Vegan butter wins again

Miyoko's Kitchen v. Ross, No. 20-cv-00893-RS (N.D. Cal. Aug. 10, 2021)

Preliminary injunction discussed here; now it’s summary judgment time. The state is allowed to regulate “hormone free” on Miyoko’s “vegan butter,” but Miyoko’s is allowed to use the words/phrases “butter,” “lactose free,” “cruelty free,” and “revolutionizing dairy with plants.” The state’s initial attempt to regulate Miyoko’s website (which had images of cows), not just its label, was concededly beyond its statutory authority and now that part of the case is moot.

front of European Style Cultured Vegan Butter from Miyoko's Creamery

side: the Hormone Free claim must go

back: "revolutionizing dairy with plants"

The key piece of evidence was a 2018 study by Silke Feltz and Adam Feltz, “Consumer Accuracy at Identifying Plant-based and Dairy-based Milk Items.” It didn’t involve “vegan butter,” but studied what happened when producers combined dairy signifiers (e.g., “cheese” and “milk”) with dairy-disclaiming language (e.g., “dairy free”). It indicates, in relevant part, that the public “accurately identifie[s] the source of animal-based milk products 84% of the time, plant-based milk-products 88% of the time, animal-based cheese products 81% of the time, and plant-based cheese products 74% of the time.”

This study could not justify the “heavy” burden imposed by Central Hudson on the state’s attempt to bar the use of these terms (except for “hormone free”).

Hormone free: Miyoko’s “vegan butter” product contains naturally occurring plant hormones;

“hormone free” is thus irrefutably false.

This was the state’s only victory.

It’s true that federal dairy and fat-content requirements for “butter” exclude Miyoko’s “vegan butter.” But Central Hudson doesn’t protect “only what the government leaves undefined.” Even the fact that this definition had been unchallenged for 90 years wasn’t important; the court didn’t agree that it was therefore “especially reflective of what consumers understand ‘butter’ to mean.” Indeed, the court thought that it defied “common sense” to think that consumers’ understanding of “butter” had been shaped by 90 years of seeing the term on its own applied only to dairy products. The state was required to provide “more faithful indicators of present-day linguistic norms,” and it didn’t.

The Feltz study didn’t help either. True, a confusion rate of 26% for plant-based cheese products was “solid evidence” that using a dairy product name/dairy-associated statements on a dairy-alternative product could be confusing. But 19% were also confused by animal-based cheeses. This modest difference didn’t suffice to make “vegan butter” inherently misleading.

Footnote of interest to TM folks: The state argued that, because “the Lanham Act is constitutional,” and because “a handful” of federal trademark plaintiffs have secured injunctions with “survey results where 15% of customers” expressed confusion, the Feltz study should be given strong pro-state weight. But those cases provided no justification for assigning “strong First Amendment significance” to the Feltz’s study’s 26% result (especially given that a 15% threshold would “bode ill for ‘milk’ and ‘cheese’ when used to market dairy products”). [I do note that the concept of “net” confusion might help everyone here. Also: the day is coming when courts in TM cases will note that they have not really done Central Hudson balancing like this, especially when they are dealing with low but nonzero net confusion results.]

Nor did the state show that is regulation served a substantial interest in avoiding customer confusion. And having a “consistent scheme” for the regulation of food labeling wasn’t enough of an interest, at least at this level of generality. “[T]he First Amendment demands proof that restricting Miyoko’s commercial speech will promote the State’s asserted interest.” Result: Sure, you can have standards of identity for food … as long as no one in the industry challenges them.