innumerable laws restricting the freedom of production and trade. It worked. Chinese fentanyl replaced harmless LSD, and the harmless and helpful mescaline Coolidge and Hoover banned is still banned at gunpoint by First Responders™ like Chauvin. Happy now?

  28. The fact that their product says ‘Vegan Butter’ is why they can use the word Butter. Pretty much everyone knows what ‘vegan’ means. If they just said ‘butter’ by itself [one word] they would have lost the suit. But if you go to their product website it’s pretty easy to see ‘Vegan’ written everywhere.

  29. As someone who has litigated trademark and false advertising cases, this is really a simply issue.

    Do a survey. Show people the labels in question, and ask them if iti has any dairy products in it. (You would have to have controls, etc.)

    I would bet that less than 1 % are confused. And that would end any private civil false advertising case.

    Put the state to the same burden of proof. Take a survey. Prove that consumers are confused. Or shut up.

  30. Well, good to know definitions don’t actually matter anymore. I’m going to start marketing sirloin steak as vegan. Sauce for the goose.

    1. It’s like I always say: Meat is just concentrated grain and vegetable matter, and grains and vegetables are just reconstituted meat.

      And everything is “Local” to somebody and everything is “Global” to somebody else.

      And if you didn’t forage it, hunt it, trap it, or fish for it, it is all “Farm-To-Table.” The only quibble is how far away the farm is from you. (Hell, you can even forage, hunt, trap, and fish on a farm as well, so even food by that means can be “Farm-To-Table.”)

      And it doesn’t matter how far your food source is or how many hands have handled it. Even if you got it from your own back yard, you’re supposed to wash your hands; rinse your food; pick off bugs, droppings, rotten spots, unwanted seeds, pits, and imperfections; and clean all food utensils and food surfaces before preparing, cooking, and eating food.

      And if a food is part of the Natural Universe (and there is nothing that isn’t part of the Natural Universe,) then it is both Natural and made of Chemicals all at the same time.

      And if a food is made of Carbon-based matter, it is Organic and the way to tell if it is Organic is to use Dr. “Bones” McCoy’s Tri-Corder off of Star Trek.

      And if it is domesticated by human beings, it is all “Genetically-Modified.” The only difference is whether it is Genetically-Modified by selective breeding or in a Petri Dish or a test tube.

      And if it is derived from private property rights, profitable, and not self-destructive, ultimately, it can be made “Sustainable.” (And as if it needs explaining, this means cannibalism is right out!)

      And “virtue signalling” with food is like playing with your food. It is just not polite!

      And finally, as Singer/Songwriter Nilsson observed in the movie soundtrack for Popeye: “Everything Is Food, Food, Food! Everything Is Food!”

      Wow! That was fun to put to the screen!

  31. Who thought it was a good idea to give the government control over marketing?

    What a silly idea that people who buy “butter” should actually get “butter”!

Please to post comments