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Legal Battles Over Labeling Laws

October 6, 2022
Time to read: 7 minutes

Introduction

The market for plant-based meat and dairy alternatives is on a steady incline. The total plant-based food market was valued at $7 billion in 2020, a 27% increase from the year before. This uptick in revenue is partly due to the increased investments into the market– $3.1 billion was invested into plant-based food companies in 2020, which allows these companies to develop products that more closely mimic the smell, taste, and texture of meat and dairy products. It's also due to an increased awareness among consumers of the environmental impacts of animal agriculture, the treatment of animals and workers on factory farms, and the potential health risks of a meat and dairy-heavy diet. Covid-19, human rights campaigns, and a record setting wildfire season also heightened consumer awareness of the power of our food choices. 

Together we can end factory farming.

Underlying these developments is an ongoing legislative and judicial debate on how plant-based companies should market their products. Representatives of the meat and dairy industry argue that plant-based food companies are not clear enough labeling their products and even accuse them of purposefully trying to confuse consumers to increase product sales. In this article I will summarize the arguments and outcomes of just a few labeling cases brought against plant-based food companies on the state and federal level. 

Dairy

Miyoko’s Creamery’s Battle for Butter 

Miyoko's Creamery is a plant-based dairy alternative company that sells dairy-free butter and cheese. In December 2019 the Milk and Dairy Foods Safety (MDFS) Branch of California’s Department of Food and Agriculture sent a letter to the company ordering that they stop using “butter”, “lactose-free”, “hormone-free”, “cruelty-free”, and the phrase “revolutionizing dairy with plants” in their marketing. The letter alleged that the company was in violation of state and federal law, citing U.S. Code § 321a of the 1906 Food and Drug Act, and the California Food and Agriculture Code 38955, which prohibits imitation milk products from using pictures, symbols, or texts that depict or associate themselves with dairy and dairy production.

MDFS argued that through the use of dairy-related terms and by having a photo of a person hugging a cow on their website, the company violates federal and California law. Three months later, Miyoko’s sued the state for violating their First Amendment rights. The company argued that the demands made by the state restrict their freedom of speech by prohibiting them from accurately conveying the identity and mission of their products, and would cost the company over one million dollars to change their labels and marketing. A representative for the Miyoko’s argued that the state’s proposed changes would create consumer confusion and hurt sales, as “an average consumer would have no idea when to use ‘vegan spread’ or ‘cultivated cashew cream’-- and thus be unlikely to buy those products”. Moreover, the company expressed that the state’s attempt at censorship represents its willingness to bow to dairy industry lobbyists at the expense of plant-based food companies. This exposed a conflict of interest: the MDFS is charged with supporting agricultural industries in the state, with California standing as the number one dairy milk producer in the U.S. 

In the end, the Northern District Court of California ruled that Miyoko’s Kitchen can use all of the terms existing on their products’ labels and website except for “hormone free”, because of the hormones in the plants they use. The National Law Review calls this case “a win for the dairy alternative industry”. However, there is little indication that the rulings of this case will stay true on a federal level or in other states, especially with the introduction of bills like the DAIRY PIDE Act.

DAIRY PRIDE Act

The “Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese To Promote Regular Intake of Dairy Everyday Act”, or DAIRY PRIDE Act was reintroduced with bipartisan support to the U.S. Senate in April 2022 by Tammy Baldwin (D-WI) and Jim Risch (R-ID) and in the House by Representatives Peter Welch (D-VT) and Mike Simpson (R-ID). If passed, it would become illegal for all plant-based dairy alternative products in the country to be labeled with dairy terms such as milk, butter, yogurt, and cheese. Proponents of the bill argue that the labels on plant-based dairy imitation products are misleading to consumers and hurt dairy farmers.

“Dairy farmers, already struggling to survive, are facing a growing threat due to the misleading practice of marketing plant-based products as milk and dairy products,” said Representative Welch. “These products do not meet the FDA’s definition of a dairy product because they do not have the unique attributes and nutritional values provided by dairy. Our bill would require the FDA to enforce its existing definition of milk* and dairy products so that consumers can make more informed choices.” - Senator Baldwin's Website

*The FDA defines milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows”. 

Proponents of the bill cite findings from the 2020 Dietary Guidelines for Americans, published by the U.S. Department of Health and Human Services and the U.S. Department of Agriculture, which report that most Americans aren’t consuming the federally recommended intake of dairy. They argue that plant-based “milk” “conveys a nutritional equivalency that is not accurate” and interferes with accessing the necessary nutritional requirements for healthy development. The USDA, charged with promoting the agricultural industry, including dairy, boasts the health benefits of milk, but many physicians challenge their claims. Independent research, which is not funded by the government or dairy producers, links the high-fat content and hormones in dairy products to breast and prostate cancer, and the high concentration of saturated fats in dairy products with heart disease. The claim that dairy intake improves bone heatlh,one of the claimed benfits most touted by the dairy industry, is also a bit murky, with some studies even finding that dairy consumption negatively impacts bone health. Because of findings like these, many physicians argue that dairy is not essential for proper nutrition and can even harm consumers. 

