Back in February 2020, Petaluma, Calif.-based Miyoko’s Creamery (Miyoko’s), a manufacturer of dairy alternatives, sued the California Department of Food and Agriculture (CDFA). According to the Animal Legal Defense Fund, the lawsuit was prompted by an enforcement letter from CDFA that ordered the company to stop using terms such as “butter” on its product labels — saying the practice violated FDA labeling regulations.

In the summer 2020 edition of its Regulatory Register, the National Milk Producers Federation (NMPF) notes that the letter also ordered Miyoko’s to remove the terms “lactose-free,” “hormone-free,” “revolutionizing dairy with plants” and “cruelty-free” from its labeling because the product is not a dairy product.

“NMPF understands California’s move to enforce the federal standards of identity after decades of FDA inaction,” NMPF reacts in the above-noted Regulatory Register publication. “Despite NMPF’s constant and consistent requests over several decades for enforcement, plant-based companies have been able to disregard federal regulations due to little pushback from FDA, while dairy companies have followed rules meant to prevent consumer confusion all the time.”

The Animal Legal Defense Fund represented Miyoko’s in its challenge. The lawsuit argued that the CDFA’s enforcement position is an attempt to unconstitutionally censor truthful commercial speech, violating Miyoko’s First Amendment right to free speech. The U.S. District Court for the Northern District of California ultimately agreed, ruling in favor of Miyoko’s.

“The CDFA’s attempt to censor Miyoko’s from accurately describing its products and providing context for their use is a blatant example of agency capture,” says Stephen Wells, executive director of the Animal Legal Defense Fund. “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.”

In a press release, the Animal Legal Defense Fund goes on to say that the dairy industry has long taken the position that terms such as “cultured vegan butter” and “plant-based cheese” on plant-based “dairy” products confuse consumers, “without any evidence to support that claim.”

Let’s set the record straight

Indeed, consumers do not appear to be confused when it comes to differentiating between genuine dairy and its imitators. A 2018 International Food Information Council Foundation survey found that about three-quarters of Americans understand that plant-based “milk” products do not actually contain cow’s milk. And fewer than 10% believe that any of those products contains cow’s milk. (The remainder are unsure.)

However, a good deal of American consumers erroneously do believe dairy alternatives are equal to their genuine dairy counterparts in terms of nutrition. In fact, a 2018 IPSOS survey commissioned by Dairy Management Inc. revealed that the majority of American adults believe that dairy milk and plant-based milk alternatives have the same nutritional content. It also found that 73% of consumers believe that almond-based drinks have as much or more protein per serving as milk — despite the fact that milk has eight times as much protein. That is a problem.

The Animal Legal Defense Fund’s Wells says it’s not fair “to restrict one industry to help another.” Well, it’s not fair for plant-based products to ride on dairy’s coattails — and imply they are nutritionally equal to their dairy counterparts — to find success, either.