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Miyoko’s Creamery Wins Right to Use the Term “Vegan Butter”

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.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 240

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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