The scope of the bills - which have been introduced in multiple states – varies, with some attempting to prohibit the use of terms such as ‘meat’ and ‘milk’ on plant-based products, even if they use qualifiers such as ‘dairy-free’ or ‘plant-based;’ and others extending that prohibition to terms such as ‘burgers.' Some allow ‘meaty’ terms, but then attempt to regulate the size and prominence of qualifiers such as ‘vegan’ or ‘plant-based’ on food labels.
House Bill 316 in Texas, for example, defines ‘meat’ as “any edible portion of a livestock carcass that does not contain lab-grown, cell cultured, insect, or plant-based food products,” while Assembly Bill A507 in New York (which has just referred to the Committee on Consumer Affairs and Protection), defines ‘milk’ as the “lacteal secretion obtained from one or more healthy mammals.”
The legal battle
The plant-based industry has had mixed success challenging such laws, which supporters insist are vital to avoid consumer confusion, and opponents claim are a 'solution in search of a problem,' but there have been some notable wins for the plant-based lobby in the past couple of years, with judges challenging the notion that shoppers are being misled.
As for free speech, a federal district court in Arkansas recently determined that a challenge to a state law restricting ‘meaty’ terms on plant-based products was likely to prevail on the merits of its First Amendment claim, something that has been seized upon by plant-based stakeholders.
Granting the plaintiff’s motion for a preliminary injunction, US District Judge Kristine G. Baker also disputed claims that shoppers were confused, adding: “The State appears to believe that the simple use of the word ‘burger,’ ‘ham,’ or ‘sausage’ leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.”
In Virginia, Gov. Ralph Northam vetoed a bill that would have limited the use of the term ‘milk’ on food labels to the lacteal secretions of hooved animals, arguing that it "could hinder some businesses’ ability to thrive" and "likely conflicts with both the United States Constitution and the Constitution of Virginia and each’s protection of commercial speech."
In Mississippi, meanwhile, Upton’s Naturals and the Plant Based Foods Association dropped a lawsuit challenging legislation banning plant-based brands from using ‘meaty’ terms on labels, after the law was revised to allow them to use meaty terms with qualifiers such as 'vegan.'
Most recently, a judge in California handling a case over the use of the term 'butter' on plant-based products from Miyoko's Creamery, said the “state’s showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming.”
Consumer class actions challenging terms such as ‘almondmilk’ and ‘soymilk,’ in turn, have not made much headway, with judges arguing that the federal standard of identity for ‘milk’ - which limits it to lacteal secretions from cows - does not categorically preclude a company from using names that include the word ‘milk’ (e.g. 'soymilk') as long as they use qualifiers such as ‘plant-based’ or ‘dairy-free’ and are truthful and not misleading.
Judge: 'The possibility of deception flowing from the use of meat-related terms for plant-based products is self-evident'
However not every court has seen things in this way, with a judge in Oklahoma recently denying a motion from Upton’s Naturals and the PBFA for a preliminary injunction to block a law regulating the size and prominence of qualifiers such as ‘vegan’ or ‘plant-based’ on alternative meat products.
In his November 2020 order on the case,* Judge Stephen Friot said: "The court is satisfied that 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.”
Addressing the argument that qualifiers such as ‘plant-based’ make it clear that the products are not from slaughtered animals, he said: “The terms do not provide, in the court’s view, sufficient information for the reasonable consumer to conclude that the product is plant-based rather than animal-based.”
Impossible Foods: 'These bills are frankly asinine and have nothing to do with consumer confusion'
Given that many consumers are buying plant-based meat – which often come with a premium price tag – precisely because it is not derived from animals, it’s hardly in companies’ interests to conceal this fact, observed Impossible Foods chief communications officer Rachel Konrad.
“These bills are frankly asinine and have nothing to do with consumer confusion,” she told FoodNavigator-USA: “The reason we’re doing so well is precisely because consumers know exactly what they’re buying, they are buying our products because they don’t contain animal products.
“The beef industry and the lobbyists are being highly disingenuous when they talk about consumer confusion. Consumers aren’t confused. This is about trying to hinder what the animal agriculture industry knows is an existential threat [ie. plant-based, cell-cultured meat].
“This is about an incumbent, doomed, gross polluting industry trying to do whatever it can to slow down the ascent of a new technology that is better for the people and for the planet.”