Meat

Kansas & Plant-Based Meat

On May 5, 2022 the governor of Kansas approved a bill, Substitute for SB 261, which prohibits the use of identifiable meat terms on the labels of plant-based products without proper qualifying language to indicate that products do not contain meat. The bill, in effect since June 1st, requires that the labeling of plant-based meat analogs bears, “in type of uniform size and prominence, the word, "imitation," and, immediately thereafter, the name of the food imitated”; or, if the product utilizes a meat term, it must have a disclaimer “in a prominent and conspicuous font size, in close proximity to the identifiable meat term, stating one of the following: (A) "This product does not contain meat"; (B) "meatless"; (C) "meat-free"; (D) "vegan"; (E) "veggie"; (F) "vegetarian"; (G) "vegetable"; (H) "plant-based"” or another approved qualifier.

The bill’s bare bones structure comes from HB 2530, which was debated in the house committee on agriculture in February 2022 and never passed. One of the two proponents that presented for the committee was Aaron M. Popelka, the vice president of legal and governmental affairs for the Kansas Livestock Association. In his testimony, he argues that plant-based food companies like Beyond Meat and Impossible Foods deceptively market their products “at the expense of livestock producers’ reputations.” He explains that these companies “use deception to sway customers”, purposefully confusing them in order to make them think their products contain meat when they don’t. Popelka cites results from a survey completed by the association’s national affiliate, the National Cattlemen’s Beef Association, one of the largest beef industry lobbying groups. Their survey showed that 10 percent of consumers surveyed believed that Beyond Beef and the Impossible Burger were meat products; another 22 percent and 16 percent thought Beyond Beef and the Impossible Burger, respectively, were a meat/plant blend; and 27 percent and 33 percent thought Beyond Beef and the Impossible Burger, respectively, contained animal products, but not meat”. For this reason he argues that “plant-based” is not a proper signifier of a meatless product. 

Representing the interests of plant-based companies, the Plant Based Foods Association (PFBA) submitted an opposing testimony. They call the bill “unnecessary, unconstitutional, and misguided”. PFBA argues, “plant-based meat companies already have every incentive to label their foods with non-misleading terms that make it clear their products do not contain animal meat because this is what attracts consumers to their foods.” They express that consumer confusion has never been encountered in their experience selling products in Kansas. They argue that this bill, and others like it, restrict the freedom of speech of plant-based meat companies by making it illegal for them to accurately convey the nature of their products to consumers who want meat substitutes, and create undue financial burden.

REAL MEAT Act

A bill called the “Real Marketing Edible Artificials Truthfully Act of 2019”, or REAL MEAT Act, had a similar aim on the federal level. If passed, it would  require plant-based beef  products to place “imitation” on their labels. It has not been reintroduced after 2019, but it demonstrates how the federal government might try to regulate plant-based meat labeling. The REAL MEAT Act  was introduced by U.S. Senator Deb Fischer (R-NE) and Representatives Roger Marshall (R- 1st Dist., KS) and Anthony Brindisi (D - 21st Dist, NY). Senator Fischer explained that the bill is intended to protect consumers from deceptive marketing practices by plant-based companies and to hold plant-based companies to the same food safety and labeling standards as beef companies adhere to. Senator Fischer received public support for the legislation from the president of the National Cattlemen’s Beef Association, Jennifer Houston. Houston stated “It’s clear that fake-meat companies are continuing to mislead consumers about the nutritional merits and actual ingredient composition of their products. We commend the efforts of Senator Fischer on introducing this legislation, which would end deceptive labeling of fake meat products and allow cattle producers to compete on a level playing field.”

Conclusion

In the past few years, there has been continuous legal debate over how plant-based food products should be labeled, and whether or not they should be able to use terms like beef, burger, milk, and cheese. Cases over labeling regulations share common arguments and only slightly vary in outcomes. Representatives of meat and dairy producers advocate for stricter regulations on the words that plant-based food producers should be allowed to use in their marketing. They argue that plant-based companies misleadingly appropriate meat and dairy terms and create consumer confusion, which impacts consumers’ nutrition and farmers' wellbeing.  Representatives of the plant-based food industry argue that these restrictions create more consumer confusion than they claim to alleviate and that plant-based companies have no incentive to pretend to contain meat or dairy. They challenge the constitutionality of the restriction of certain terms on their labels, citing their first amendment rights and the excessive financial hurdles of changing their already clear labels. 

To put an end to this debate, the federal government should take quick and fair regulatory action. This way, plant-based companies in all fifty states can be held to the same standards of production and move forward without timely and expensive legal battles.

Gracie Darlington is a senior at Northwestern University studying learning and organizational change and environmental policy and culture. She is a college advocate at FFAC, passionate about animal welfare, environmental justice, and her two guinea pigs.

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