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  • Missouri was the first among many states, including Arkansas, Louisiana, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming, to enact laws restricting plant-based and cell-cultured products from being labeled as “meat.”  As reported here, Turtle Island Foods (Tofurkey brand), in conjunction with non-profit advocacy groups, filed a lawsuit on August 28, 2018, which is the date Missouri’s law took effect, alleging First Amendment violations.  The plaintiffs requested a preliminary injunction on October 30, 2018.  Before a ruling was made on the injunction request, litigation was suspended for negotiations but then resumed in July 2019 after settlement discussions failed.
  • AP News reported on October 4, 2019 that U.S. District Judge Fernando Gaitan Jr. of the Western District of Missouri denied the request for a preliminary injunction because Tofurkey will not be affected by the law in question.  Specifically, as Missouri is not expected to prosecute where a non-meat product label using a defined “meat” term also bears a qualifier, such as “vegetarian,” “plant-based,” or “cell-based,” the Judge found there is no risk of prosecution for the plaintiff and no burden from having to change labels because the current labels disclose that Tofurkey products are plant-based.  A reported statement from Jessica Almy, an attorney in the case and the Director of Good Food Institute (GFI), a co-plaintiff, however, indicates that GFI has appealed the ruling.  In contrast, other plaintiffs in a similar situation will consider dropping a lawsuit in Mississippi upon adoption of a proposed regulation permitting “meat” terms in that state on labels that also use qualifiers.
  • In addition to plant-based products that are the subject of ongoing litigation in Missouri and other states, cell-based products derived from muscle tissue cultured in vitro from animal cells are also targeted by states’ meat labeling laws.  Cell-based products remain in the research and development phase and, thus, are not truly represented in the current litigation against state meat labeling laws.  It is likely, however, that yet-to-be developed federal labeling regulations will ultimately preempt the state laws.  In this regard, we have reported that five cell-based meat and seafood companies have formed a coalition to represent the industry’s interest amidst regulatory uncertainty.
  • The American Civil Liberties Union (ACLU), the Good Food Institute, the Animal Legal Defense Fund, and the ACLU of Arkansas recently filed a complaint on behalf of Turtle Island Foods (Tofurkey brand), challenging an Arkansas law that prohibits the representation of plant-based and insect-based products as “meat” or related terms (e.g., “beef,” “roast,” and “sausage”). The law covers all synthetic products derived from plants, insects, or any other source, as well as products grown in a laboratory from animal cells. In addition to these specific provisions, the law amends Arkansas Code Title 2, Chapter 1 to include a broad prohibition on “utilizing a term that is the same as or similar to a term that has been used or defined historically in reference to a specific agricultural product.”
  • The lawsuit was filed on July 22, 2019—two days before the Arkansas law came into effect. In the complaint, Tofurkey claims that the law creates consumer confusion and violates the Free Speech Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the dormant Commerce Clause.
  • The Arkansas law is one of many state laws aimed at restricting the ability of companies to use “meat” and similar terms on the label of their plant-based, insect-based, or cell-based products. This challenge is Tofurkey’s second labeling lawsuit, after the company filed suit in Missouri over a similar meat labeling law. A group of plant-based food producers also recently challenged a Mississippi labeling law with similar provisions. In addition to state activity, the Food and Drug Administration (FDA) has taken steps to formulate a path forward on plant-based products, and recently sought comments on the use of dairy terms—such as milk, yogurt, and cheese—in the labeling of plant-based products. We will continue to monitor this active area of legislation and regulation and report on significant developments.
  • Arkansas recently joined the states that prohibit marketing a product as “meat” if it is not derived from livestock or poultry. Arkansas Governor Asa Hutchinson signed HB 1407, titled, “To Require Truth in Labeling of Agriculture Product Are Edible by Humans,” into law (Act 501) last month. Significantly, Arkansas Act 501, also bans manufacturers from marketing a product as rice if it doesn’t contain rice. “Rice” is defined as “the whole, broken, or ground kernels or by-products obtained from the species Oryza Sativa L. or Oryza glaverrima, or wild rice, which is obtained from one of the four species of grasses from the genus Zizania or Proteresia.” (For more information, see our blog on Arkansas’ resolution calling for a standard for rice.)
