Impossible, Beyond, All Legendary. These are just a few of the names that adorn plant-based meat substitutes these days. With nicknames like this, consumers might be right to expect that the health benefits of switching to a pet-free lifestyle are well worth the price of admission. And maybe they are.
What consumers might not expect, however, is that the products they buy don’t contain real meat. For vegetarians who regularly eat such diet alternatives, it can be hard to swallow the idea that a product that claims to be “100% vegan” could be anything else. However, a list of recently passed laws says otherwise, and many states have now passed laws prohibiting the labeling of plant proteins in a way that suggests they are of animal origin, even when the packaging described with precision the true nature of the product.
Supporters of these laws argue that more restrictive labeling will reduce consumer confusion. Opponents argue that the current legislative push has less to do with consumer protection, and more to do with catering to the meat industry. And this last argument can have teeth. Consider, for example, that two of the three politicians who introduced Louisiana’s Food Labeling Truth Act, which prohibits anyone labeling a food product from intentionally branding or distort the food product as an agricultural product, openly stated that the law is primarily aimed at protecting the animal agriculture industry.
Not surprisingly, a flurry of litigation ensued to challenge these laws. To date, defenders and manufacturers of plant-based foods have filed lawsuits in many states, including Oklahoma, Louisiana, California, Arkansas, Mississippi and Missouri. While the individual claims raised in these lawsuits vary, they share a common thread in that virtually all of them stem from claims that these truth-in-labeling laws violate the First Amendment.
Initially, the challengers seemed to gain the upper hand, with a string of legal wins from Arkansas, California and Mississippi, among others. However, in November 2020, the Western District of Oklahoma dealt a blow to these efforts, which may indicate a trend reversal.
The case in question, Upton’s Naturals Co. v. Stitt, involved a challenge by Upton’s Naturals and the Plant Based Foods Association (PBFA) of Oklahoma’s Meat Consumer Protection Act. Similar to legislation passed in other states, the law prohibits “denaturing a product such as meat that does not come from harvested production livestock.” Although the Act allows vegetable protein producers to use traditional terms associated with meat to describe their products (e.g., uniform in size and prominence relative to the name of the product.
The plaintiffs in Upton’s Naturals sought to ban the law’s application, alleging its labeling requirements constituted forced disclosure, in violation of the First and Fourteenth Amendments. For example, one of the products specifically considered by the court was Upton’s “Ch’eesy Bacon Mac”. Granted, the product didn’t actually contain bacon. But then again, its ingredient list didn’t refer to pork protein either. In addition, and as pointed out by the applicants, the term “vegan” was prominently displayed on the product label, although it is not as big or as prominent as the name of the product.
The Western District of Oklahoma denied the plaintiffs’ injunction, arguing that they could not demonstrate a likelihood of success on the merits. Applying the standard set out by the Supreme Court in Zauderer v. Office of the Disciplinary Council of the Ohio Supreme Court, the court ruled that the state need only show that the compelled disclosure was “reasonably connected” to a substantial government interest. As long as this standard was met, the state could legally require speakers to disclose “purely factual and uncontroversial information” without violating the Constitution.
In the words of the court, “the possibility of deception arising from the use of meat-related terms for plant-based products is evident from the natural inference that a consumer would draw from the meat-related terms used” . Put simply, “many shoppers just don’t have the time, or maybe even the inclination, to study product labels in more detail. “
So, regardless of whether the packaging revealed the product’s true “vegan” nature, the use of traditional meat terminology had the potential to confuse busy grocers who might not look past the name. As the court held, the statutory requirement that such disclosures be of the same size and type as the product name would mitigate this tendency and was, at the very least, reasonably related to the interest government to protect consumers.
Compare the reasoning of the Western District of Oklahoma with that of the Eastern District of Arkansas in Turtle Island Foods SPC v. Soman. There, the court ordered the Arkansas herbal labeling law on the grounds that terms like “hamburger” probably did not mislead consumers when changed to “vegetarian” and where the word “all vegan” was in the middle of the package. In the court’s opinion, such an argument “requires[d] the assumption that a reasonable consumer will ignore all other words on the label ”and will focus only on the word“ hamburger ”. Unlike Oklahoma law, Arkansas law did not provide an exception to the application for qualifiers large enough, but explicitly prohibited any use of a term “that is the same or similar to a term that has been used or defined historically with reference to a specific agricultural product.
Frankly, it is difficult to reconcile the reasoning of the above cases. As it stands, a manufacturer looking to market a plant-based meat substitute as a “burger” in Arkansas simply needs to be sure to include the term “vegan” or “vegetarian” prominently. ”On the packaging. Consumers are supposed to be careful enough to pick it up before they reach the checkout. In Oklahoma, however, it is only when the modifier is the same size and importance as the name of the product that a consumer can be sure they know what they are buying. Otherwise, shoppers in a hurry might find themselves eating pea protein for dinner when they thought they were grilling sliders.
It remains to be seen whether the Oklahoma court ruling represents new direction in the ongoing battle over herbal labeling or a one-time exception to the general trend. Sadly, anyone hoping for advice from the appeals court will be disappointed, at least for now. While Upton’s Naturals appealed to the 10th Circuit, that appeal was voluntarily rejected by plaintiffs in June 2021. Nonetheless, the ruling will likely serve as an important point of contact going forward for those on both sides of the equation.
Until the dust settles, the best advice to plant protein manufacturers is to err on the side of caution. While bigger isn’t always better, when it comes to complying with labeling truth laws, it almost certainly is. Eye-catching names are great, but if a brand markets a veggie patty as a “burger,” the best way to ensure compliance is to give both terms equal playing time.
* This article originally appeared in Food & Beverage Insider on September 2, 2021 and can be viewed here.