Plant-based labeling wars: Oklahoma law is unconstitutional, claim PBFA, Upton’s Naturals in lawsuit

17-Sep-2020 - Last updated on 17-Sep-2020 at 15:52 GMT

Upton's Naturals: '“Our labels make it perfectly clear that our food is 100% vegan.' (picture credit: Upton's Naturals)

Plant-based meat maker Upton’s Naturals and the Plant Based Foods Association (PBFA) have fired the latest salvo in the battle over the labeling of plant-based products in a lawsuit* challenging Oklahoma’s new ‘Meat Consumer Protection Act.’

The law – which comes into effect on November 1 and was backed by The Oklahoma Cattlemen’s Association - permits brands such as Upton’s to use ‘meaty’ terms such as ‘meat,’ ‘beef,’ and ‘bacon’ on their labels.

However, the small print stipulates that they must also include a disclaimer stating that their products are derived from plant-based sources “in type that is uniform in size and prominence to the name of the product.”

‘There is no legitimate reason for this oversized-warning requirement’

Daniel Staackmann Upton’s Naturals — Daniel Staackmann: ‘Upton’s Naturals makes sure that its food labels are proudly marked as ‘vegan’ and clearly state that the foods do not contain meat.’

While this might seem pretty innocuous, the reality is that for most brands, the name of the product is typically in much larger type than any accompanying descriptors such as ‘vegan,’ or ‘plant-based,’ argue Upton’s and the PBFA in a new lawsuit vs Oklahoma governor Kevin Stitt and commissioner of agriculture, Blayne Arthur.

“There is no legitimate reason for this oversized-warning requirement, which treats plaintiffs’ healthy products like cigarettes or alcohol.

“If relief is not granted by this court [Upton’s and the PBFA say the law violates their First and Fourteenth amendment rights and are seeking an injunction to prohibit the state from enforcing the law while the case is litigated], the Act will force many of PBFA’s members to either change their labels or to stop advertising and selling their products in Oklahoma.”

PBFA: ‘It is customary for the font size of product names to be the largest on the label’

In a declaration in the lawsuit, PBFA executive director Michele Simon said it was “highly likely” that some PBFA members would withdraw products from Oklahoma should the new law go into effect.

Given that consumers are buying plant-based meat products – which often come with a premium price tag – precisely because they are not derived from animals, it’s hardly in PBFA members’ interests to conceal this fact, said Simon, responding to claims from Oklahoma State Senator Micheal Bergstrom that shoppers are "confused" by current labeling practices (see box below).

However, it is “customary for the font size of product names to be the largest on the label,” she added.

“Our members want the flexibility to be able to choose the labels and messages of their choice, so long as they are truthful and not misleading.”

“Our labels make it perfectly clear that our food is 100% vegan,” said Daniel Staackmann at Upton’s Naturals founder, which also teamed up with the PBFA and the Institute for Justice to successfully challenge a meat labeling law in Mississippi.

“But now our meat industry competitors in Oklahoma want to force us to redesign our labels as if our safe, healthy products are potentially harmful.”

Attorney: ‘First Amendment does not allow the government to compel speech just to protect special interest groups from competition’

“Oklahoma already has a law prohibiting misleading labels,” added Institute for Justice senior attorney Justin Pearson.

“But since the meat industry couldn’t use that law to thwart honest competition, they encouraged the legislature to pass a new law. The First Amendment does not allow the government to compel speech just to protect special interest groups from competition.”

FoodNavigator-USA has contacted Blayne Arthur and the Oklahoma Cattlemen’s Association and Oklahoma Pork Council for comment and will update this article should it receive any comments. A spokesman for Governor Kevin Stitt said that his office does not comment on pending litigation.

*The case is Upton’s Naturals Co and the Plant Based Foods Association vs Kevin Stitt, in his official capacity as Oklahoma governor; and Blayne Arthur, in her official capacity as Oklahoma commissioner of agriculture. 5:20-cv-00938 filed in the US district court for the western district of Oklahoma on September 16.

The Oklahoma Meat Consumer Protection Act, which takes effect November 1, 2020, was introduced by Oklahoma State Senator Micheal Bergstrom in conjunction with the Oklahoma Cattlemen’s Association.

In a press release welcoming the Act – signed into law in May – Bergstrom said: “Clever marketing practices and deceptive labeling on plant-based meat alternatives can be confusing for shoppers looking to purchase meat-based items at the grocery store.

"HB 3806 ensures that clarity and accuracy of labeling meat and plant-based food items, giving consumers peace of mind that they are purchasing exactly what they intended.”

Interested in plant-based meat?

Join top executives at some of the leading players in the plant-based space including Impossible Foods, Beyond Meat, Planterra Foods (JBS), Meati Foods and The Good Food Institute at our FREE webinar October 14: Plant-based meat in focus to explore where the market is going next.