Miyoko's Kitchen, a plant-based food manufacturer in California, has sued the state in U.S. district court. The 22-page complaint claims labeling regulations from the California Department of Food and Agriculture and its Milk and Dairy Food Safety Branch violate the company's First Amendment rights.
State regulators sent a letter to Miyoko's in December telling the company to stop using the phrase "100% cruelty and animal free" on its labels and on its website, as well as dairy terms such as "butter" on its vegan plant butter. The letter also told the company to remove the image of a woman hugging a cow from its website.
CEO Miyoko Schinner told the San Francisco Chronicle she found the letter "absurd," and that she believes the state is trying to set a precedent that animals can only be seen as food. Schinner said she decided to take legal action because California's limitations on packaging and marketing could negatively affect the plant-based food industry in general, along with her company. The Chronicle reported the California Department of Food and Agriculture declined to comment.
Miyoko's is no stranger to product labeling litigation. The company was sued in October 2018 by a New York woman claiming consumers were prone to incorrectly assume the company's vegan plant-based butter was the same as conventional dairy-based butter because of its packaging terms.
Schinner said at the time the packaging made it clear the product isn't made from cow's milk and that the wording had been changed to "cultured vegan butter made from plants." That case was dismissed a few months later, but Schinner told Food Navigator she could not comment on settlement terms except to say it was dismissed to the satisfaction of both parties.
This latest complaint is different. Miyoko's is leaning on the First Amendment to challenge the California Department of Food and Agriculture's labeling stance on plant-based products, so the outcome could have wide-ranging impacts on the plant-based industry as a whole.
The department's December 9 letter to the company cites several federal regulations and state codes in requiring product labeling changes. One section states the word "butter" cannot be used on a product unless it is exclusively made with milk or cream or both and contains at least 80% milk fat. The letter also states that images from animal agriculture on Miyoko's website, along with the words "100% dairy and cruelty free," must be removed.
It's not clear whether California has made similar demands of other plant-based manufacturers in the Golden State, but it's possible other impacted companies could join with Miyoko's in mounting a First Amendment challenge.
Other product labeling cases also have relied on free speech arguments, including a lawsuit filed last July by Tofurky and four other plaintiffs challenging Arkansas' new labeling law banning the use of meat-like terms on plant-based products. They won an initial round in December when a federal judge stopped Arkansas from enforcing the law until its constitutionality is decided.
If these lawsuits are not successful, Miyoko's, similar to Tofurky, could be required to invest a lot of time and money in new product packaging. Miyoko's complaint states that California's directives would "hobble" the company by costing it more than $1 million in labeling changes and marketing and keep it from accurately informing consumers about its products.
"The State of California, through officials in the Department of Food and Agriculture, is prohibiting Miyoko’s from engaging in protected speech based on its content and based on the viewpoint expressed through that speech," the complaint alleges.
That language echoes a recent opinion by a Kansas federal judge overturning most of that state's so-called "ag-gag" law criminalizing undercover investigations at factory farms and slaughterhouses. The judge found the 1990 law is unconstitutional because it discriminates against certain speech based on its content.
Whether that approach will pan out for Miyoko's remains to be seen, but the company appears to have the legal backing of Deepak Gupta, founding principal of Gupta Wessler, PLLC, of Washington, D.C. He often argues before the U.S. Supreme Court and has a focus on consumer protection and constitutional law. The other plaintiff's attorney is Alene Anello, staff attorney for the Animal Legal Defense Fund in Berkeley, California.