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The FDA Should Regulate to End the Plant-Based Meat Labeling Controversy  - Megan Silverman

August 19, 2020

                   The FDA Should Regulate to End the Plant-Based Meat Labeling Controversy 

                                           Megan Silverman - LLM Student

Plant-based meat’s popularity is skyrocketing. Dollar sales of plant-based meat in the U.S. grew 18% in 2019 and 38% over the 2017 to 2019 time period.[1] While plant-based meat accounted for just 1% of all dollar sales for retail meat in 2019, the plant-based meat market is similar to that of plant-based milk in its early stages of speedy growth.[2] As of the end of 2019, plant-based milk accounted for 14% of all dollar sales for retail milk with over 40% of U.S. households purchasing it.[3] The plant-based meat market has the potential to reach or even surpass that of plant-based milks, which is an opportunity worth $12 billion or potentially even more if market trends continue towards increased consumption of plant-based products.[4] The rise in the popularity of plant-based meat products is important, because the less meat and dairy we eat the better our ability to control the effects of climate change. Moving from current meat and dairy heavy diets to a diet that excludes animal products has transformative potential by reducing the amount of land required to feed us by 76%, greenhouse gas emissions by 49%, and freshwater withdrawals by 19% based on a 2010 reference year.[5] Although the likelihood of everyone across the globe switching to a plant-based diet is not very high, these drastic reductions in land and water use and greenhouse gas emissions demonstrate the importance of making changes in our eating habits in order to combat climate change.

As plant-based meat rises in popularity, not everyone is happy with the increased competition. In Mississippi and nearly thirty other states, the meat lobby has advocated for laws that restrict how plant-based meats may be labeled.[6] In Mississippi, these efforts took the form of Senate Bill 2922, which was lobbied for by the North American Meat Association and the Mississippi Cattlemen’s Association as part of the National Cattlemen’s Beef Association’s top 2019 policy priority to battle “false and deceptive marketing” of what the group calls “fake meat.”[7] The new law prohibits producers of plant-based meat alternatives from marketing their foods using words signifying any kind of meat or meat product.[8] This means that even common meat signifying terms such as “veggie burgers,” “hot dogs,” “chorizo,” and “jerky” are banned.

In Arkansas, Act 501 took effect on July 24, 2019 and prohibits representing an agricultural product as a meat product when the product is not directly harvested from livestock, poultry, or cervids; representing an agricultural product as beef or a beef product when the agricultural product is not derived from a domesticated bovine; representing an agricultural product as pork or a pork product when the agricultural product is not derived from a domesticated swine; or utilizing a term that is the same as or similar to a term that has been used or defined historically in reference to a specific agricultural product.[9] If Act 501 were to survive legal challenges, the results would be similar to those in Mississippi and plant-based meat producers could not use the words “veggie burger”, “deli slices”, or “slow roasted chik’n” amongst others on their packaging. The Act 501 law is especially broad given its prohibition on using any term “that has been used or defined historically in reference to a specific agricultural product”, which is why labeling plant-based meat as “deli slices” would likely be off the table.

The push-back from meat interests is not limited to states. In October 2019 the REAL Meat Act was introduced into the House of Representatives, followed by the Senate in December. The REAL Meat Act, advocated for in part by the National Cattlemen’s Beef Association, would amend the FDA Act to require the word “imitation” immediately before the name of the plant-based meat food product along with a statement that the product is not derived from or does not contain any meat.[10]

The advocates for the plant-based meat labeling laws and the plant-based meat companies fighting them have both raised many meaty legal issues. The states and legislators that have advocated for the labeling laws on plant-based meat products claim that they are necessary to deter deceptive marketing and advertising that confuses consumers into purchasing meat that is not animal-derived. They feel that without the labeling laws the consumers will not be able to differentiate between animal-derived and plant-based meats. In contrast, the plant-based meat companies argue that the meat labeling laws introduced into the states, like Mississippi and Arkansas, violate their First Amendment rights to engage in non-misleading speech. The plant-based meat companies argue that the labeling laws are a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products, does nothing to protect the public from potentially misleading information, and creates consumer confusion where none existed before in order to impede competition.

