Meatless Meat

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We have blogged about Missouri’s meatless meat statute, most recently on June 4, 2020.  The statute purports to prohibit producers of plant- or lab-based “meat” from describing their products as such – e.g., bacon, burgers, or hot dogs.  Shortly after the statute took effect, the Missouri Department of Agriculture issued an interpretive bulletin asserting that the statute did not bar the use of these words, so long as there was clear disclosure about the true origin of the product.  This interpretation, of course, nullified the obvious purpose of the statute – to protect growers of conventional meat from competition.
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On November 11, 2020, we blogged about Oklahoma’s meatless meat statute.  Like similar statutes in other states, the primary purpose of the Oklahoma law was to protect traditional producer of meat and poultry from competition from plant- and cell-based producers of meatless meat.  Unlike other states, however, Oklahoma did not attempt to ban the use of the word “meat,” or other descriptors such as “bacon” or “burger.”  Oklahoma merely required producers of meatless meat to proclaim its origins in labeling of the same size and font as the product’s name.

On November 19, 2020, the District Court denied plaintiffs’ motion for a preliminary injunction.  The Court held that the governing case was Zauderer v. Office of Disciplinary Counsel, which allows the government to require disclosure of purely factual and uncontroversial information, so long as it is reasonably related to a substantial government interest and not unduly burdensome.
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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.
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On October 7, 2020, we blogged about the request by the Harvard Law Animal Law and Policy Clinic that the Department of Agriculture (USDA) and the Food Safety Inspection Service (FSIS) refrain from proposing regulations governing so-called meatless meat products: foods that resemble traditional meats and poultry but derived from cell culture or plants.

On October 19, 2020, two industry groups asked the USDA to do the opposite. The Alliance for Meat, Poultry and Seafood Innovation (representing cell-based producers) and the North American Meat Institute (representing traditional producers) requested the USDA to solicit the data needed to establish mandatory labeling requirements for meatless meat.

Their letter noted that the launch date for marketing cell-based meat is fast approaching. The producers of such products want clear and truthful labeling that enables consumers to distinguish them from conventional meat and disparages neither kind of product.
Continue Reading Meatless Meat Regulatory Update

We have blogged on several occasions, most recently on June 19, 2020, about so-called “meatless meat” statutes – statutes intended to regulate the labeling of products resembling traditional meat or poultry but produced from plant- or lab-based materials. The Food Safety and Inspection Service (FSIS) of the Department of Agriculture has concurrent jurisdiction over such matters along with the FDA, and the agencies are contemplating issuing regulations.

The Harvard Law Animal Law and Policy Clinic (ALPC) recently asked FSIS to postpone any regulations in the area of lab-based meat until it has a better understanding of the safety of such products and has had an opportunity to review proposed labels.

The idea of lab-based meat was first bruited in 1930. The first patent for such a product was awarded in 1999 and numerous start-ups claim that they are ready, or almost ready, to sell lab-based meat commercially.
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On April 14, 2020, we blogged about Tofurky’s appeal concerning Missouri’s meatless meat statute, which purports to prohibit advertising plant- or lab-based products as meat.  The State persuaded the District Court that an advisory memo by the State Department of Agriculture limited the statute to actual misrepresentations and full disclosure of the origin of the product would avoid sanctions.
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