Search results for: miyoko

  • On Friday, August 21, 2020, Judge Richard Seeborg at the U.S. District Court for the Northern District of California filed an order granting Miyoko’s Creamery’s (“Miyoko’s”) motion for a preliminary injunction, which blocked the State of California’s attempts to prevent Miyoko’s from using the terms “butter,” “lactose-free,” and “cruelty free” on its vegan products that are made from coconut oil, sunflower oil, and cashew nuts.
  • By way of background, Miyoko’s filed suit in February 2020 to prevent California from enforcing its label demands, which the company argued violated their First Amendment rights.  In its December 9, 2019 enforcement letter, the California Department of Food and Agriculture’s Milk and Dairy Foods Safety Branch outlined numerous purported violations of state and federal law, including the following:
    • The “vegan butter” product does not meet the definition of “butter” at 21 U.S.C. 321a, which requires that a product be made exclusively from milk or cream, or both with or without common salt …. and containing no less than 80 per centum by weight of milkfat. The Department ordered Miyoko’s to remove the word “butter” from the label.
    • Given that the product is not a dairy product, it cannot make claims such as “Lactose Free,” “Hormone Free,” and “Cruelty Free,” which imply that the product is a dairy food without the claimed characteristics. California Food and Agriculture Code 38955. The Department ordered Miyoko’s to revise or remove the claims.
  • In regard to the core claims around “vegan butter,” Judge Seeborg noted that “the state’s showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming.”  Judge Seeborg also stated that while the standard of identity for butter stipulates that butter must contain at least 80% milkfat, the question at issue in this case is whether Miyoko’s use of the word “butter” in close proximity to terms, such as “vegan,” “made from plants,” and “cashew & coconut oil spread” amounts to misleading commercial speech.  Ultimately, the court disagreed that “butter,” “lactose-free,” and “cruelty free” claims were confusing or misleading.
  • Although the motion for preliminary injunction allows Miyoko’s to use the terms discussed above, the court concluded that Miyoko’s cannot use a “hormone-free” claim, as plants contain naturally-occurring hormones.
  • On August 10, 2021, the Northern District Court of California ruled (subscription to Law360 required) that California regulators cannot prevent Miyoko’s Kitchen, a vegan dairy-alternative company, from using terms like “butter,” “lactose free,” “cruelty free,” and “revolutionizing dairy with plants” on its labels.
  • By way of background, in December 2019, Miyoko’s Kitchen received a letter of complaint from the California Department of Food and Agriculture that ordered the company to stop calling its products “butter” or claiming they are “cruelty and animal free.” The vegan dairy company then sued the state in February 2020, alleging the state is violating its First Amendment rights.
  • As part of its defense, California presented a 2018 study that found 26% of consumers misidentified plant-based cheese products, but U.S. District Judge Richard Seeborg noted that 19% of its participants were also confused by animal-based cheeses.
  • The court ruled in favor of the California Department of Food and Agriculture with respect to the “hormone free” claim, stating that Miyoko’s cannot make this claim because its products contain plant hormones.  Overall, the case represents a victory for the dairy-alternative industry, which faces challenges on nomenclature and claims in many states.
  • In a case that we have previously blogged about, the State of California asked the court to grant its motion for summary judgment against Mikoyo’s claims that the California Department of Agriculture had violated the First Amendment in its enforcement actions against Mikoyo which, among other things, would prevent Miyoko’s plant-based product as being marketed as a “butter.” Also at issue were the marketing of the product as “Hormone Free,” Lactose Free,” “Cruelty Free,” and “Revolutionizing Dairy with Plants.”
  • On each of the issues, California argued that the actions of the California Department of Agriculture were taken to prevent false or misleading speech which is not protected by the First Amendment. In the alternative, California argued that its actions directly advanced a substantial interest in a narrowly tailored manner and therefore satisfied Central Hudson’s intermediate scrutiny framework. In particular, California argued that it was merely enforcing the federal standards of identity which were established as a uniform scheme intended to prevent consumer confusion. Indeed, California noted that federal preemption of state labeling requirements generally prevented it from enforcing its own set of rules.
  • California’s motion argued that consumers were confused by the marketing of similar plant-based products, and that the level of consumer confusion was significant enough to satisfy the Central Hudson test when applied to the restrictions at issue (i.e., the labeling of the product as “butter,” and the other marketing statements traditionally associated with dairy products). Importantly, its motion referenced a study which reported that 26% of consumers failed to recognize that a vegan cream cheese product, which was also labeled with dairy-associated statements like “lactose free,” was plant-based. As to the “Hormone Free” claim, California argued that because the plants from which Mikoyo’s product was sourced contained endogenous hormones, the statement was demonstrably false. In contrast, Mikoyo had argued that the statement was not misleading because it only highlighted that the product did not contain hormones injected into cows. Finally, California also argued that a claim relating to an image of a person hugging a cow on Mikoyo’s website was moot because the Department acknowledged that it misinterpreted the statute and therefore would not take action to prevent the image being displayed on Mikoyo’s website.
  • Keller and Heckman will continue to monitor and report on this case and other developments in the labeling of plant-based dairy alternatives.
  • On June 25, a California federal judge denied a Motion to Dismiss by the California Department of Food and Agriculture (“the Department”) in a case brought by Miyoko’s Kitchen (“Miyoko’s”), a producer of a variety of plant-based, vegan products that are designed to resemble dairy products and are marketed with product names that references dairy analogues, such as “vegan butter” and “vegan cheese.”
  • As background, Miyoko’s filed suit in February 2020 in response to a December 9, 2019 letter from the Milk and Dairy Foods Safety Branch of the Department. The letter outlined numerous purported violations of state and federal law, including the following:
    • The “vegan butter” product does not meet the definition of “butter” at 21 U.S.C. 321a, which requires that a product be made exclusively from milk or cream, or both with or without common salt …. and containing no less than 80 per centum by weight of milkfat. The Department ordered Miyoko’s to remove the word “butter” from the label.
    • Given that the product is not a dairy product, it cannot make claims such as “Lactose Free,” “Hormone Free,” and “Cruelty Free,” which imply that the product is a dairy food without the claimed characteristics. California Food and Agriculture Code 38955. The Department ordered Miyoko’s to revise or remove the claims.
  • Miyoko’s filed suit in a bid to prevent California from enforcing its label demands, which the company argued violated their First Amendment rights. Miyoko’s alleged that, based on the Department’s letter, they were forced to develop custom packaging for California and change marketing and packaging materials nationwide at great cost, or risk prosecution. However, California argued that Miyoko’s lawsuit was “not ripe” and that the company lacked standing to sue.
  • U.S. District Judge Richard Seeborg agreed with Miyoko’s, holding that “Miyoko’s has met its burden of establishing a credible threat of prosecution.” Further, Judge Seeborg stated that “in the First Amendment context, a showing of even a modest risk of enforcement should weigh in favor of a finding of justiciability.” The court is expected to next rule on Miyoko’s Motion for Preliminary Injunction, which would allow the company to maintain its labeling while the case proceeds.