Whether a plant-based product should be labeled as a “disc” or “burger” without additional clarification is at the center of three pending cases across the country, with one court already finding a state's labeling requirements were unconstitutional.
The latest challenge was filed by Tofurky against a Texas law signed by the governor earlier this year that went into effect Sept. 1; the law includes new definitions and regulations for the labeling of “cell-cultured” and “analogue” or plant-based food products. Texas also requires disclosure statements in “prominent type equal to or greater in size than the surrounding type” with terms like “analogue,” “meatless,” “plant-based,” “cell-cultured,” or “lab-grown.”
The Texas & Southwestern Cattle Raisers Association said in a statement to Agri-Pulse that the growing number of protein choices at the grocery store comes with a “greater need to equip consumers with information to help them know easily and quickly what they are buying to feed themselves and their families.”
Because animal proteins are required to follow numerous and stringent rules to ensure transparency, TSCA believes alternative protein producers should as well. Texas S.B. 664, the group said, “standardizes basic rules and guidelines for alternative proteins,” and these rules are “much less stringent than those required for traditional proteins.”
The Animal Legal Defense Fund and The Good Food Institute filed the complaint on behalf of Tofurky. The groups did not register or testify against the bill throughout the 88th Legislative Session, TSCA said. “At the end of the day, Texas & Southwestern Cattle Raisers Association stands by S.B. 664 as a fair law that advocates for consumers through transparency and clear labeling.”
Similar lawsuits have been filed challenging labeling laws in Missouri and Oklahoma.
Animal Legal Defense Fund Managing Attorney Amanda Howell said that in Missouri and Oklahoma, senators and representatives during the legislative debate process voiced the need to protect the states’ beef or cattle industry but didn't talk about protecting consumers.
“They talked about protecting an industry, which of course is unconstitutional,” she said. In Texas, there was some discussion about protecting consumers, but “without a single piece of evidence in the record of any consumer confusion,” she said.
Howell said consumers best understand the nature and contents of plant-based meat products when labels include meat terminology like “vegan sausage.”
“If you remove the word sausage and you call it like a veggie cylinder, they would no longer know what that product is,” she said.
Madeline Cohen, The Good Food InstituteMadeline Cohen, senior regulatory attorney for The Good Food Institute, argues that plant-based meat alternative producers are not trying to hide anything from consumers.
“They want their customers to know that these products are plant-based and that they don’t contain animal meat, but at the same time using terminology that consumers are already familiar with,” she said, such as “burger” or “hot dog” which she explained helps consumers understand the taste and texture and use of these products.
In a statement, Tofurky CEO Jamie Athos said Texans “deserve unfettered access to the foods of their choosing, and it is insulting to their intelligence — and contrary to the facts — to suggest that they are being misled into selecting plant-based options.
“Texans are smart enough to understand that ‘plant-based’ foods are, in fact, made of plants,” he said. “We hope the courts are likewise smart enough to see through this pretext of ‘confusion’ and hold unconstitutional these lawmakers’ efforts to install regulatory hurdles intended to stifle the growth of the plant-based industry and limit consumer choice.”
The Texas lawsuit, filed in the U.S. District Court for the Western District of Texas, challenges the labeling requirements under the Dormant Commerce Clause, Due Process Clause, Supremacy Clause and First Amendment right of free speech.
Audry Thompson, staff attorney at Penn State’s Center for Agricultural and Shale Law, said the plant-based supporters have expanded their challenges in recent lawsuits beyond just the First Amendment freedom of speech. “I think from a litigation standpoint they're trying to throw something against the wall and see if it sticks,” she said.
Howell said in Texas and in Oklahoma, ALDF is challenging that these labeling laws are discriminating against out-of-state plant-based producers in favor of supporting in-state meat producers but requiring additional labeling of their products.
Thirteen different state legislatures have taken slightly varied approaches in mandating labeling laws that plant-based and alternative meat companies said now create a patchwork of requirements that the companies said courts should step in and halt. Across the ocean, France has also issued a draft decree to ban the use of 21 different meat terms such as “steak,” “ham” and “spare ribs” but allows terms such as “bacon” or “sausage” if the products do not exceed a minimal level of plant proteins.
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But supporters of plant-based food development argue such laws are out of line.
“At the end of the day, state governments shouldn’t be the ones picking winners and losers in the marketplace,” Cohen said. “They should be letting consumers see these clearly labeled products and choose what they do and don’t want to buy.”
Cohen said the short implementation turnaround — a mere four months — of the Texas law is really a “logistical impossibility for companies.” In typical retail food distribution agreements, the companies that make plant-based meat alternatives hand over their food to a distributor, but don’t have a say in which states a nationwide chain distributes their product.
This creates a significant financial and economic impact for these companies to sell into states with varying labeling requirements, Cohen said.
“State consumer protection laws, as well as the Federal Trade Commission statutes are already protecting consumers from misleading labels. But they’re using these new laws to specifically target these small plant-based companies in order to benefit in-state agricultural interests,” she said.
Plant-based food companies filed legal challenges to the laws in Arkansas, Louisiana, Mississippi, Missouri, Oklahoma and now Texas, which vary in whether they prohibit commercial speech or mandate additional qualifications if a certain qualifier is used.
Audry Thompson, Penn State Center for Agricultural and Shale LawIn September 2022, a federal judge ruled that the Arkansas law, which specifically banned companies from using terms such as “veggie sausage” or “turkey-style deli slices” and levied $1,000 penalties for each individual product sold in the state, is unconstitutional.
Mississippi's implementing regulations were accepted by the plant-based companies as not discriminating and the court eventually dismissed the legal challenges; the other lawsuits are still pending.
Thompson explained the Arkansas and Louisiana laws prohibited language that could be used on the label, such as meat terms. “That’s restrictive and courts do not look on that favorably,” Thompson said.
Missouri, Oklahoma and now Texas have taken an approach that instead of banning speech, “it’s imposing onerous speech disclosure requirements,” said Howell. These states impose additional requirements than what is set by the Federal Food, Drug and Cosmetic Act, “which Congress passed intentionally so that producers can sell their products nationwide” without a patchwork of different package labeling requirements.
Thompson noted an Ohio labeling requirement for rBST could provide an important precedent moving forward in the meat labeling fight.
The U.S. Court of Appeals for the Sixth Circuit upheld Ohio’s attempt to require a qualifier statement be added that if a product claims it is non-rBST, it must also claim in the same font style, case and color that “no significant difference has been shown between milk derived from rBST supplemented and non-rBST supplemented cows.”
Thompson said this is comparable to the ways the laws were written in Texas, Oklahoma and Missouri that “mandates language as opposed to prohibits language.”
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