GOT MILK?

Soy milk is at the epicenter of a global free-speech debate

It’s not just an unassuming carton in the supermarket dairy aisle. At least, not anymore.

Soy milk has been available since 1947 and is currently in high demand, bringing in about $300 million per year. Despite its popularity—or perhaps because of it—the beverage has also found itself at the center of a global debate over freedom of speech.

Traditional dairy companies are arguing that the soy industry has inappropriately coopted terminologies such as “milk” to sell products, and that in doing so, it’s confusing consumers. The debate is reaching a fever pitch as cow-milk peddlers—especially in the US—find themselves in the sales doldrums while simultaneously having to fight off consumer interest in vegan, plant-based food companies looking to take more of their market share.

As a result of sour dairy-company profits, the soyfood industry—worth about $5 billion—is increasingly finding itself in courtrooms around the world. At its core, these cases boil down to the issue of free speech, and whether a beverage made by a commercial enterprise—such as a soy milk company—can legally describe itself as “milk.”

When is soy milk not milk?

Whether a soy company can market its liquid product as milk depends on where you are in the world. That’s because it’s one thing to consider individual people’s freedom of speech, but when it comes to businesses, governments take different positions globally. Those differences have created a legal minefield for soy milk.

In the US, the right to free speech includes protections for commercial speech, which is speech done on behalf of a company for the intent of making a profit. In places such as Canada and the European Union, it is generally upheld as “the freedom of expression,” which includes the right to hold opinions and impart ideas without interference by the government. When it comes to how that applies to corporations, the European Commission, the EU’s ruling body, commits to “promoting best practices by companies.”

In Europe, this sort of language leaves a lot of wiggle room in the grey area of commercial speech. “I think the American acceptance of commercial speech as a form of speech differentiates us from other countries,” says Roy Gutterman, the director of Syracuse University’s Tully Center for Free Speech. “Other countries have way more room to regulate. We leave less room for the government to decide when it comes to speech issues.”

Competing courts

The different legal attitudes toward freedom of speech mean that in the US, courts generally side with plant-based food companies, and in Europe, courts are ruling against them.

In June, the European Court of Justice heard a case in which a company called TofuTown was challenged by a German consumer-protection group. The court ultimately ruled that plant-based foods in the EU cannot be sold as milk, butter, and cheese because their chief ingredient isn’t derived from an animal. Consumers could be confused, the court said. This ruling stands even if those products are clearly marketed as animal-free, such as TofuTown’s products “soyatoo tofu butter” and “veggie cheese.”

In the same month, a US court heard a similar case against WhiteWave Foods, which produces Silk and So Delicious soy, almond, coconut, and cashew products, such as non-dairy milk, creamer, yoghurt, and ice-cream alternatives. The federal district court in California dismissed the issue outright, saying there was no consumer confusion. The court added that the challengers “essentially allege that a reasonable consumer would view the terms ‘soy milk’ and ‘almond milk,’ disregard the first words in the names, and assume that the beverages came from cows.” One month before, another federal court in California ruled in favor of almond-milk maker Blue Diamond Growers, concluding that the challenger failed to “plausibly allege that a reasonable consumer is likely to be deceived.”

Still, the laws in Europe aren’t totally cut-and-dry. In 2010, the European Commission (pdf) oddly included coconut milk, ice cream, cocoa butter, and peanut butter on a list of products that are protected. This patchwork of different rules across the globe makes it especially difficult for companies looking to expand business, as discrepancies across borders can cause prickly problems for food companies looking to get their products in more supermarkets.

“For an American soy-milk maker that wants to expand into Europe, this would present a serious policy challenge,” says Jessica Almy, director of policy at the Good Food Institute (GFI), a Washington-based group that supports and lobbies on behalf of vegan and vegetarian food companies. “Where there’s no consumer confusion, they can’t be restricting what goes on the label.” For that reason, GFI is looking for ways to try and reshape regulations in Europe to clear a path for products such as soy milk.

The future of food

The results of these legal skirmishes will stock the fridge for a food-production future that might be less reliant on animal-based agriculture. For example, new food-technology companies perfecting lab-made meats and acellular milk will be watching these battles closely to see how they will be able to market their products. In the global marketplace, these kinds of companies are still currently tiny players with big ambitions. But if they can’t jump the freedom-of-speech hurdle, there will be serious roadblocks to cracking into big markets around the world.

“This sounds like it’s a cutting edge issue that’s going to be gaining some publicity and notoriety as it develops,” Gutterman says.


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