  • Readers of our blog are aware of the ongoing cell-cultured and plant-based meat labeling debate—both at the federal and the state level and the emergence of plant-based meat products. Missouri was the first state to limit the use of the term “meat” to products derived from livestock or poultry (see Mo. Rev. Stat. § 265.494(7)). Similar laws have since been passed by Wyoming (SF0068 was signed by the governor on Feb. 26, 2019) and South Dakota (SB68 was signed by the governor on March 18, 2019). Other states that are currently considering legislation that would prohibit marketing a product that is not derived from livestock or poultry as meat include Arizona, Nebraska, Tennessee, Colorado, and Virginia.
  • The Arkansas Truth in Labeling Law imposes a $1,000 fine for each violation. The new law will take effect 90 days after the 2019 session ends. Arkansas produces 49% of the rice supply in the U.S. and in 2018, 1.4 million acres of rice were harvested in the state (University of Arkansas Div. of Agriculture). We will continue to monitor and report on regulatory activity in this area.
  • The Missouri Senate has passed an omnibus spending bill that adopts SB 977, the state bill that prohibits the marketing of plant-based meat analogs with the term “meat.”  The bill has been passed by the Missouri House and now goes to the governor for signing.  The bill had the support of the Missouri Farm Bureau, Missouri Cattlemen’s Association, and the Missouri Pork Association and was opposed by the Plant Based Foods Association.
  • The Missouri law comes on the heels of a similar law that passed on April 13, 2018 in France (Amendment No. CE2044), which prohibits the use of terms including filet, bacon, or sausage to be used for meatless products.
  • Similarly, Arkansas recently passed a resolution calling for a standard for rice (that would prohibit the marketing of riced cauliflower, for example, as “cauliflower rice”).  At the federal level, the Dairy Pride Act seeks to limit the ability to market non-dairy alternatives to milk with terms like milk, yogurt, and cheese.  These initiatives may mark a trend of increased state and federal activity on standards of identity and naming of foods.
  • Several states have recently introduced or passed legislation related to raw milk, reflecting a growing interest in unpasteurized milk despite the fact that raw milk can carry harmful bacteria such as Salmonella, E.coli, and Listeria, posing serious health risks. The U.S. Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) strongly advise against consuming raw milk due to these dangers and have implemented regulations to limit its sale. 
  • Despite the long-standing position at both agencies, the new Secretary of the Department of Health and Human Services (HHS) Robert F. Kennedy Jr., has been a vocal advocate for raw milk promoting its benefits and criticizing regulatory restrictions.  His support has brought renewed attention to the raw milk movement, influencing legislative efforts.
    • Arkansas Bill HB 1048: This bill would allow the sale of raw goat milk, sheep milk, and whole milk directly to consumers at the farm, at farmer’s markets, or via delivery by the farm.
    • Utah Bill HB414: This bill has passed the House and is now before the Senate.  This bill establishes enforcement steps for raw milk suspected in foodborne illness outbreaks, aiming to protect consumers.
  • Keller and Heckman will continue to monitor any developments related to the regulation of raw milk.
  • In a 16-page order, U.S. District Judge William H. Orrick dismissed with prejudice customer Angela Kennard’s putative class action she filed last year against Kellogg Sales Co. over its use of the term “veggie” in several of its MorningStar Farms line of meatless products such as its burgers, hot dogs, chicken nuggets, patties, sausage links, bacon stripes, chicken wings and more. As our readers may recall, we reported on the Morningstar Farms “veggie” product labeling suit in April after Kellogg moved to dismiss the amended suit, citing several decisions in similar false labeling suits, such as the opinion issued by the Ninth Circuit in Becerra v. Dr Pepper/Seven Up Inc., where the panel ruled no reasonable customer would believe the company’s use of the term “diet” promised weight loss or management.
