U.S. courts seem to recognize plant-based companies’ constitutional right to use meat and dairy advertising terms.
Is it constitutional to label a vegan product as “butter?” You butter believe it—or, at least, that is how several U.S. courts have responded in ongoing cases.
The U.S. Food and Drug Administration (FDA) places federal requirements on food product labels, but FDA does not pre-approve labels before they enter the market. Although states often rely on FDA to clarify labeling standards, some states institute standards stricter than FDA’s federal ones.
For example, California’s false-advertising law, which may be the strictest in the country, imposes a burden on companies to show that a label is not likely to deceive members of the public. As a result, companies must comply proactively with both federal and state laws, and vegan food companies and advocates, in particular, have often found themselves in court arguing that state law restricts their labeling options beyond the extent allowed by federal constitutional law.
In the most recent case as of this writing, a federal trial court has grappled with a vegan food company’s claim that the First Amendment protects its use of the term “butter” against interference by California regulators. Vegan food companies have viewed an early ruling in the case as a victory “with significant industry-wide implications.”
The case originated in a warning letter that the California Department of Food and Agriculture sent to Miyoko’s Kitchen in 2019, advising the vegan food company that its butter labels were misbranded under FDA requirements and the California Food and Agriculture Code. This state code restricts the use of dairy-based language and imagery on “imitation” dairy product labels. In turn, Miyoko’s Kitchen sued the state, arguing that the Department sought to chill its free speech and had “bowed to pressure” from dairy industry lobbyists. In September, the court barred the Department from taking any enforcement action against the company’s use of the terms “butter,” “lactose free,” or “cruelty free” on its labels.
Although the ruling was only preliminary and the case will not proceed to a full trial until 2021, the court’s decision to protect Miyoko’s Kitchen’s use of butter terminology sparked both excitement and frustration. The Animal Legal Defense Fund celebrated the decision for its implications for smaller vegan companies, which rely on terms such as “butter” and “milk” to market their products’ uses to consumers.
But other commentators, including the National Milk Producers Federation, complain that the “butter” sold by plant-based companies is simply “margarine with better marketing.” They claim that FDA has a responsibility to stop this “rampant margarine mislabeling.” After all, most vegan butter products fit neatly into FDA’s definition of margarine.
The Miyoko’s Kitchen lawsuit is only the latest battle in U.S. “butter wars,” which have raged for over a century between the dairy industry and producers of dairy alternatives such as margarine. Historically, six dairy-dominated states “banned margarine outright,” multiple states imposed extra taxes on butter alternatives, and 32 states regulated the color of margarine, forcing producers to dye it an unappetizing pink, red, brown, or black color rather than “butter yellow.”
The U.S. Supreme Court struck down the “pink laws” in 1898, and the last state to maintain a ban on yellow margarine repealed that law in 1967. Still, the dairy and meat industries—and the states that host them—are eager to regulate against vegan companies’ use of terms such as “butter” and “burger.” In 2019, for example, Mississippi passed a law prohibiting the use of meat product terms to describe plant-based foods.
But plant-based companies have started fighting back against such restrictions. The Plant Based Foods Association and the Institute for Justice immediately challenged the Mississippi law in court. The groups weaponized the First Amendment to argue that companies have a protected right to use the terms “veggie burger” and “vegan hot dog” on their labels, as these phrases do not mislead consumers. The groups also suggested that if companies were forced to change their labels, consumer confusion would increase because alternative terms, such as “veggie discs” or “vegetable protein tubes,” are not very clear.
The lawsuit prompted Mississippi to replace the law less than four months after it became effective. A new proposed Mississippi state regulation specifies that plant-based meat products will not be considered mislabeled as long as their labels include an adjective such as “meatless,” “plant-based,” or “vegan.”
In a similar example, a federal trial court blocked the state of Arkansas from enforcing a law that prohibits plant-based meat producers from using the word “meat” and related terms. In 2019, the American Civil Liberties Union (ACLU) and the Good Food Institute sued the state, claiming that the law violated a vegan company’s rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. The court rejected the state’s argument that plant-based meat product labels are misleading even if they include “ample terminology” indicating their “vegan or vegetarian nature.” The court also blocked the law from taking effect while the case proceeded to trial.
The outcomes of the Miyoko’s Kitchen and ACLU lawsuits may impact the growth of the plant-based foods industry, which is expanding quickly. The Good Food Institute values the U.S. plant-based butter industry at $198 million, a figure that presently far outpaces the growth of the dairy butter industry. Between 2018 and 2020, U.S. sales of plant-based foods surged by 29 percent, and a study projects that the worldwide plant-based food sector will be worth $74.2 billion by 2027. But as the court noted in the Miyoko’s Kitchen case, each vegan company dealing with labeling disputes may have to spend millions of dollars if regulations or court decisions require label changes.
Lawsuits concerning plant-based products may also be relevant to the coronavirus crisis. Due to COVID-19’s disruption of supply chains, some milk intended for butter production is being dumped. The Good Food Institute claims that the supply chains for vegan alternatives are better poised to respond to pandemic conditions, as they are less vulnerable to disruptions typical to animal agriculture. Although FDA’s relaxation of some labeling rules during COVID-19 has increased plant-based products’ access to the market, court decisions requiring label changes could reverse this trend.
By creating clearer regulations as to the labeling of vegan products, FDA could melt away many of the conflicts between plant-based food companies, state regulators, and lobbying groups. But given FDA’s “recent budget cuts and chronic underfunding,” as well as the demands of the COVID-19 crisis, FDA priorities seem to lie elsewhere. In the agency’s absence, the U.S. judicial system seems poised to continue cutting through these regulatory issues like a hot knife through butter—or vegan butter, as it may be called.
