PBFA and Upton’s Naturals challenge Mississippi law restricting plant-based and cell-cultured ‘meat’ labeling

The law [SB 2922]​​– which came into effect yesterday (July 1, 2019), stipulates that, “A plant-based or insect-based food product shall not be labeled as meat or a meat food product,”​ and that, “A food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat food product.”​

The ban provides no exceptions for using ‘meaty’ terms with qualifiers, such as ‘meatless meatballs,’  or ‘plant-based jerky’ and “only serves to create consumer confusion where none previously existed​,” claim the PBFA and Upton’s Naturals in a c​om​plaint​​ filed vs Mississippi governor Phil Bryant and agriculture and commerce commissioner Andy Gipson.

No reasonable consumer is confused by 'vegan bacon'​

 “In order to describe the foods in the clearest possible manner, Upton’s Naturals uses meat and meat product terms as part of the descriptions on its labels​ [eg. ‘vegan burgers,’ ‘vegan bacon’ and ‘vegan chorizo’],” says the lawsuit, which argued that banning terms such as ‘plant-based jerky’ “would fail any level of First Amendment scrutiny.”​

“No reasonable consumer would be misled by the way Upton’s Naturals uses these terms.”​

Plant-based companies are not trying to fool shoppers into thinking they are eating animal flesh, it added: “It would be a disaster for Upton’s Naturals if the public were to think that the company has started selling meat.”​

Law is designed to protect the meat industry, not consumers​

There are already consumer protection laws in Mississippi that prohibit misleading commercial advertising, noted the plaintiffs, who claimed SB 2922 was inspired by “powerful meat industry lobbying groups​” who have openly acknowledged that SB 2922 was designed “to protect the meat industry from competition​” – rather than protecting consumers - by forcing plant-based brands to use terms that make no sense to shoppers.

The complaint seeks an injunction to prevent the state of Mississippi from enforcing SB 2922 and seeks a declaratory judgment that SB 2922 violates the first and fourteenth amendments to the US Constitution.

PBFA: 'Whatever happened to the free market?'​

PBFA executive director Michele Simon said parts of the meat lobby were “attacking words on labels, instead of competing in the marketplace. Whatever happened to the free market? The Mississippi law would create unnecessary, confusing, and costly label changes that would stifle innovation and frustrate consumers.”​

Thus far, she added, PBFA’s efforts to tackle similar state-led initiatives in other states “have been largely successful, with most of the state bills introduced this year either being defeated or significantly narrowed in scope thanks to PBFA’s lobbying along with the support of our allies, both nationally and at the state level.”​

However, speaking to us in late May​,​ Simon acknowledged that plant-based brands were caught by surprise by the speed with which states started introducing these bills, given that there is no single ‘model bill’ state lawmakers are using as a template. 

“It​ was a surprise to all of us the number of states that came out at once given that it didn’t seem to be that orchestrated, as the bills are all slightly different. The wording is all over the place.”​​

Plant-based brands use a wide range of terms to describe their wares, with some referring to vegan or plant-based patties, burgers, crumbles or nuggets; others using terms such as ‘Vegan Chik'n Tenders’ or ‘meatless pieces;’ and some using brand names such as Beyond Beef (with the subheading, ‘plant-based ground’).

However, they all use qualifiers, from ‘meatless’ to ‘plant-based’ or ‘vegan,’ and there is no evidence consumers are confusing these products with meat from animals, argues Plant Based Foods Association executive director Michele Simon.

“No one is trying to trick consumers into thinking they are buying meat from animals.”​​

GFI: Mississippi is acting as word police​

Jessica Almy, director of policy at Washington DC-based nonprofit The Good Food Institute – who described the Mississippi bill as “a sad attempt to censor veggie burgers” - ​welcomed the lawsuit:

“We are optimistic that the federal court, which is required to uphold the US Constitution, will agree with the plaintiffs that this law is an unconstitutional attempt to censor commercial speech and harm the free market.​

“Mississippi is acting as word police in order to discourage consumers from buying products that they would otherwise buy and prevent new products — like cell-based meat — from coming to market in the state.”​

She added: “This law is a slippery slope and could open the door to all sorts of restrictive labeling. It doesn’t matter whether you care about veggie burgers, the question is whether you want the state to come in and control free speech like this.”​

What does this mean for cell cultured meat?​

When it comes to cell-cultured meat, the labeling of which will fall under the jurisdiction of the USDA​​​ (which will pre-approve label statements in the same way it does for meat from slaughtered animals), firms can argue that any state-level laws would be federally pre-empted, said Almy, who noted that the complaint challenging the Mississippi law only challenges the provision that censors plant-based foods,

“The USDA’s assertion of its authority over cell-based meat labels under the Federal Meat Inspection Act and the Poultry Products Inspection Act pre-empts all of these state laws.​​

"But the problem is, they​​ [the states proposing these bills] are going to continue to move forward unless there is a court decision that these laws are pre-empted, or unless a defendant raises that as a defense in litigation, or the USDA sends out a letter to the states telling them to stop.”​​

• Further reading: ​Plant-based and cell-cultured 'meat' labeling under attack in 25 states​​