The war of the words has been heating up on fake meat. Another skirmish has broken out, this time in Mississippi, and the Missouri stalemate has broken.
On July 1, Mississippi’s labeling law went into effect. The law prohibits plant- or insect-based or cell-cultured foods to be labeled as “meat or a meat food product.” That same day vegan food company Upton’s Naturals and the Plant Based Foods Association (PBFA) sued the state. They claim the Mississippi law violates their freedom of speech.
Just a few days later, the Animal Legal Defense Fund told FoodNavigator-USA that their lawsuit in partnership with the makers of Tofurkey against the state of Missouri would continue. Missouri was the first state to pass a meat labeling law last year. Plaintiffs sued the state, also on First Amendment grounds, but had been working on a settlement agreement since earlier this year.
Regarding the new lawsuit in Mississippi, PBFA Executive Director Michele Simon characterized the state’s law was little more than pandering to the meat industry.
“This Mississippi law is the meat lobby’s response to growing consumer demand; they are attacking words on labels, instead of competing in the marketplace. Whatever happened to the free market?” she asked in the group’s announcement of the lawsuit.
“The Mississippi law would create unnecessary, confusing, and costly label changes that would stifle innovation and frustrate consumers.”
The suit’s complaint document outlines the groups’ arguments. These are, in summary:
• Upton Naturals and member groups of the PBFA sell plant-based foods marketed to “consumers who are looking for alternatives to meat-based products.”
• The labels on these products utilize “meat and meat product terms” in product labeling, but with modifiers like “vegan,” “meatless,” and “plant-based.” Examples given include “vegan burgers” and “meatless meatballs.”
• The use of such terms is necessary to “describe the foods in the clearest possible manner.” Plaintiffs also assert that “No reasonable consumer would be misled by these uses of these terms.”
• The Mississippi law would require label changes that would hurt the company and serve only to confuse consumers and reduce their understanding of the products.
• Mississippi already has state laws that outlaw misleading labeling.
• The new law is unnecessary and violates the First Amendment guaranteeing freedom of speech and the 14th Amendment, which prohibits states from making laws abridging the rights of citizens.
The plaintiffs in the Missouri lawsuit make very similar assertions. The Missouri law, previously Senate bills 627 and 925, defines “meat” and “meat product” as something having “derived from harvested production livestock or poultry.” Any food product labeled as meat or a meat product that does not fit that definition is misrepresented or deceptively labeled. The law was signed in August 2018.
The Mississippi labeling law, previously Senate bill 2922 of the 2019 regular session, was introduced in January 2019. It passed both the state Senate and House unanimously in February and was signed by Gov. Phil Bryant (R) in March. Violations of the law can result in up to a year in prison and fines of up to $1,000 per offense.
The suit requests the court rule the law in violation of the First and 14th Amendments, and issue injunctions to prevent the state from implementing the law during the case and permanently.
According to Mark Dopp, general counsel for the North American Meat Institute (NAMI), how well such state-level laws will stand up in court is uncertain and largely dependent on wording and the products in question.
Regarding cell-cultured protein products—which are not yet available on the market and are not involved with the current lawsuits but are addressed by the Mississippi and Missouri laws—he explained that federal definitions will trump state laws.
“To the extent that the state law differs in its labeling requirements from what USDA approves in a label, those state laws are going to be preempted because there is an explicit preemption provision in the meat act and poultry act that says, essentially, that no state can impose a labeling requirement that is in addition to or different than what USDA approves.”
He called labeling laws related to plant-based proteins “a completely different kettle of fish.”
“The plant-based products are not regulated by USDA. They’re regulated by the Food and Drug Administration and the authority there is the federal Food, Drug, and Cosmetics Act,” he explained, noting that the act does not have the same explicit preemption provision as exists in the acts governing meat. The FDA also doesn’t engage in prior approval of labels as is the case for meat and poultry products.
Dopp did point out that there are federal definitions of meat and meat products. In the Code of Federal Regulations, Chapter 9, Section 301.2 (9 CFR § 301.2), “meat” is initially defined as “The part of the muscle of any cattle, sheep, swine, or goats which is skeletal,” with some additional cut-specific definitions. “Meat food product” is later described as food made in whole or in part from meat. Elsewhere in the CFR (9 CFR § 319), terms such as “hamburger,” “sausage,” and “bacon” are defined.
“There are a bunch of terms that have a definition by federal law, so if there’s a product that is a plant-based product and represents itself to be ‘meat’ or a ‘sausage’ or a ‘hot dog’ or a ‘frankfurter’ that doesn’t meet that standard, then forget about what the Mississippi law says… it’s misbranded under federal law,” Dopp said.
“Then the interesting thing is, what if it says, say, ‘vegetable hot dog.’ That’s a good question. I don’t have an answer for you.”
Plaintiffs in the Mississippi lawsuit are arguing along these lines, asserting that such modifiers make it clear to consumers that their products are not meat nor do they contain meat.
WLJ reached out to Dopp as a topic expert on meat and food labeling laws. Dopp and NAMI are not involved with the Mississippi case nor named as defendants. The complaint document does reference the “North American Meat Association” as having advocated for the Mississippi law, an assertion Dopp called false. — Kerry Halladay, WLJ editor