Vegan Food Producer Sues, Saying Labeling Law Violates Its First Amendment Rights

Is it meat or is it "meat"?

That question is arising with increasing regularity in legal squabbles as the plant-based food industry continues to expand its market share and the traditional food industry fights back.

In the latest instance, on Sept. 16, a Chicago-based food brand and plant-based food trade group filed a federal lawsuit against the state of Oklahoma, claiming that a new labeling law in that state discriminates against them.

The law, the result of lobbying by the meat industry, requires makers of plant-based food products in the state to display qualifiers such as “vegan" or “plant-based" that are the same print size and prominence as the product name.

The plaintiffs, Upton's Naturals Co. and the Plant Based Foods Association, contend that this requirement “treats Plaintiff's healthy products like cigarettes or alcohol." They also say it would require costly repackaging, which they argue is unnecessary because Upton's products are already clearly marked as plant-based.

The law is set to go into effect Nov. 1, and the plaintiffs are seeking an injunction to halt it.

Expanding Market Share for Plant-Based Meat

As you may be aware, meatless meat is becoming increasingly popular. The market for plant-based foods (including more than just meatless meat) reached the $5-billion mark last year, the second consecutive year when its growth rate exceeded 11%. At the same time, the total retail food market in the U.S. expanded at a much slower pace, by 2% per year.

The desire for meatless burgers in fast-food restaurants was so great that the makers of the Impossible Burger and the Beyond Meat burger were often unable to meet the demand of fast-food restaurants who were in turn trying to meet customer demand.

Then, after the coronavirus pandemic struck earlier this year and some slaughterhouses closed due to clusters of COVID-19 outbreaks, plant-based meats grew ever more attractive to consumers.

The Traditional Meat Industry Fights Back

While more and more people are finding the taste – and perhaps the lighter environmental impact – of plant-based meat to their liking, the traditional meat industry doesn't consider it appetizing in the least.

On the national level, U.S. Reps. Roger Marshall (R-Kansas) and Anthony Brindisi (D-New York) have introduced a bill, the Real MEAT Act, that is strongly backed by traditional meat producers. That bill, introduced last October, would require plant-based meat packaging to prominently feature the word “imitation," along with “a statement that clearly indicates the product is not derived from or does not contain meat." The bill remains in committee.

In 2018, Missouri became the first state to pass a law restricting use of the term “meat," saying it could only be used to describe “harvested production livestock or poultry."

Several other states have followed suit. But after passing these restrictive meat-labeling laws, some have softened a bit.

Missouri was one of them. After its passage of the law, the state's Department of Agriculture issued a memorandum that took a step back, saying that the meat terms could be used if qualifiers like “plant based" or “lab grown" were prominently displayed.

In Mississippi, a lawsuit from Upton's Foods and the Plant Based Foods Association (again) prompted the state to ease the restrictions it put into place in July 2019 when it prohibited plant-based food makers from using words like “burger" or “hot dog" in describing their products.

In Arkansas, several plaintiffs (including the Civil Liberties Union and the Animal Legal Defense Fund) challenged a new, and even more restrictive, law there. In addition to prohibiting meat terminology by plant-based food makers, it also stated that almond milk couldn't be called milk and cauliflower rice couldn't be called rice. In December, a federal judge in Little Rock halted enforcement of the law.

What Is the Federal Position?

The Food and Drug Administration has not issued regulation or guidance on the labeling of plant-based meat, but is in the process of reviewing its decades-old “food standards," which could take years.

A recent article by law student Lexi Pitz in the Minnesota Law Review concluded that, in the meantime, courts should strike down all state efforts to prohibit labeling of plant-based food as “meat" because they run afoul of the First Amendment.

So, what then? Pitz argues that in the absence of revised food standards, the FDA still has control over labeling under the misbranding provisions of the Food, Drug and Cosmetics Act, which would appear to allow the labeling of alternative meat products as “meat" or “burger" if the labels contain the fact that they are plant-based.

Meanwhile, Pitz proposes a simple solution that could simplify matters for consumers and producers alike: Creation of a universally recognized logo along with a disclaimer that “this is not meat." That way, producers could use familiar terms like “burger" and “hot dog" and consumers would know what they're getting.

At least it's a thought that regulators might consider sinking their teeth into.

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• Can Food Grown Without Soil Be 'Organic'? (FindLaw's Legally Weird)