False Advertising, Free Speech, and the Fight Over Plant-based and Lab-Grown Meat Alternatives

By Yitzchak Besser
December 5, 2018

False Advertising, Free Speech, Plant-based Meat and Meat AlternativesMissouri made history in August 2018 when it became the first state to regulate the use of the word “meat” on product labels. The new legislation takes aim at companies selling plant-based meat alternatives. It also targets producers of lab-grown meat products, known as “clean meat” or “cell-based meat.”

The statute defines the word “meat” as “any edible portion of livestock or poultry carcass or part thereof” and the term “meat product” as “anything containing meat intended for or capable of use for human consumption, which is derived, in whole or in part, from livestock or poultry.”

Fighting False Advertising or Stifling Free Speech and Fair Competition

TheAmerican Civil Liberties Union (ACLU) has got a beef with the new legislation, and has filed a lawsuit against it in the US District Court for the Western District of Missouri, on behalf of plant-based meat alternative products company Tofurky and the Good Food Institute, a nonprofit corporation that supports companies that produce plant-based and cell-based meat alternatives.

The ACLU contends that the statute is unconstitutional, because it “is a content-based, overbroad, and vague criminal law that prevents the sharing of truthful information and impedes competition by plant-based and clean-meat companies in the marketplace.”

“The statute does nothing to protect the public from potentially misleading information,” the ACLU continued. “As such, the statute violates the Free Speech Clause of the First Amendment, the Dormant Commerce Clause, and the Due Process Clause.”

Proponents of the new law, like the Missouri Cattlemen’s Association(MCA), claim that it is designed to fight false advertising and avoid confusion in the marketplace, in that it will prevent consumers from mistaking a plant-based or lab-grown meat alternative for a product that originated from livestock or poultry.

However, in their complaint to the court, the ACLU noted that “[t]here was no evidence of consumer confusion about the ingredients or source of plant-based meats, including Tofurky’s products, before the statute went into effect” and that “[t]he Office of the Missouri Attorney General—the agency responsible for protecting consumers and preventing misleading business practices—has received zero complaints from consumers who accidentally purchased plant-based meats that they believed to be meat from slaughtered animals.”

Moreover, MCA executive vice-president Mike Deering may have implicitly indicated that the meat labeling statute is primarily about protecting traditional meat products when he said that “[t]his [law] is about protecting the integrity of the products that farm and ranch families throughout the country work hard to raise each and every day.”

“The use of traditional nomenclature on alternative products is confusing to consumers and weakens the value of products derived from actual livestock production,” Deering added.

Forbes included Deering’s comments in an article on the controversy surrounding the meat labeling law, but the original statement is no longer available on the MCA’s website.

The National Conversation on the Word “Meat”

When it comes to the American meat market, the federal government has two agencies with overlapping areas of oversight. The US Department of Agriculture’s Food Safety and Inspection Service (FSIS) is responsible for monitoring the use of packaging material in all meat and poultry plants, while the US Food and Drug Administration (FDA) is responsible for approving both food packaging materials as well as the actual contents of the foods themselves.

As one example of the FDA’s influence on the meat industry, the agency just approved the key ingredient in a plant-based burger that replicates the sensory experience of a beef burger.

Impossible Foods, the maker of this plant-based burger, has claimed that their product is so similar to a beef burger that it even “bleeds” like a meat product. The company has already begun selling their plant-based “Impossible Burger” at 1,300 restaurants, including Momofuku Nishi, Fatburger,Umami Burgers, and select White Castle locations.

These companies are not the only ones investing in what proponents of the statute would call fake meat. Both Tyson Foods, the largest meat processor in the US, and Cargill, the largest private agriculture company in the country, have invested in plant-based and lab-grown meat alternative product companies.

A Case of Cattlemen Butting Heads

While Missouri may be the only state chewing the fat on this topic, several national organizations have seen fit to stake out a position on the subject of fake steaks. The US Cattlemen’s Association (USCA), a national organization that promotes the interests of the American cattle industry, has asked the FSIS to create a federal regulation similar to the Missouri statute.

This proposed regulation would bar the labelling of “synthetic products from plant, insects, and other non-animal components, as well as any product grown in labs from animal cells” as “meat.”

However, the National Cattlemen’s Beef Association (NCBA), the nation’s largest and oldest national trade association for American cattle producers, has come out against the USCA’s proposed regulation. The NCBA believes that although lab-grown meat products are “novel meat food product[s],” they are meat products nonetheless, should be included under the definition of the word “meat,” and should be regulated by the FSIS.

TheNorth American Meat Institute (NAMI), in contrast, has taken a more conciliatory tone.  In a letter to the White House, the NAMI recommended establishing a regulatory framework in which the FDA would oversee pre-market safety evaluations for lab-grown meat products while the FSIS would regulate these products after the pre-market safety phase has concluded, “just as [the FSIS] does with all other meat and poultry products.” Interestingly, the NAMI’s proposal was co-signed byMemphis Meats, one of the leading companies pursuing the development of lab-grown meat products.

In spite of these petitions to the federal government, a resolution to this beefy battle is unlikely to be reached before the courts have had their chance to sink their teeth into this case.

The Author

Yitzchak Besser

Yitzchak Besser is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for the University of Baltimore Law Review. He is also a research assistant for Prof. Kim Wehle, the vice-president of the Jewish Law Students Association, the vice president of the Intellectual Property Law Society, a member of the Royal Graham Shannonhouse III Honor Society, and a member of Omicron Delta Kappa – The National Leadership Honor Society. Prior to law school, Yitzchak served as an editor at an international newspaper and as the content director at an email marketing firm.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 3 Comments comments. Join the discussion.

  1. Pro Say December 5, 2018 1:06 pm

    Reminds one of the battle over what is — and what is not — “milk.”

  2. Jeff Lindsay December 5, 2018 8:16 pm

    I agree, Pro Say. That includes the crazy restrictions over what kind of milk people can drink, making safe, wholesome raw milk a dangerous illegal substance. Amazingly, here in China where food safety is a common concern, I now enjoy a delicious daily treat that I never had in Wisconsin, America’s dairy state: raw milk. The Japanese Asahi dairy here is a super high-quality green dairy that produces the most delicious raw milk that I can buy all over Shanghai, something that is strictly forbidden with criminal penalties in much of the US. Over zealous regulations from industries afraid of competition severely limit consumer options.

  3. LazyCubicleMonkey December 11, 2018 12:18 am

    If technology is eventually good enough such that lab-grown meat is physically identical to the animal-sourced one (at the cellular level), how is that not meat? That makes no sense.

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