On June 25, a California federal judge denied a Motion to Dismiss by the California Department of Food and Agriculture (“the Department”) in a case brought by Miyoko’s Kitchen (“Miyoko’s”), a producer of a variety of plant-based, vegan products that are designed to resemble dairy products and are marketed with product names that references dairy analogues, such as “vegan butter” and “vegan cheese.”

As background, Miyoko’s filed suit in February 2020 in response to a December 9, 2019 letter from the Milk and Dairy Foods Safety Branch of the Department. The letter 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.

Miyoko’s filed suit in a bid to prevent California from enforcing its label demands, which the company argued violated their First Amendment rights. Miyoko’s alleged that, based on the Department’s letter, they were forced to develop custom packaging for California and change marketing and packaging materials nationwide at great cost, or risk prosecution. However, California argued that Miyoko’s lawsuit was “not ripe” and that the company lacked standing to sue.

U.S. District Judge Richard Seeborg agreed with Miyoko’s, holding that “Miyoko’s has met its burden of establishing a credible threat of prosecution.” Further, Judge Seeborg stated that “in the First Amendment context, a showing of even a modest risk of enforcement should weigh in favor of a finding of justiciability.” The court is expected to next rule on Miyoko’s Motion for Preliminary Injunction, which would allow the company to maintain its labeling while the case proceeds.