  • Plaintiff Kennard alleged Kellogg’s Morningstar Farms “veggie” products mislead consumers because the word “veggie” indicates that the main or only ingredients in the products are vegetables or made from vegetables, adding that customers she surveyed said they largely understood “veggie” to refer to vegetable-based products. Plaintiff accused the food and beverage company of violating California’s False Advertising and Unfair Competition laws, as well as a myriad of federal rules regulating the labeling of food products, and breaching warranties. However, on September 15, the  Northern District of California decided that Kellogg’s use of the term “veggie” on its labels is, at most, ambiguous and could refer to meat substitutes.
  • Judge Orrick said he didn’t think the term “veggie” on the products’ labels was false, misleading or misbranded or that it violates any federal food labeling requirements or state laws. The term “veggie” is ambiguous in the way it is used on the packaging, and the photos and information on the packaging doesn’t convey the product uses any particular vegetables. “I agree that the [Plaintiff’s’] allegations are implausible and do not support a reasonable inference that some significant portion of consumers would be misled into thinking the VEGGIE products are made primarily of vegetables as opposed to being vegetarian meat substitutes made from grains, oils, legumes, or other ingredients,” Judge Orrick maintained. Additionally, the product packaging features items that imitate meat, and consumers can readily identify the actual ingredients in the products on the packaging, the judge said.
  • In recent years, laws have been passed all over the country that restrict the use of the term “meat” in product labeling, including in Missouri, Arkansas, Oklahoma and others. For example, Missouri passed a law in 2018 prohibiting a seller or advertiser from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Similarly, many of these other states’ laws require that only foods derived from food-producing animals may contain labels with terms like “meat, “burger,” “sausage” and the like.
  • In light of these recent labeling lawsuits and related legislation, marketers must be mindful of any representations they are making — whether in words or pictures — that might convey claims about a product’s contents. Keller and Heckman will continue to follow and report developments relating to the growing number of labeling claims challenges.
  • On August 10, 2021, the Northern District Court of California ruled (subscription to Law360 required) that California regulators cannot prevent Miyoko’s Kitchen, a vegan dairy-alternative company, from using terms like “butter,” “lactose free,” “cruelty free,” and “revolutionizing dairy with plants” on its labels.
  • By way of background, in December 2019, Miyoko’s Kitchen received a letter of complaint from the California Department of Food and Agriculture that ordered the company to stop calling its products “butter” or claiming they are “cruelty and animal free.” The vegan dairy company then sued the state in February 2020, alleging the state is violating its First Amendment rights.
  • As part of its defense, California presented a 2018 study that found 26% of consumers misidentified plant-based cheese products, but U.S. District Judge Richard Seeborg noted that 19% of its participants were also confused by animal-based cheeses.
  • The court ruled in favor of the California Department of Food and Agriculture with respect to the “hormone free” claim, stating that Miyoko’s cannot make this claim because its products contain plant hormones.  Overall, the case represents a victory for the dairy-alternative industry, which faces challenges on nomenclature and claims in many states.
  • On March 29, 2021, the U.S. Court of Appeals for the Eighth Circuit concluded that that the State of Missouri is not barred from enforcing its 2018 state law that makes it a crime for vegan food producers to imply that their products contain real meat.  However, upon affirming the lower court’s ruling that denied plaintiff Tofurky Company’s (Tofurky) motion for preliminary injunction, the Eight Circuit stated that Tofurky failed to show that the law applies to its products or that Tofurky is at risk of enforcement, as the company already informs consumers that its products are made from plants, rather than from animals.
  • Missouri’s law prohibits persons from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  In the lawsuit, plaintiffs alleged that the Missouri law violates their First Amendment rights, as it criminalizes the word “meat” and unfairly restricts how manufacturers can sell meat alternatives.  After filing the complaint, plaintiffs filed a motion for a preliminary injunction arguing that Missouri’s law could result in criminal charges against Tofurky, which sells “veggie burgers” and other similar products, while the case is being heard in court.