Bans like those passed in Mississippi and Arkansas are devastating for companies making plant-based meat alternatives. To continue selling their foods in Mississippi and Arkansas, they would be forced to design and print special labels just for those markets, without the words consumers are looking for when they shop for meat alternatives. This would be extremely costly, burdensome and would likely confuse consumers.

A trade group, Plant Based Food Association (PBFA), and Upton’s Naturals, a plant-based meat alternative producer, sued the state of Mississippi to protect the First Amendment free speech rights of plant-based companies. In response to the lawsuit, the Mississippi Department of Agriculture withdrew Senate Bill 2922 and replaced it with a new regulation on November 6, 2019 in a settlement with PBFA.[11] Now in Mississippi, plant-based foods will not be considered to be labeled as a “meat” or “meat food product” if their label also describes the food as: “meat-free,” “meatless,” “plant-based,” “vegetarian,” “vegan,” or uses any other comparable terms.[12] Thus, “veggie burger” labeling lives to see another day!

Another win for the plant-based meat companies occurred in Arkansas, where a federal court issued an injunction against the use of Arkansas’ Act 501. When Tofurky, a plant-based meat company, sued the Director of Arkansas Bureau of Standards, the Federal District Court for the Eastern District of Arkansas concluded that the mere use of a word often used in relation to animal-based meats does not make use of that word in a different context inherently misleading.[13] Arkansas argued that Tofurky’s labels for its plant-based products are inherently misleading because they use the names and descriptors of traditional meat items but do not actually include the product they invoke.[14] The federal court analyzed seven Tofurky labels ranging from “deli slices” to “hot dogs”, and after doing so, rejected the state’s position that Tofurky’s labels were inherently misleading.[15] The court surmised that since the labels also make disclosures to inform consumers as to the plant-based nature of the products contained within, they are not inherently misleading.[16] Additionally, the court thought that the state’s position that consumers would be confused by Tofurky’s labels was absurd, since that would force the court to assume a reasonable consumer would disregard all of the other words found on the label.[17] The court also reviewed Act 501’s “Definitions” section, which defined beef, livestock, meat, pork, and poultry in a manner that excluded Tofurky’s plant-based products.[18] Even though the state defined these terms, the court determined that the definitions do not serve as trademarks on these terms.[19] The Arkansas court analogized the facts of the Tofurky case to those in Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017), where the plaintiffs’ use of the term “skim milk” did not align with the state’s definition and the court found that any use of the term inconsistent with the state’s preferred definition is not automatically inherently misleading.[20] As in Ocheesee, the court ruled that while Tofurky’s use of the contested terms deviates from the state’s definitions, this does not render Tofurky’s speech inherently misleading.[21] As a result of this analysis, the court concluded that Tofurky is likely to prevail on its arguments that its labeling is neither unlawful or inherently misleading and warrants First Amendment protection.[22]

While the plant-based meat companies have been seeing some wins regarding their free speech claims in state courts, the meat lobbyists have been working diligently to pass federal legislation to stifle their competition. As mentioned earlier, the REAL Meat Act pending in the House of Representatives and the Senate, would require the word “imitation” immediately before the name of the plant-based meat food product.[23] If passed, this labeling standard would be unfair to plant-based meat companies and if challenged in court it would likely not stand up to First Amendment challenges. Although the Supreme Court in Glickman v. Wileman Bros. & Elliott, Inc. held that the requirement that California tree fruit growers finance generic advertisement does not violate the First Amendment, it did so in part because the requirement did not compel anyone to engage in actual speech.[24] Forcing plant-based companies to incorporate the word “imitation” on their labels of meat alternative products would be akin to requiring them to use their own property to convey an antagonistic ideological message, which the Glickman court expressly disavowed.[25] When used as an adjective, “imitation” has a negative connotation and is defined by Merriam-Webster as: resembling something else that is usually genuine and of better quality: not real.[26] Plant-based meat alternative companies should not be forced to include wording that is inherently negative on their product labels and the REAL Meat Act would likely not survive First Amendment challenges given the Supreme Court’s commercial compelled speech precedents. Additionally, even if the REAL Meat Act was not treated as compelled commercial speech under the First Amendment, it would still likely fail prong four of the Central Hudson commercial speech test if challenged.[27] Under prong four of the Supreme Court’s commercial speech analysis in Central Hudson, the speech restriction cannot be more extensive than necessary to serve the state’s interest.[28] Rather than prohibiting plant-based meat companies from using names and descriptors of traditional meat items or forcing plant-based meat companies to include the word “imitation” on their labels, the federal bill could comply with the First Amendment’s less restrictive and more precise means requirement by instead requiring more prominent disclosures of the vegan nature of plant-based products, a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose. Considering the abundance of less restrictive and more precise labeling options for plant-based meat products, if passed into law, the Real Meat Act would likely be invalidated as not satisfying prong four of the Central Hudson test, because there are alternatives to the regulation that directly advance the government’s interest in a manner less intrusive to the plant-based companies’ First Amendment commercial speech rights.[29]

