We have blogged on several occasions, most recently on June 4, 2020, about state laws attempting to shield traditional producers of meat and poultry from competition from producers of plant- and cell-based meat. These statutes typically attempt to prohibit such producers from calling their product “meat.” Most such statutes have been stricken, in whole or in part, on First Amendment grounds.

The latest state to enter the fray is Oklahoma. Unlike other states, Oklahoma did not prohibit the marketing of meatless meat as meat. Instead, it required disclosure of the product’s vegan status in “type that is uniform in size and prominence to the name of the product.” Violators could be liable for $10,000 fines and even jail time.

The practical effect of this statute, however, is to prohibit sales of meatless meat in Oklahoma. No other state imposes such a requirement, so the producer has a choice: redesign the entire label for Oklahoma sales or stay out of the state. In addition, as a matter of marketing strategy, producers want the largest type for the name of the product – not a disclosure.

Upton’s Naturals and the Plant-Based Foods Association have sued to enjoin the statute. They argue that the statute compels speech. Under the First Amendment, states have the right to compel such speech only when necessary to prevent deception. Plaintiffs argue there is nothing misleading about their current labels, given that they clearly disclose the origin of the product. At the very least, therefore, the statute must survive intermediate scrutiny to satisfy the First Amendment.

Intermediate scrutiny required a substantial government interest, a restriction that directly and materially advances that interest, and cannot be more extensive than necessary. Plaintiffs argue that the statute does not advance a governmental interest because the current labels are not misleading and the additional disclosure does not advise a reasonable consumer of anything he or she does not already know. Oklahoma already has laws that prohibit misleading advertising so the additional disclosure the statute requires is more restrictive than necessary.

The state’s defense of the statute takes a very different approach. It argues that, absent disclosure, calling a plant- or cell-based food “meat” is inherently misleading. And the Court’s First Amendment jurisprudence recognizes that states can require disclosure necessary to remedy inherently misleading statements. From the state’s perspective, the statute merely regulates how a producer must make that disclosure.

The plaintiffs argue in response that a communication is inherently misleading only if it is incapable of being presented in a way that is not deceptive – and that the existing label makes clear the origin of the product. That is not a complete answer, however, because both sides agree that some form of disclosure is essential not to make the label misleading.

We have little doubt that the primary if not exclusive motive for enacting the statute was to protect traditional meat producers. But the state’s argument that it is merely telling non-traditional producers how to avoid inherently misleading claims is an ingenious one that may well pass muster. We regard this case as a close one.

The District Court conducted a hearing on plaintiffs’ motion for a preliminary injunction on October 28, 2020, less than a week before the effective date of the statute on November 1. We will monitor developments.