PBFA: 'Companies are using clear and well-understood qualifiers such as 'non-dairy,' 'dairy-free,' or 'plant-based'
In a recent letter to the New York State Assembly, Nicole Sopko, president at The Plant Based Foods Association, argued that the intent of Bill A507 "is a clear violation of the First Amendment, infringing on the free speech rights of plant-based food companies to communicate with their customers in a truthful, non-misleading manner."
She added: “Companies selling plant-based dairy foods are using easy-to-understand, clear, descriptive, and truthful language on labels, including words such as 'milk,' 'cheese,' 'yogurt,' and 'butter.' To our members, and to consumers, these words represent functionality, form, and taste, not the origin of the primary ingredient. Companies also are using clear and well-understood qualifiers such as 'non-dairy,' 'dairy-free,' or 'plant-based.'"
Texas bill 'has no chance of surviving a First Amendment challenge'
While the new Texas bill on ‘meaty’ terms “has no chance of surviving a First Amendment challenge in court,” claimed Michael Robbins, policy & media consultant at the PBFA, “We are taking it seriously and talking to Texas state legislators and others in the industry to try and educate them about the fact that it’s not only unnecessary but unconstitutional.
“We’re also trying to be more proactive to try and stop the introduction of these bills [rather than filing legal challenges to them once they have passed] through education and talking to open-minded legislators to explain that such legislation is not necessary and runs against the free market principles many of them are trying to champion.”
GFI: 'We hope state legislators will focus on bigger priorities than the imaginary crisis of people confusing veggie burgers for hamburgers'
Scott Weathers, senior policy specialist at the Good Food Institute (GFI), a nonprofit that promotes plant-based and cell-based meat, said the GFI is "cautiously optimistic" that the tide might turn in 2021, although it expects more bills in the immediate future.
“Last year, we saw states as geographically and politically diverse as Wisconsin, Nebraska, Kansas, Arizona, Colorado, Maryland, and Washington reject label censorship.”
The GFI, he added, hopes legislators “will focus on bigger priorities than the imaginary crisis of people confusing veggie burgers for hamburgers.”
*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
Where does the dairy and meat industry stand on plant-based ‘milk’ and ‘meat’?
Many leading meat and dairy brands have invested in plant-based and cell-cultured meat and dairy, and have not actively supported attempts to restrict dairy or meaty terms on food labels.
However, associations representing dairy farmers and cattle ranchers have been heavily involved in the drafting of so-called ‘truth in labeling’ state bills.
The Dairy Business Association in Wisconsin, for example, lists “passing truth-in-labeling bills for milk, dairy products and meat,” as one of its key legislative priorities for 2021, adding: “The plant-based industry uses terms like milk, cheese and ice cream to ride on the marketing coattails of dairy farmers and processors. Customers are being misled by this false labeling. The use of dairy terms suggests their products have the same nutritional content of milk and other dairy products, which is not true.”
The Texas and Southwestern Cattle Raisers Association, which “opposes alternative proteins being permitted to use nomenclature associated with protein sourced from livestock production,” is also “heavily engaged” on bills on topics including “fake meat.”
At a federal level, the National Cattlemen’s Beef Association says it is “leading efforts in Washington to make sure that fake meat – both current plant-based products and potential lab-produced products in the future – is properly marketed and regulated,” It is also a vocal backer of the federal Real MEAT Act, which defines ‘beef’ or ‘beef product’ as “any product containing edible meat tissue harvested in whole form from domesticated Bos indicus or Bos taurus cattle,” which would exclude both plant-based and cell-cultured meat.
The National Milk Producers Federation (NMPF), which claims the FDA has been turning a “blind eye” to violations of its own standards of identity, filed a citizen’s petition in 2019 proposing that plant-based brands that do not match dairy counterparts nutritionally should use the term ‘imitation’ (eg. ‘imitation milk’); while those that do match dairy nutritionally should use terms such as ‘alternative’ (eg. ‘yogurt alternative’).
The FDA, which weighed into the plant-based 'milk' debate in 2018 after years of radio silence, but has not issued any new guidance, has not yet responded.
*The labelling of plant-based 'milk' and 'meat' will be explored at the ACI’s virtual Food Law summit May 12-13, which will also cover other hot topics including CBD and cannabis, trades and tariffs under the Biden administration, the role of influencers and user-generated content, and recalls and crisis management. FoodNavigator-USA readers can save 10% with Code: D10-825-825FX01