In light of all of the state litigation and federal controversy over how to properly label plant-based meats in order to not mislead consumers, the federal government should take regulatory action to resolve the issue once and for all. The regulations developed within the Mississippi settlement are a good compromise as a means of dealing with the meat labeling controversy. The regulations, after removal of references to the Mississippi code, are as follows:

Labeling of Plant-Based Foods

Labeling Requirements:

  1. A plant-based food product label shall not be false or misleading.
  2. A plant-based food product shall not be labeled as a “meat” or “meat food product”. For purposes of this section, a plant-based food product will not be considered to be labeled as a “meat” or “meat food product” if one or more of the following terms, or a comparable qualifier, is prominently displayed on the front of the package: “meat free,” “meatless,” “plant-based,” “veggie-based,” “made from plants,” “vegetarian,” or “vegan.”
  3. A plant-based food product label that does not contain one or more of the terms in subpart (2) of this section, or a comparable qualifier, may be subject to further examination by the Commissioner.[30]

First and foremost, this form of plant-based meat labeling regulation protects consumers by allowing them to make informed purchasing decisions. With the revised labeling regulation, consumers will know whether a product is meat-free in addition to knowing how it is supposed to taste, smell, and appear by references to common food products. The settlement is also fair to both plant-based meat producers and the meat industry. With labels describing plant-based meat alternative products as “meat-free” or “plant-based”, it is difficult for the meat industry to argue that plant-based meat alternative producers are trying to trick meat-eaters into accidentally purchasing their products. Instead, plant-based companies are highlighting the fact that their products might be similar to meat-based products, but do not contain any actual animal components. Additionally, the settlement protects the First Amendment rights of plant-based companies by allowing them to accurately describe the flavor and texture of their products in terms familiar to consumers while not compelling them to use their own property to convey an antagonistic ideological message, such as forcing them to include “imitation” on their labels. The settlement is also consistent with commercial speech protections under the First Amendment, because it is narrowly tailored and precisely achieves the objective of ensuring that consumers are informed about the nature of the meat alternative product that they are considering purchasing. Importantly, the regulations also provide for discretion for the regulating body to examine plant-based labels that do not contain the requisite qualifiers to determine if further examination is required.

The Food and Drug Administration (FDA) should federalize the Mississippi settlement regulations, which is in line with the labeling standards proposed by the PBFA for its members to follow when labeling meat alternative products.[31] By federalizing the meat alternative labeling standard, the FDA will resolve this hotly disputed issue throughout all fifty states. This will save taxpayers money, the judiciary’s time, and will pave the way for everyone to focus on the real issues facing the world today. The momentum is trending towards the rejection of the plant-based meat labeling standards lobbied for by the meat industry as demonstrated by the Mississippi settlement and the federal court’s block on the state of Arkansas from enforcing its meat label censorship law.[32]

The FDA has power to federalize the Mississippi settlement standard under Title 21 USC Section 341: Definitions and standards for food. Section 341 provides:

Whenever in the judgment of the Secretary such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, or reasonable standards of fill of container.[33]

Consumers have the right to know how the plant-based meat alternative product they are purchasing is supposed to taste and appear in order to make informed buying decisions. Without the ability to label plant-based meat alternatives as what they are, such as plant-based sausage or veggie sausage, consumers’ best interests will not be served. Because of the ongoing controversy, the FDA should step in to promote fair dealing with respect to plant-based meat alternative products by creating regulations that outline how plant-based meat alternatives should be labeled. Once the FDA creates plant-based meat regulations, the labeling controversy will be resolved, because the federal labeling requirements will preempt conflicting state standards and laws, plant-based meat companies will know how to properly label their food, and the roadblocks will be cleared for plant-based meat companies to grow and expand like plant-based milk companies have done. Going forward, the growth of the plant-based food industry is extremely important, because it will help fight climate change. Given this, we should do all we can to support the plant-based food industry and creating federal regulations to provide clarity for the industry will be a good first step.

