How plant-based companies are fighting back against label censorship
The market for plant-based meat has seen rapid growth in recent years, with dollar sales growing 29 percent in two years from 2017 to 2019. Many consumers—omnivores included—now consume plant-based meats at least sometimes, and even those who don’t partake have at least heard about the popular new meatless burgers and veggie sausages taking grocery shelves and menus by storm.
Some in the conventional meat industry view this trend as a problem for their own bottom lines. But rather than competing for consumers’ dollars by advertising their own products, they want to tilt the playing field against the new plant-based competition using the coercive power of state censorship.
What are label censorship laws?
Over the past few years, some lobbyists have sought to prevent plant-based producers from using “meaty” words to describe their plant-based products, bringing their linguistic grievances to legislators across the United States. For example, because many consumers associate the word “burger” with a common meat product, these special interests contend that some consumer somewhere might not know what a “veggie burger” is. Therefore, the argument goes, plant-based meat producers should be legally prohibited from using any meat-evoking language to describe their products. A handful of states have answered this call by enacting label censorship laws. Under these laws, instead of “veggie burgers” and “plant-based sausages,” alternative protein companies might have to use awkward terms like “veggie disks” or “plant protein tubes” to describe their products.
Label censorship laws violate free speech.
Nonprofit groups across the political spectrum—including GFI, the Animal Legal Defense Fund, the American Civil Liberties Union, and the Institute for Justice—have sued on behalf of plant-based meat producers, including Tofurky and Upton’s Naturals, to have these new label censorship laws struck down.
The main legal issue raised in these lawsuits is the First Amendment’s protection of free speech interests—including both plant-based producers’ right to speak freely and clearly to consumers, and consumers’ own interest in receiving easy-to-understand information about products.
Forcing plant-based producers to label their products “protein disks” instead of “burgers” would both restrict their free speech rights and create confusion for consumers. For this reason, these state label censorship laws are unconstitutional, which means judges can (and should) invalidate the laws and prevent states from enforcing them against plant-based producers.
Plant-based companies are challenging label censorship.
So far, the only court to reach the free-speech issue has agreed with the plant-based challengers. In a case challenging an Arkansas law, Tofurky—represented by the ACLU, GFI, ALDF, and a brilliant team of local lawyers—won a preliminary injunction that declared the law likely unconstitutional on free-speech grounds. The state recently agreed to make that order permanent.
Other state litigation has thus far avoided the constitutional issues. In Mississippi, the state agreed with Upton’s Naturals and the Plant Based Foods Association that the state’s law should not apply to foods that are clearly labeled as plant-based, and the lawsuit settled when the state issued a regulation to protect plant-based products. In Missouri also, the state argued that the law’s criminal prohibition against “misrepresenting a product as meat” does not apply to plant-based products that are clearly labeled like Tofurky’s. The challengers maintain the state’s law could still be used to target plant-based producers, and this case is currently pending before the Eighth Circuit Court of Appeals.
Fortunately, there are signs that label-censorship fever is breaking. After a rash of these laws passed in 2018 and 2019, 2020 has seen only one law pass in Oklahoma. And Oklahoma’s is a strange new type of labeling law that tries to micromanage font sizes for disclosures on plant-based products. That law was recently challenged by Upton’s Naturals in a suit filed by the Institute for Justice and the Plant Based Foods Association.
Finally, earlier this month, GFI teamed up with ALDF to file another lawsuit on behalf of Tofurky against Louisiana’s 2019 label censorship law that took effect on October 1, 2020. Louisiana’s law is extremely similar to the Arkansas law that a federal judge has already blocked, with some particular Louisiana-specific twists. For example, in addition to the usual meaty suspects like burgers and sausages, species like crawfish and shrimp are included in the state’s labeling ban. And other agricultural products grown in Louisiana received special protection as well, including rice (with the supposed threat of lower-calorie rice alternatives made from plants like cauliflower) and cane sugar (with the supposed threat of non-sucrose sugars and low-calorie sweeteners).
We’re committed to ending unnecessary and unlawful label restrictions.
With this ever-lengthening list of pedantic speech restrictions, one could wonder why legislators would stop there. After all, crawfish aren’t truly “fish,” and buffalo shrimp aren’t actually tiny buffalo. But of course the real principle driving these laws isn’t some imaginary consumer confusion about common words or phrases, but rather the protection of a select set of state-favored industries from competition.
Perhaps the censorship outbreak has finally run its course because legislators have begun to recognize that these proposals are both ridiculous and unconstitutional. Or perhaps tying up state resources in losing court battles just makes no sense while states are busy facing budget crises and battling a pandemic. But should any other states consider joining this censorship charade, GFI and others stand ready to protect producers and consumers from governmental overreach that only serves particular industries, not the public interest.
Explore GFI’s work to ensure a free and fair regulatory landscape for the alternative protein industry in the United States and internationally.