  • The lower court concluded that plaintiffs had not shown a substantial likelihood of success on the merits of their First Amendment claim because the law only prohibits misleading speech, not their commercial speech.  Further, the lower court cited a state guidance document that stated companies are only in violation of the statute if their marketing and labeling do not include “appropriate qualifiers,” such as “plant-based,” “veggie,” “lab-grown,” or “lab-created.”
  • Although the Eighth Circuit denied the injunction, it allowed the suit to move to trial on the merits.  A number of states, including Mississippi and Arkansas, have enacted laws to prohibit marketing a product as “meat” if it is not derived from livestock or poultry.  We will continue to monitor any developments.
  • On September 16, 2020, Upton’s Naturals Co. and the Plant Based Foods Association filed a lawsuit against the state of Oklahoma, challenging the constitutionality of the Meat Consumer Protection Act (“the Act”), a recent law that requires plant-based food companies to include a disclaimer if they use a meat term, such as “burger,” “hotdog,” “meatball,” “jerky,” “sausage,” “chorizo,” and “bacon.”  In the lawsuit, plaintiffs argue that this law was passed to prevent competition with the meat industry and that it violates the First Amendment.  This law passed earlier this year and will take effect on November 1, 2020.
  • By way of background, the Act bars plant-based foods from being labeled with meat terms without a disclaimer, which must be the size of the product’s name, even if they are labeled “meatless,” “vegan” or “plant-based.”  The Act expressly prohibits advertising “a product as meat that is not derived from harvested production livestock.”  However, the Act states that “product packaging for plant-based items shall not be considered in violation of [the Act] so long as the packaging displays that the product is derived from plant-based sources in type that is uniform in size and prominence to the name of the product.”
  • States, including Arkansas, Louisiana, Mississippi, Missouri, Montana, South Dakota, and Wyoming have enacted laws similar to the one in Oklahoma.  The lawsuit against Oklahoma differs from previous complaints filed because of the size requirement included in the mandate.  In the lawsuit, plaintiffs state that the Act would require companies to redesign their labels specifically to suit the regulations in Oklahoma, which will require a substantial amount of time and resources in order to ensure compliance for a single state.  According to the complaint, no other state besides Oklahoma requires plant-based food labeling to have disclaimers the same size as their product names.
  • Violations of the law can include fines of up to $10,000 for each offense and are considered misdemeanors, which can result in up to a year in prison.  We will continue to monitor any developments.
  • On January 13, 2020, Kansas joined the growing number of states that have introduced or enacted legislation that prohibit the marketing of a product as “meat” if it is not derived from livestock or poultry. HB 2437 would amend the Kansas Food, Drug, and Cosmetic Act to prohibit the use of identifiable meat terms on labels or in advertisements of meat analogs without either an accompanying disclaimer that the product does not contain meat or the inclusion of the word “imitation” before the name of the meat food product being imitated.
  • If enacted, a product would be deemed misbranded if labeled or advertised with any of the following terms but without a disclaimer or “imitation” qualifier: meat, beef, pork, poultry, chicken, turkey, lamb, goat, jerky, steak, hamburger, burger, ribs, roast, bacon, bratwurst, hot dog, ham, sausage, tenderloin, wings, breast and other terms for food that contain any meat, meat food product, poultry product or poultry food product.
  • HB 2437 was referred to the Kansas Legislature’s Committee on Agriculture, which held a hearing about the bill on January 23. The bill was introduced by State Representative Ron Highland with the support of the Kansas Livestock Association.
  • As our readers are aware, since 2018, 26 states have introduced similar labeling bills, many of which have been challenged in court. For instance, Mississippi, Missouri, and Arkansas have all faced legal battles over their respective plant-based meat labeling laws. Should HB 2437 become law, it is possible Kansas may find itself facing similar challenges.