WHAT’S THE BEEF? CONTROVERSY SURROUNDING THE LABELING OF PLANT-BASED AND CELL-BASED MEAT

By Lexi Pitz, Volume 104 Staff Member

Meat consumption is a long-engrained tradition in the American diet. Recently, many American meat consumers are motivated to consume plant-based meat for reasons such as health, animal welfare,[1] and environmental impact.[2] The booming meat alternative industry lacks federal regulation or guidance on how to label meat alternatives.[3] As a result, several states enacted unconstitutional legislation that restricts the meat alternative industry’s ability to effectively label and market their products.[4] This Post calls for federal guidance addressing meat alternative labeling to solidify success of the meat alternative industry.

I.  WHAT IS PLANT-BASED AND CELL-BASED MEAT?

Currently, plant-based meat products are the only alternative meat product on the market.[5] Plant-based meat products are made through extraction of protein from plants, combined with other plant-based ingredients.[6] However, research and development of cell-based meat is on the rise.[7] Cell-based meat products are made through animal cell extraction and are grown in a lab.[8]

Obviously, vegetarians and vegans contribute to the increased rate of plant-based meat consumption in the U.S.[9] However, due to the population differential between plant-based consumers and meat consumers,[10] meat consumers are the predominant contributors to the increased popularity of meat alternatives.[11]  Any hope for widespread decrease in meat consumption depends on production of meat alternatives that targets meat consumers.[12]

Companies—recognizing the importance of meat-consumers to the success of plant-based meat—target their marketing towards meat-consumers and often label their products using terms such as “meat,” “burger,” and “hot dog.”[13] While the meat alternative industry strives to produce products that look like meat, taste like meat, and smell like meat, the absence of federal regulation for meat alternatives presents problematic uncertainty for meat alternative labeling and marketing.[14]

Recently, the United States Department of Agriculture (“USDA”) and the FDA released a regulatory framework for the cell-based meat industry.[15] Notably, the agreement between the USDA and the FDA leaves labeling regulation—more specifically, the question of whether cell-based meat can be labeled as “meat”—unsettled.[16] Plant-based regulation faces this problem as well.

II.  UNCONSTITUTIONAL STATE LEGISLATION PROHIBITING LABELING OF MEAT ALTERNATIVES AS “MEAT”

In the absence of federal regulations to govern labeling of plant-based meat and cell-based meat, numerous states have enacted laws that prohibit the labeling of meat alternatives as “meat.”[17] In particular, states have prohibited the use of terms such as “meat,” “sausage,” “jerky,” “burger,” and “hot dog.”[18] These states include Arkansas, Missouri, Mississippi, Montana, South Dakota, and Wyoming.[19] Currently, Arkansas, Mississippi, and Missouri face litigation to prohibit enforcement of these laws, which plaintiffs argue are violative of free speech and unfairly favor the meat industry over the meat alternative industry.[20]

In July 2019, Tofurky, a company that produces plant-based meat, and the ACLU sued the State of Arkansas over new legislation that prohibited companies, like Tofurky, from using words on their labels that are traditionally associated with agricultural products.[21] The Act’s stated purpose “is to protect consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.”[22] Importantly, the Act defines “meat” as “a portion of livestock, poultry, or cervid carcass that is edible by humans.”[23] The Act excludes “synthetic product derived from a plant, insect, or other source” and “product grown in a laboratory from animal cells” from the definition of meat.[24] Tofurky alleged that the Arkansas legislation is unconstitutional under the First Amendment, due to the infringement on Tofurky’s right to engage in truthful, non-misleading commercial speech.[25] Tofurky also alleged the legislation violates the Due Process Clause of the Fourteenth Amendment and the Dormant Commerce Clause.[26]

The District Court for the Eastern District of Arkansas ruled in favor of Tofurky and granted a preliminary injunction, which prohibited Arkansas from enforcing Ark. Code Ann. § 2-1-301.[27] The Court reached this ruling based on Tofurky’s likely success on First Amendment grounds.[28] In particular, the Court applied the intermediate scrutiny, four-prong Central Hudson test to determine whether Tofurky’s labeling is protected commercial speech.[29]

Under the first prong, the Court reasoned that Tofurky’s labeling is not misleading because although it contains labels such as “hot dog,” “meat,”  “sausage,” and “burger,” they are all modified or accompanied by words such as “vegan” and “plant-based,” which repeatedly indicates to the reasonable consumer that these products do not contain meat.[30] The Court agreed with the State of Arkansas under the second prong, confirming that combatting false and misleading labeling is a legitimate state interest.[31] However, under the third prong, the court explained the legislation does not “directly and materially” advance state goals to lessen consumer deception because Tofurky’s labeling is not likely to be found as false or misleading.[32] Lastly, under the fourth prong, the court reasoned that the State of Arkansas could have created less restrictive means to achieve the state’s interest.[33] For example, the state could have required more prominent display of vegan labeling through use of disclaimers or a unique logo.[34] Because the legislation did not pass all four prongs of Central Hudson, the Court held that Tofurky’s First Amendment claim is very likely to succeed.[35]

