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.

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