The burger battle: The lawsuits challenging restrictions on plant-based meat labels

The burger battle: The lawsuits challenging restrictions on plant-based meat labels
As new laws sweep across America regulating what food can and can't be called meat, a torrent of lawsuits are pushing back arguing the laws are unconstitutional
As new laws sweep across America regulating what food can and can't be called meat, a torrent of lawsuits are pushing back arguing the laws are unconstitutional
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As new laws sweep across America regulating what food can and can't be called meat, a torrent of lawsuits are pushing back arguing the laws are unconstitutional
As new laws sweep across America regulating what food can and can't be called meat, a torrent of lawsuits are pushing back arguing the laws are unconstitutional

For the last few years a cold war has been brewing in the world of food-labeling. Sensing the oncoming market disruption from alternative and plant-based meat substitutes, traditional meat-producing industries have been lobbying to pass laws regulating what can, or cannot, be called meat. The mission has so far been reasonably successful, with a number of US states passing laws limiting certain terminology to highly specific sources.

At the start of July, for example, the state of Mississippi instituted a new law stating, "any food product containing cell-cultured animal tissue or plant-based or insect-based food shall not be labeled meat or as a meat product."

The law was not as simple as disallowing plant-based products from being called meat but more broadly included meat-related terms. So now, in the state of Mississippi, you cannot call a "veggie burger" a burger.

Arkansas is another state pushing through new food labeling laws. Republican David Hillman is one of the primary sponsors of the Arkansas bill, which was passed earlier in 2019, but only goes into effect later this month. Hillman suggests the fundamental goal of the new law is to protect consumers from products with intentionally misleading labels.

The act, subsequently titled "An Act to Require Truth in Labeling of Agricultural Products That Are Edible by Humans," is perhaps the most extraordinarily far-reaching food-labeling law in this new wave of pro-animal product regulations. The Arkansas law doesn't just cover animal-based meat products, but also includes all dairy, horticultural, viticultural, and even bee-related, products. So technically, the new Arkansas regulation outlaws every kind of milk that doesn't come from an animal, and even goes so far as to include vegetable-based grain alternatives, such as cauliflower rice.

Arkansas is the largest rice producer in the United States and Hillman himself is a self-declared rice farmer, and despite admitting his personal interest in protecting the state's rice industry, he still claims the goal of the new law is to keep the market fair and protect consumers from deception.

"You can't sell a Chevy and call it a Cadillac," he said recently.

The lawsuits

The pushback against these new laws is growing, with a number of lawsuits questioning the core constitutionality of these strict labeling regulations. Daniel Staackmann, a founder of the Plant Based Foods Association and owner of a small vegan food company, is pushing back against the law in Mississippi.

"Our labels are not trying to trick consumers into buying our vegan foods," says Staackmann. "We aim to clearly communicate what our foods are made from for those actively seeking vegan foods and others considering incorporating them into their diet. Mississippi's law is not about clearing up consumer confusion, it's about stifling competition and putting plant-based companies at a disadvantage in the marketplace."

In Arkansas the laws are being challenged in a lawsuit filed by the ACLU and others, on behalf of the longstanding popular meat alternative Tofurky. This lawsuit again questions the constitutionality of these new food labeling laws claiming they inherently violate First Amendment free speech protections.

About 40 years ago the United States Supreme Court broadened free-speech protections to include commercial speech. One of the central rules for commercial speech protected by the First Amendment is that it is not misleading. And it looks like this will be the fundamental tenet to be debated in these oncoming legal battles.

In a statement from the ACLU accompanying its Arkansas lawsuit, staff attorney Brian Hauss suggests not only is a plant-based meat label not misleading, but alternative labeling requirements actually generate more confusion amongst consumers.

"Businesses often rely on figurative language to help communicate information about the flavor, texture, or appearance of their products," Hauss writes. "Consumers know that 'peanut butter' is not made from cows, but the product's name efficiently informs them that it spreads like butter. 'Veggie bacon' is appealing to consumers who enjoy the distinctive taste, smell, and crunch of conventional bacon, but who prefer plant-based foods for any number of personal reasons. If companies are forced to describe their products as 'savory plant-based protein,' consumers are likely to be much more confused about exactly what it is they're putting on their plates. And that's the real purpose of these label censorship laws: creating confusion to protect favored economic interests."

The imitation skim milk saga

This particular legal argument has a successful precedent. In 2012 Ocheesee Creamery, a small dairy producer, was ordered by the Florida Department of Agriculture and Consumer Services (DACS) to cease calling a product it was selling "skim milk." It was claimed that Ocheesee Creamery was misleading its customers because the product it was calling skim milk did not contain added vitamin A. Skim milk is generally fortified with vitamin additives, and if the product did not contain those additives the DACS demanded it be labeled "imitation skim milk."

For three years, between 2014 and 2017, the issue was fought in courts, hinging on a First Amendment commercial speech argument. Ocheesee Creamery finally won the long legal battle with the court concluding the term "skim milk" was not inherently misleading, and thus its product label was protected by the First Amendment.

The Institute for Justice (IJ), an organization working to help Americans protect their civil liberties, worked with Ocheesee Creamery on the skim milk case, and it is also joining forces to challenge these new Mississippi food labeling laws. IJ's managing attorney Justin Pearson suggests there is no one out there who is confused or misled over terms such as "veggie burger" and "vegan hot dog."

"To the contrary, those terms tell consumers that they are buying exactly what they want: a plant-based alternative to animal meat," says Pearson. "By banning the terms customers understand best, Mississippi is not only creating confusion, but also violating the First Amendment rights of both sellers and consumers."

I'll have a veggie disc and fries

This war is not only restricted to the United States. A European Union proposal floated in April is suggesting all meat-related terms can only be used in reference to products that come from animals. This means terms like "burger", "steak", and "mince'", should only refer to animal flesh products. French EU Parliament member Éric Andrieu claims this proposed regulation is about common sense, and is in the best interests of consumers.

"We felt that steak should be kept for real steak with meat and come up with a new moniker for all these new products. There is a lot to be done in this front, a lot of creativity will be needed," said Andrieu. "People need to know what they are eating. So people who want to eat less meat know what they are eating – people know what is on their plate."

Some commenters have floated the term "veggie disc" as a potential replacement for "veggie burger." The new EU regulation is set to be voted on by the full parliament sometime over the next month.

This food labeling cold war is inarguably heating up as different meat alternative technologies are rapidly reaching mainstream markets, threatening the longstanding dominance of traditional agricultural industries.

A recently released report into consumer eating habits revealed 10 percent growth in plant-based burger orders at fast food restaurants in the United States over the past year. A striking 95 percent of these plant-based burgers are reportedly being consumed by meat-eaters, and while beef burger consumption has not dropped over the last 12 months, growth has been flat.

Consumers are undeniably open to trying meat alternatives, especially when those alternatives increasingly resemble traditional meat products. The question that remains is what will be calling those beef burger alternatives 10 years from now?

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