While Tofurky’s success at the District Court for the Eastern District of Arkansas is a temporary win for plant-based and cell-based meat companies, this decision is not likely to stop other states from enacting similar legislation to protect consumers against “misleading” labeling. This paternalistic regulation by state legislatures extends beyond the meat industry, with plant-based milk alternatives such as soy, almond, and cashew also facing scrutiny for their “misleading” labeling.[36]

III.  CURRENT FDA APPROACH REGARDING THE LABELING OF MEAT ALTERNATIVES

The FDA has not issued regulations or guidance about plant-based and cell-based meat labeling.[37] The agency has also remained relatively silent on the analogous issue of plant-based dairy labeling. In particular, the FDA has exercised wide discretion and allowed use of terms such as “milk” and “cheese,” as long as the plant-based nature of the product is clearly communicated by the label.[38]

Despite this lack of explicit direction, the FDA still maintains regulation and enforcement authority over meat and dairy labeling through misbranding provisions of the Food, Drug, & Cosmetic Act. (“FDCA”). Namely, the FDA has the authority to set “food standards” which define various foods by their composition and ingredients.[39] However, these “food standards” are outdated and do not consider modern alternatives like plant-based milk and alternative meat products.[40] In addition to and in conjunction with food standards, the FDA also has enforcement authority over food labeling through the misbranding provision of the FDCA Act which states “a food shall be deemed misbranded . . . if (1) its labeling is false or misleading in any particular.”[41] Thus, under FDA misbranding regulations, an alternative meat product can be labeled “meat” or “burger,” so long as the labeling also conveys the fact that it is plant-based or cell-based meat.

IV.  THE SOLUTION FOR MEAT ALTERNATIVE LABELING

In line with First Amendment protection of truthful, commercial speech, courts should unanimously strike down state laws that prohibit labeling of plant-based and cell-based meat products as “meat.” Instead, states should defer to the FDA and/or the USDA for labeling regulation due to the interstate nature of meat alternative packaging, labeling, and distribution.

One option is for the FDA and USDA to require that meat alternative labeling explicitly state “this product is not meat,” and create a new logo for plant-based and cell-based meat. Another option, although unappealing, is to restrict the use of terms such as “burger” and “hot dog” on meat alternative labeling. The FDA and USDA should adopt the first recommendation to support growing popularity of meat alternatives. This way, meat alternative products appeal to consumers through use of familiar terms such as “hot dog,” “burger,” and “sausage.” At the same time, the possibility of consumer confusion due to a potentially misleading label will be eradicated. With growing public consciousness of climate change concerns, animal cruelty, and the health benefits of consuming less meat, this labeling issue is a matter that deserves attention at the federal level.

[1] Meat alternatives eliminate the need for “caging, crating, and crowding animals.” Tamar Haspel, Lab-grown Meat and the Fight Over What It Can Be Called, Explained, Vox (Aug. 31, 2018, 12:28 PM), https://www.vox.com/2018/8/30/17799874/lab-grown-meat-memphis-just-animal-cell [https://perma.cc/WMR3-PHAR].

[2] Martin C. Heller & Gregory A. Keoleian, Beyond Meat’s Beyond Burger Life Cycle Assessment: A Detailed Comparison Between a Plant-Based and an Animal-Based Protein Source, Ctr. for Sustainable Systems U. of Mich.,Rep. No. CSS18-10 (Sept. 14, 2018), http://css.umich.edu/sites/default/files/publication/CSS18-10.pdf [https://perma.cc/U8C4-Y4QW] (explaining the Beyond Burger, a plant-based burger, used forty percent less energy, emitted ninety percent less greenhouse gas, and significantly reduced water and land use consumption in comparison to livestock production, which accounts for at least half of human-cause greenhouse gases).

[3] See infra Section I.

[4] See infra Section II.

[5] Olivia Roos, Is Fake Meat Better for You, or the Environment?, NBS News (Oct. 13, 2019, 9:27 AM), https://www.nbcnews.com/news/us-news/fake-meat-better-you-or-environment-n1065231 [https://perma.cc/X77J-P2A8].

[6] Id.

[7] Id.

[8] Id.

[9] North American meat alternative sales have jumped thirty-seven percent between 2017 and 2019. Sales increased from $584 million in 2017 to $800 million in 2019. Julia B. Olayanju, Plant-based Meat Alternatives: Perspectives on Consumer Demand and Future Directions, Forbes (July 30, 2019, 12:07 PM), https://www.forbes.com/sites/juliabolayanju/2019/07/30/plant-based-meat-alternatives-perspectives-on-consumer-demands-and-future-directions/#1c4f65736daa [https://perma.cc/59YD-6DJT].

[10] Vegetarians and vegans only represent a single-digit percentage of the U.S. population.

