Plant-based and Alternative Foods
The American palate is changing. Around the country, people are now beginning to embrace a variety of diets and eating habits, including eating plant-based foods. With trends like “meatless Mondays” taking off—and people invoking all manner of reasons to avoid eating traditional meat, with concerns ranging from personal health to the environment—meat producers perceive an existential threat. Perhaps, then, it is no coincidence that many states that are home to the meat industry have passed bills prohibiting meat alternatives—including plant-based meat and cell-cultured “clean” meat—from being labeled as “meat,” and from using meat analogues, prohibiting, for example, “veggie sausage.” Some states have even gone as far as to criminalize labeling meat alternatives with meat descriptors. And the problem is not just limited to meat, and it’s not just at the state level. It seems wherever there is an alternative food, there is an orthodoxy, and legislation is not far behind. This blog will take us on the journey through the alternative foods debate—where battles over the butcher shop, the dairy aisle, and other parts of your supermarket are being fought out in legislatures, courts of law, and courts of public opinion alike.
Plant-based meat is a vegetable-based meat substitute that generally tastes very similar to animal meat and essentially mimics it. In contrast, cell-cultured meat, also known as “clean” meat, is actual animal meat that is grown in a lab from a cell sample. Given health benefits, environmental concerns, and animal-welfare issues, many American consumers—carnivorous, vegetarian, and vegan alike—are happy to have these possible alternatives, and they are gaining popularity. So where is the problem? For one thing, some stakeholders in the meat industry have identified the new alternative products as an existential threat. And perhaps in response to lobbying from meat-industry actors, state legislators—mainly in meat-producing states—have come to see alternative meat-products as potentially misleading and confusing to consumers.
Laws
As a general matter, there appear to be two basic types of meat-labeling laws. On the one hand, some laws provide “truth in labeling” standards that would require plant-based or cell-cultured meat products, not derived from conventional animal meat, to be described without using the term “meat” or similar terms that refer to products historically made from animal meat. Generally, these laws punish violators only with civil penalties. Differently, other laws explicitly forbid the labeling of food products derived from plants or cell cultures as meat or a meat food product, and expose violators to criminal liability—a misdemeanor in Missouri, for example—and possibly a fine. While different, these laws do share common attributes, including the designation of alternative food-products that are labeled as meat products as being mislabeled or misbranded.
Milks
Non-dairy “milks”—including soy milk, almond milk, oat milk, coconut milk, and cashew milk—have caused as much disruption to the dairy industry as “clean” and plant-based meats have wreaked on the meat industry, if not more. Just as the traditional meat industry threatens alternative meats, non-dairy milks face nationwide opposition from their own traditional special interest: the dairy industry, which totes cow’s milk as the only “real” milk. But for many Americans, cow’s milk is not an option, for reasons including lactose intolerance and dietary choice. As the non-dairy movement gains steam, however, the dairy industry is fighting back, with arguments regarding the health benefits of dairy products versus alternatives.
Foods
Traditional dairy interests have also caused legislative and regulatory activity at state and federal level. In particular, governments have expressed a level of concern regarding consumer confusion between non-dairy milks and dairy milk. Nutritional value is not identical across dairy and non-dairy options, raising concern that consumers could misapprehend which “type” of ““milk” can be relied upon for certain nutritional benefits. And as in the meat debate, the traditional dairy industry is concerned that consumers may be “duped” into accidentally choosing an alternative product based on its labeling. On the other hand of the equation, though, supporters of dairy alternatives have cast their labeling references to “milk” as truthful commercial speech, such that government action in this space could be as potentially unconstitutional.
Articles
Other Facets of the Alternative Foods Debacle
The alternative foods movement has now expanded widely enough that the Plant Based Foods Alliance has introduced its own certification mark for plant-based foods, and the controversy over alternative foods now goes beyond alternative meats and alternative milks. In particular, there has been some controversy in recent years relating to “vegan mayonnaise,” which is prepared […]
Litigation Concerning Non-Dairy Milks
On the litigation front, cases involving alternative milks generally confirm that the products are not, for the purposes of current law, considered deceptive. Indeed, it appears there has been some litigation activity (mostly in California federal courts) concerning whether non-dairy milks such as soy milk and almond milk have been deceptively labeled or marketed as […]
Possible Federal Issues: FDA and Department of Agriculture Jurisdiction
Beyond the state arena, recent federal initiatives may impact the alternative-foods industry writ large. One potential regulatory pitfall is the concurrent jurisdiction in this area between the FDA and the U.S. Department of Agriculture. The FDA has wide-ranging regulatory authority over most food products, including labeling disputes, while the USDA has primary authority over meat, […]
Litigation Over Labeling Laws
As an increasing number of meat-labeling laws are enacted and go into effect, the alternative foods industry is gearing up to go on the offensive, including by filing suits to block the laws and potentially have them declared unconstitutional and unenforceable. In order to fight these battles, industry players such as The Tofurky Company have […]
Possible State Regulation
Alternative milks have also faced legislative action at the state level. Interestingly enough, in 2018, North Carolina passed a law that provides for an embargo in the state of all plant-based products “mislabeled” as milk, but only if eleven states in a compact of southern states pass a similar law. As of 2019, other members […]
Effects of Labeling Laws
For the proponents of meat-labeling laws, the laws are sound as a matter of policy—geared towards protecting consumers from deceptive products, including the possibility of accidentally purchasing an alternative product during a quick run to the grocery store. They fear alternative products may be misleading and potentially harmful to consumers. The meat-labeling laws themselves, however, […]
Different Labeling Laws
People like to say that the states are microcosms of democracy—a proving ground for what might work on a national scale, with state-level action suitable to test and explore a variety of different ideas. Meat-labeling laws reflect this. As a result, the laws come in many different shapes and sizes. Across the board, though, the […]
FDA Antagonism Towards Non-Dairy Milk
In a 2018 conversation about the Food & Drug Administration’s regulatory agenda, then-FDA commissioner Scott Gottlieb issued a shot-across-the bow to the nondairy industry, stating: “an almond doesn’t lactate.” And around the time of his comment, Commissioner Gottlieb announced in an FDA press statement that he would have the FDA study “the wide variety of […]