Impossible, Beyond, Everything Legendary. These are just a few of the names adorning plant-based meat substitutes these days. With monikers like this, consumers might be right to expect that the health benefits of switching to an animal-free lifestyle are well worth the price of admission. And perhaps they are.
What consumers might not expect, however, is that the products they are buying don’t contain actual meat. To vegetarians who regular subsist on such dietary alternatives, it may be hard to swallow the idea that a product which markets itself as “100% vegan” could possibly be anything but. However, a slate of recently passed legislation says otherwise, and numerous states have now passed laws that prohibit labeling plant-based proteins in a way that suggests they are animal-based—even where the packaging accurately describes the product’s true nature.
Supporters of these laws argue that more restrictive labeling will reduce consumer confusion. Opponents contend that the current legislative push has less to do with protecting consumers, and more to do with catering to the meat industry. And the latter argument may have some teeth. Consider, for example, that two of the three politicians who introduced Louisiana’s Truth in Labeling of Food Products Act—which prohibits any person that places a label on a food product from intentionally misbranding or misrepresenting the food product as an agricultural product—openly stated that the Act is primarily aimed at protecting the animal agriculture industry.
Not surprisingly, a flurry of litigation has ensued to challenge these laws. To date, advocates and manufacturers of plant-based foods have filed lawsuits in numerous states, including Oklahoma, Louisiana, California, Arkansas, Mississippi and Missouri. While the individual claims asserted in these lawsuits vary, they share a common thread in that virtually all arise from allegations that these truth-in-labeling laws violate the First Amendment.
Initially, the challengers appeared to be enjoying the upper hand, with a series of legal victories coming out of Arkansas, California and Mississippi, among others. However, in November 2020, the Western District of Oklahoma issued a resounding blow to these efforts, which may indicate a turning of the tide.
The case in question, Upton’s Naturals Co. v. Stitt, involved a challenge by Upton’s Naturals and the Plant Based Foods Association (PBFA) to Oklahoma’s Meat Consumer Protection Act. Similar to the legislation passed in other states, the Act prohibits “misrepresenting a product as meat that is not derived from harvested production livestock.” Although the Act does allow producers of plant-based proteins to use traditional terms associated with meat in describing their products (e.g., hot dog, meatballs, bacon), the packaging must clearly state that “the product is derived from plant-based sources in type that is uniform in size and prominence to the name of the product.”
The plaintiffs in Upton’s Naturals sought to enjoin enforcement of the Act, alleging that its labeling requirements constituted a compelled disclosure, in violation of the First and Fourteenth Amendments. For example, one of the products specifically addressed by the court was Upton’s “Ch’eesy Bacon Mac.” True, the product didn’t actually contain bacon. But then again, neither did its ingredient list include reference to any pork proteins. Moreover, and as emphasized by the plaintiffs, the term “vegan” appeared conspicuously on the product’s label, albeit not as large or as prominent as the product name.
The Western District of Oklahoma denied the plaintiffs’ request for an injunction, holding that they could not show a likelihood of success on the merits. Applying the standard enunciated by the Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, the court held that the state only needed to demonstrate that the compelled disclosure was “reasonably related” to a substantial government interest. So long as this standard was satisfied, the state could legally require speakers to divulge “purely factual and uncontroversial information” without running afoul of the Constitution.
In the court’s words, “The possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident from the natural inference a consumer would draw from the meat-related terms used.” Simply put, “Many shoppers just don't have the time, or perhaps even the inclination, to study product labels in more detail.”
Thus, regardless of whether the packaging disclosed the product’s true “vegan” nature, the use of traditional meat terminology had the potential to confuse hurried grocery shoppers who might not look past the name. As the court held, the Act’s requirement that such disclosures be in the same size and type as the product’s name would alleviate this tendency, and was, at the very least, reasonably related to the government’s interest in protecting consumers.
Contrast the Western District of Oklahoma’s reasoning with that of the Eastern District of Arkansas in Turtle Island Foods SPC v. Soman. There, the court enjoined Arkansas’ plant-based labeling law on the grounds that terms like “burger” likely did not cause consumer deception when modified with “veggie,” and where the term “all vegan” appeared in the middle of the package. In the court’s view, such an argument “require[d] the assumption that a reasonable consumer will disregard all other words found on the label” and focus solely on the word “burger.” Unlike the law in Oklahoma, Arkansas’ statute did not provide an exception to enforcement for sufficiently prominent qualifiers, but explicitly prohibited any utilization of 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.”
Candidly, it is difficult to reconcile the reasoning of the above cases. As it stands, a manufacturer seeking to market a plant-based meat substitute as a “burger” in Arkansas must simply be sure to conspicuously include the term “vegan” or “veggie” on the packaging. Consumers there are expected to be careful enough to pick this up before they reach the checkout stand. In Oklahoma, however, only where the modifier is the the same size and prominence as the product name can a consumer be certain to know what they are buying. Otherwise, shoppers in a hurry may ostensibly find themselves eating pea protein for dinner when they thought they were grilling up sliders.
Whether the court’s decision in Oklahoma represents a new direction in the ongoing battle over plant-based labeling—or a one-off exception to the general trend—remains to be seen. Unfortunately, anyone hoping for guidance from the appellate court will be disappointed, at least for the time being. While Upton’s Naturals was appealed to the 10th Circuit, that appeal was voluntarily dismissed by the plaintiffs in June 2021. Nevertheless, the decision will likely serve as an important touchpoint going forward for those on both sides of the equation.
Until the dust settles, the best advice for plant-based protein manufacturers remains to err on the side of caution. While bigger may not always be better, when it comes to compliance with truth-in-labeling laws, it almost certainly is. Catchy names are great, but if a brand is going to market a veggie patty as a “burger,” the best way to ensure compliance is to give both terms equal playing time.
James Molen is a partner in the litigation department of Greenberg Glusker. A passionate advocate, he has built a reputation for developing creative strategies and winning arguments for a wide variety of clients, including beauty product manufacturers, food distributors and technology firms.