Imitation meat has become ambitious. In contrast to past meat alternatives such as tofu or seitan, new meat substitutes are advertised as almost indistinguishable from the real thing. Advertising also focuses on current concerns, like environmental or health benefits, rather than animal welfare. The result is that even non-vegetarians are now reaching for new, plant-based “meats.” States—prompted by a worried meat industry—have reacted to this trend with laws that would prevent non-meats from being labeled as “burgers,” “sausages,” “hot dogs,” and similar traditionally meaty terms of art.

In addition to bemused press coverage, many of these state laws have attracted First Amendment legal challenges. After all, advertising is protected speech, albeit of a lesser variety. Under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-64 (1980), courts determine whether the challenged advertising contains protected speech, but misleading advertising is not protected at all. The Supreme Court has held that limits on otherwise protected speech are only permissible if: (1) the government has a substantial interest; (2) which is directly advanced by the law; and (3) the restriction on speech is narrowly tailored to advance the government’s interest. Lawsuits challenging these state labeling restrictions are instructive for those wishing to advance—or challenge—legislation affecting meat labeling.

For example, a Missouri law makes it unlawful to “misrepresent[] a product as meat that is not derived from harvested production livestock or poultry.” [1] The alternative meat purveyor Tofurkey sued, joined by advocacy groups, claiming that the law infringed Tofurkey’s First Amendment right to advertise its products as “veggie burger” or “plant-based jumbo hot dogs.” [2] In response, the government argued that the law was permissible because it only prohibits misleading advertising: guidance from the Missouri Department of Agriculture permits non-meat labels with qualifiers such as “veggie” or “plant-based.” [3] A federal judge agreed that the law did not violate commercial speech under Central Hudson “because the statute only prohibits speech which would be misleading and this is a permissible government restriction.” [4] The ruling is on appeal with the Eighth Circuit.

In contrast, a 2019 Arkansas law outlawed labels that “[r]epresent[] the agricultural product as meat or a meat product” when it is not, or to use a “term that . . . has been used or defined historically in reference to a specific agricultural product.” [5] In other words, in Arkansas “burgers” and “hot dogs” can only be made of specific animal meat, with no exception for labels that include qualifying language. The same plaintiffs as in the Missouri case sued and pointed out terms like “meat,” “steak,” and “burger” have described non-animal foods for decades in phrases like “coconut meat.” [6] The state agreed that it had effectively made Tofurkey’s advertising illegal, even for products identified as “veggie.” [7] 

In December 2019, the court sided with Tofurkey and issued a preliminary injunction. [8] It rejected the state’s argument that “the simple use of the word ‘burger,’ ‘ham,’ or ‘sausage’ leaves the typical consumer confused” when paired with qualifiers. It likewise held that while Tofurkey had not complied with the state’s definition of food terms, this did “not render Tofurky’s speech inherently misleading.” The court also held that there were narrower means of achieving the state’s purpose, including “requir[ing] more prominent disclosures of the vegan nature of plant-based products.” [9] It likely did not help that the state was unable to point to instances of actual consumer confusion. The litigation is ongoing.

These legal challenges have not dissuaded other states from enacting similar laws. Georgia is currently debating SB 211, which, in its current form, permits non-meat products to be advertised using traditionally meaty terms if they also contain qualifiers. The National Agricultural Law Center reports that 13 states have enacted meat labeling bills, other states are considering such legislation, and a federal bill is pending in committee.

The lessons of these laws and lawsuits are relatively simple—laws that ban meat-like advertising terms are constitutionally suspect if they are not limited to misleading advertisements. But since existing law already prohibits false or misleading advertising, [10] it is hard to see what additional protections a constitutional meat-labeling law could create, aside from increased penalties. This has implications for the upcoming battle over the Food and Drug Administration’s regulation of alternative “milk” labeling. 

The next meat-adjacent battlegrounds will likely be laboratory-grown “meats” that are biologically indistinguishable from their animal analogs. The Department of Agriculture recently confirmed that it “intends to propose regulations for the labeling of” cell-based meat and poultry, which has already been the subject of First Amendment concerns. When this next generation “meat” arrives, new waves of legislation—and litigation—will certainly result.

There is also evidence that consumers are buying plant-based products not from confusion, but because they are actively seeking out non-meat alternatives for which they will pay premium prices. By emphasizing the non-meat nature of the products, meat-labeling laws may be counterproductive to the meat industry because they emphasize the very qualities that modern consumers appear to be seeking. Stakeholders may need to take a more nuanced approach to protecting their interests.

[1] MO. REV. STAT. § 265.494(7).

[2] See Turtle Island Food, SPC, et al. v. Richardson, Case No. 18-cv-4173, ECF No. 24 (W.D. Mo. Oct. 30, 2018).

[3] Id., ECF No. 37 (Dec. 28, 2018).

[4] See Turtle Island Foods, SPC v. Richardson, 425 F. Supp. 3d 1131, 1140 (W.D. Mo. 2019).

[5] Ark. Code Ann. § 2-1-305.

[6] See Turtle Island Foods, SPC et al. v. Soman, Case No. 19-cv-514, ECF No. 14 (E.D. Ark. Aug. 14, 2019).

[7] See id., Dkt. 17, p. 2-3 (Aug. 22, 2019).

[8] Turtle Island Foods SPC v. Soman, 424 F. Supp. 3d 552, 563 (E.D. Ark. 2019).

[9] Id. at 576.

[10] See., e.g., 21 U.S.C. § 343(a)(1) (a food item is “misbranded” if “its labeling is false or misleading”); 15 U.S.C. § 45(a)(1) (prohibiting “unfair or deceptive practices”).