[1] The Good Food Institute, Plant-Based Market Overview, Plant-Based Meat Market, December 29, 2019, https://www.gfi.org/marketresearch

[2] Id.

[3] Id.

[4] Id.

[5] Poore, J. and Nemecek, T., Reducing food’s environmental impact through producers and consumers, Mitigation through consumers, February 22, 2019, https://josephpoore.com/Science%20360%206392%20987%20-%20Accepted%20Manuscript.pdf

[6] Siegner, Cathy, Plant-based plaintiffs drop lawsuit challenging Mississippi’s labeling law, Food Dive, November 8, 2019, https://www.fooddive.com/news/plant-based-plaintiffs-drop-lawsuit-challenging-mississippis-labeling-law/566900/

[7] Selyukh, Alina, What Gets To Be A ‘Burger’? States Restrict Labels On Plant-Based Meat, Heard on Morning Edition, July 23, 2019, https://www.npr.org/sections/thesalt/2019/07/23/744083270/what-gets-to-be-a-burger-states-restrict-labels-on-plant-based-meat

[8] Mississippi Senate Bill 2922, Section 1(4), Passed March 12, 2019, https://legiscan.com/MS/text/SB2922/id/1948120

[9] Ark. Code. Ann. § 2-1-305, Turtle Island Foods SPC v. Soma, 2019 BL 503231, 3 (E.D. Ark. Dec. 11, 2019)

[10] H.R.4881 - Real MEAT Act of 2019, Section 403D(a), Introduced in House, November 14, 2019, https://www.congress.gov/bill/116th-congress/house-bill/4881/text

[11] Miss. Code Ann. §75-33-5, Labeling of Plant-Based Foods § 112.01, November 6, 2019, http://www.mdac.ms.gov/departments/regulatory_services/MeatInspection/07-Meat-and-Poultry-Inspection.pdf

[12] Cushing, Tim, After Being Sued, Mississippi Rewrites Its Unconstitutional Ban On The Use Of Meat Words By Vegan Food Producers, TechDirt, September 13, 2019, https://www.techdirt.com/articles/20190910/09384142957/after-being-sued-mississippi-rewrites-unconstitutional-ban-use-meat-words-vegan-food-producers.shtml

[13] Turtle Island Foods SPC v. Soman, Preliminary Injunction Order (E.D. Ark. July 22, 2019), 2019 U.S. Dist. LEXIS 225017, *31

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 35-36.

[22] Id. at 36.

[23] H.R.4881 - Real MEAT Act of 2019, Section 403D(a), Introduced in House, November 14, 2019, https://www.congress.gov/bill/116th-congress/house-bill/4881/text

[24]See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 458, 117 S. Ct. 2130, 2133, 138 L. Ed. 2d 585, 593 (1997).

[25] See Id.

[26] Merriam-Webster, “Imitation”, https://www.merriam-webster.com/dictionary/imitation

[27]See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 565 (1980).

[28] Id.

[29] See Rubin v. Coors Brewing Co., 514 U.S. 476, 491, 115 S. Ct. 1585, 1593-94 (1995).

[30] Miss. Code Ann. §75-33-5, Labeling of Plant-Based Foods § 112.01, November 6, 2019, http://www.mdac.ms.gov/departments/regulatory_services/MeatInspection/07-Meat-and-Poultry-Inspection.pdf

[31] PBFA Labeling Standards for Meat Alternatives, Section 3, December 2019, https://plantbasedfoods.org/wp-content/uploads/PBFA-Labeling-Standards-for-Meat-Alternatives.pdf

[32] ACLU, Federal Court Blocks “Veggie Burger” Censorship Law, December 11, 2019, https://www.aclu.org/press-releases/federal-court-blocks-veggie-burger-censorship-law

[33] 21 U.S. Code Section 341, Definitions and standards for food, https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title21-section341&num=0&edition=prelim

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