Quick Service Burger Buyers Mix It Up Between Plant-Based and Beef, NPD (July 17, 2019), https://www.npd.com/wps/portal/npd/us/news/press-releases/2019/quick-service-burger-buyers-mix-it-up-between-plant-based-and-beef/ [https://perma.cc/V5P9-QW83].

[11] Id.

[12] See Kelsey Piper, The Rise of Meatless Meat, Explained, Vox (Aug. 30, 2019, 11:59 AM), https://www.vox.com/2019/5/28/18626859/meatless-meat-explained-vegan-impossible-burger [https://perma.cc/G4GL-3NCW].

[13] Alina Tugend, Is the New Meat Any Better Than the Old Meat?, N.Y. Times (Sept. 21, 2019), https://www.nytimes.com/2019/09/21/climate/plant-based-meat.html [https://perma.cc/W9QP-HFPT] (“For the average [meat-eating] person, it will be difficult to trade hamburgers for salad, and this next generation of companies is trying to reach the hard-core meat eaters.”).

[14] Id.

[15] Kelsey Piper, The Lab-Grown Meat Industry Just Got the Regulatory Oversight it’s Been Begging For, Vox (Mar. 9, 2019, 8:00 AM), https://www.vox.com/future-perfect/2019/3/9/18255806/fda-usda-lab-grown-meat-cell-based-vegan-vegetarian [https://perma.cc/RYE6-5NHN].

[16] Formal Agreement Between FDA and USDA Regarding Oversight of Human Food Produced Using Animal Cell Technology Derived From Cell Lines of USDA-amenable Species, FDA (March 7, 2019), https://www.fda.gov/food/domestic-interagency-agreements-food/formal-agreement-between-fda-and-usda-regarding-oversight-human-food-produced-using-animal-cell.

[17] Alina Selyukh, What Gets To Be a ‘Burger?’ States Restrict Labels on Plant-Based Meat, NPR (July 23, 2019, 3:57 PM), https://www.npr.org/sections/thesalt/2019/07/23/744083270/what-gets-to-be-a-burger-states-restrict-labels-on-plant-based-meat [https://perma.cc/Y9SU-5ECV].

[18] Id.

[19] Id.

[20] Id.

[21] Turtle Island Foods SPC v. Soman, No. 4:19-CV-00514-KGB, 2019 WL 7546141, at *1 (E.D. Ark. Dec. 11, 2019).

[22] Id. at § 2-1-301.

[23] Id. at § 2-1-302(7)(A).

[24] Id. at § 2-1-302(7)(B).

[25] Turtle Island Foods SPC, 2019 WL 7546141 at *1.

[26] Id.

[27] Id.

[28] Id. at 18.

[29] The four prongs of the Central Hudson test are: “(1) whether the commercial speech at issue concerns unlawful activity or is misleading; (2) whether the governmental interest is substantial; (3) whether the challenged regulation directly advances the government’s asserted interest; and (4) whether the regulation is no more extensive than necessary to further the governments interest.” Id. at 9–10 (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 566 (1980)).

[30] Turtle Island Foods SPC, 2019 WL 7546141at *23–24; see also Jenny Splitter, Got Food Label Confusion? FDA to Hold Public Meeting on Food Standards of Identity, Forbes (Sept. 5, 2019, 9:06 AM), https://www.forbes.com/sites/jennysplitter/2019/09/05/food-label-redux-fda-to-hold-public-meeting-on-food-standards-of-identity/#17af2a37599a (explaining that consumers are not confused about whether plant-based milks are dairy).

[31] Turtle Island Foods SPC, 2019 WL 7546141at *26.

[32] Id.

[33] Id. at *27.

[34]Id.

[35] Id.

[36] Marc Robertson, Court Loss Should Deter Speech Restrictions on Plant-Based Product Names, Forbes (Jan. 29, 2020, 12:23 PM), https://www.forbes.com/sites/wlf/2020/01/29/court-loss-should-deter-speech-restrictions-on-plant-based-product-names/#16d091513cca.

[37] Nathan A. Beaver & Brian P. Sylvester, What’s in a Name? The Plant-Based Foods Labeling Debate, Foley & Lardner (Oct. 8, 2019), https://www.foley.com/en/insights/publications/2019/10/whats-in-a-name-plant-based-foods-labeling-debate.

[38] Id.

[39] 21 U.S.C. § 341 (2018).

[40] Beaver & Sylvester, supra note 37; see also U.S. Food & Drug Admin., Public Meeting on Horizontal Approaches to Food Standards of Identity Modernization (Sept. 27, 2019), https://www.fda.gov/food/workshops-meetings-webinars-food-and-dietary-supplements/public-meeting-horizontal-approaches-food-standards-identity-modernization-09272019-09272019 (detailing a FDA meeting regarding modernization of food standards).

[41] 21 U.S.C. § 343(a) (2018). The language “in any particular” indicates that food labeling is read in its entirety. Thus, if one part of the label is “false or misleading,” the entire product is “misbranded.” Id.