Petaluma-based Miyoko’s Creamery prevails in First Amendment lawsuit centered on advertising

Petaluma-based Miyoko’s Creamery, known for its vegan dairy alternatives, has won the right to use a host of dairy-centric phrases in its advertising after prevailing in a First Amendment lawsuit this week against the California Department of Food and Agriculture.

The lawsuit, filed in February 2020, came in response to state regulators’ attempts to curtail the company’s use of dairy terminology and imagery in advertising, and it pit the upstart dairy disruptor against the state and its $6.4 billion-per-year dairy industry in a fight company leaders say will set precedent for future face-offs.

In a move cheered by the dairy industry, state agriculture officials sought in a Dec. 9, 2019, letter to force the company to cease use of a variety of terms, including “vegan butter,” as well as the company’s use of cows and other dairy imagery on its website, calling the approach deceptive.

But Miyoko’s, represented by the Animal Legal Defense Fund, fought back, securing a preliminary injunction last year and winning a judgment Tuesday from the U.S. District Court in San Francisco that will allow the company to continue using most of the targeted phrases.

“The (state’s) attempt to censor Miyoko’s from accurately describing its products and providing context for their use is a blatant example of agency capture,” Animal Legal Defense Fund Executive Director Stephen Well said, referring to the phenomenon in which an authority works on behalf of industry. “The fact that animal-milk producers fear plant-based competition does not give state agencies the authority to restrict one industry in order to help another.”

The ruling comes less than a week after company officials announced $52 million in new capital, boosting the company’s profile in the $5 billion dairy alternatives market.

Miyoko’s Creamery, established in 2014 and located in Petaluma since 2017, makes a variety of plant-based cheeses, including its cheddar and pepper jack options made with oat milk, a vegan mozzarella and an organic, cashew milk-based artisan cheese wheel. It’s vegan butter offerings represent the company’s bestselling products, helping boost boost the company’s sales by more than 160% from 2018-19 while the company pushes its products out to 30,000 stores nationwide.

The privately owned company doesn’t release its financial performance figures, but company officials have regularly touted expansion efforts since moving to Petaluma.

The success has also drawn scrutiny from traditional dairy producers who have expressed concerns that consumers might mistakenly buy dairy alternatives.

Tawny Tesconi, executive director for the Sonoma County Farm Bureau, said there dairy farmers were appreciative of the state’s stance against Miyoko’s, adding “I’m sure there’s a lot of disappointment out there.”

Tesconi said there is room for plant-based and animal-based foods in Sonoma County and beyond, but she and other industry leaders bristle at what they see as a deceptive and hypocritical attempt to harm the industry.

“I really believe the real mission is to eliminate animal-based agriculture,” Tesconi said. “If they want to say butter and cheese and milk are bad for you, then why are they using those terms in their products? It just seems kind of hypocritical.”

Both the state Department of Food and Agriculture and Miyoko’s sought to pin the case on a 2018 paper centered on how successful consumers were at differentiating between plant-based and dairy-based milk items.

In eight studies conducted by Silke Feltz and Adam Feltz, the authors found “…consumers do not make mistakes indicative of pervasive lack of milk product literacy,” and that the public was able to correctly differentiate between the products 74% to 84% of the time, according to the paper’s abstract.

Apart from his decision to side with the state over Miyoko’s use of the phrase “hormone free,” which isn’t accurate given the presence of plant hormones in some products, Chief U.S. District Judge Richard Seeborg didn’t buy the state’s arguments in the case.

“Quite simply, language evolves,” Seeborg said in the ruling. “Absent anything from the state revealing why old federal food definitions are more faithful indicators of present-day linguistic norms, neither the fact nor the vintage of the federal definition of ‘butter’ counts against Miyoko’s…”

Seeborg ordered the two sides to file a report agreeing to a form of judgment or detailing any remaining issues in the case by Sept. 2.

Company officials cheered the ruling, which they estimate could save Miyoko’s more than $1 million in rebranding and repackaging alone.

“Food is ever-evolving, and so too, should language to reflect how people actually use speech to describe the foods they eat,” Miyoko’s Kitchen Founder and CEO Miyoko Schinner said in a news release heralding the District Court ruling. “We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food.”

Tyler Silvy is editor of the Petaluma Argus-Courier. Reach him at tyler.silvy@arguscourier.com, 707-776-8458, or @tylersilvy on Twitter.