Solving the Problem in One Bite: Addressing “Meat” Advertising with Federal Law

Consumers in the United States increasingly eat plant-based food products rather than meat.1 This trend has accelerated recently through investments from both major meat producers and plant-based meat startups. Such innovation benefits people because red meat is a dietary “lose-lose”: both unhealthy and environmentally unsustainable. The COVID-19 pandemic has also highlighted health concerns in meat processing plants, which are especially problematic because the Centers for Disease Control believes that “three out of four new or emerging infectious diseases are zoonotic—the result of our broken relationship with animals.”2 However, state legislatures are increasingly responding to plant-based meat alternatives by cracking down on purportedly misleading advertising of these products. These statutes create several problems. First, conflicting labels confuse customers. Second, different labeling requirements increase compliance costs, leading to higher prices for plant-based alternatives. These higher costs harm all consumers—not just those who consume plant-based alternatives—by erecting barriers to entry that enable meat producers to charge higher prices for their products too.

Plant-based meat producers have responded by raising constitutional challenges to these statutes. But the litigation to date has overlooked the Federal Food, Drug and Cosmetics Act (FDCA) as amended by the Nutrition Labeling and Education Act of 1990 (NLEA).3 This Essay builds on arguments elsewhere and argues that the NLEA preempts state labeling laws. The NLEA’s preemption provision plainly encompasses the FDCA’s identity labeling requirements. Applying this law also permits states to seek exemptions from the Food and Drug Administration (FDA), and allows remedies for unfair competition concerns under the Lanham Act. Federal law already regulates plant-based food products, and food producers should take advantage of this one regulatory system rather than fifty.

I.  Recent Food Labeling Regulation Activity

Beginning in 2018, state legislatures began to address the use of “meat” and traditionally meat-related terms in advertising. These statutes purport to help provide clarity to consumers who may mistakenly buy plant-based or lab-grown meat substitutes, but may serve protectionist goals.4  Similar legislation proposed in other states means the regulatory landscape continues to evolve.

These statutes harm consumers by increasing confusion and restricting competition. Constitutional challenges already made against these laws have so far produced mixed results. This Part explores the recent state statutes, explains why they are problematic, and examines challenges to their validity and uncertainties they may fail to address.

A. Recently Passed State Labeling Laws

The Missouri statute that started the plant-based labeling regulation trend prohibits “misrepresenting a product as meat” that does not come from livestock or poultry. Accompanying regulations provide a safe harbor for products that disclose non-meat ingredients and include qualifiers such as “plant-based.” Similar statutes have been passed in Oklahoma and Wyoming. States such as Mississippi have enacted more restrictive statutes that expressly ban the use of meat-based terms with plant- or insect-based food products. However, Mississippi has also proposed regulations providing that plant-based food products are not considered labeled as “meat” if they use qualifiers. The existence of regulations in addition to the statutes indicates the uncertainty that these statutes have introduced into food markets. Some states such as Arkansas and Louisiana5 have taken an even stronger stance by adopting statutes that do not permit plant-based food products to use meat-related language without regulations providing safe harbors.

Plant-based meat producers typically advertise their products by referring to the products for which they are intended to substitute. For example, Tofurky markets products under names including “chorizo style sausage,” “smoked ham style deli slices,” and “slow roasted chick’n” in packages that also identify them as plant-based. Each name uses a term that is associated with the meat product it is meant to resemble, which helps consumers understand the product better. But the Arkansas labeling statute prohibits “[u]tilizing a term . . . that has been used or defined historically in reference to a specific agricultural product.” Therefore, Tofurky would not be able to use these terms on its labels for plant-based products because these terms have historically referred to meat. This statute and others like it pose obstacles to Tofurky’s business and hurt consumers by banning labels that they understand.

B.   Harms Posed by State Labeling Laws

The first way that these state labeling laws harm consumers is by creating confusion. Inconsistent labeling, which is the natural result of states using different laws and regulations, means that consumers will see different labels on otherwise identical products. Although the possibility for confusion is what these state statutes (purportedly) address, their passage by a subset of states only increases the problem.

Second, increased compliance costs serve as a barrier to entry. Firms that attempt to market their products as meat substitutes must advertise to differentiate their products from existing ones, but labeling restrictions limit their ability to effectively do so by forcing producers to use names that describe their products less clearly. Meeting cumbersome labeling requirements or using less informative names makes it more difficult to attract consumers, which reduces incentives to create these products in the first place. Different labeling standards for different markets worsen this problem because producers can no longer produce one type of package at a national scale. Discouraging the development of meat substitutes enables established firms to increase their prices without attracting competition, and restriction of substitutes and barriers to entry are quintessential benefits that industries seek through regulation. Multiple systems of regulation only exacerbate these problems because there are even more standards to meet.

Furthermore, meat alternatives should be encouraged because of the health and ecological pitfalls of meat consumption. Greenhouse gas emissions from the global food system—already 5.2 billion tons of carbon dioxide equivalent in 2010—are projected to increase by 80–90 percent by 2050. Moving towards a primarily plant-based diet can reduce greenhouse gas emissions by 56 percent from the projected increase. Encouraging meat alternatives can therefore help everyone.

C.  Litigation and Uncertainty in Response to State Labeling Laws

Plant-based meat producers have challenged the Missouri, Mississippi, and Arkansas statutes. In each case, plaintiffs have raised First Amendment challenges to what they view as restrictions on truthful commercial speech that do not reasonably fit the governmental interest served by the restrictions. Under the governing framework of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, regulation of commercial speech is subject to lesser scrutiny under a four-part test that involves weighing the government interest advanced by the regulation and determining how directly the regulation fits that government interest. Under this framework the validity of each statute depends on each court’s view of whether the statute only addresses misleading speech.

Because these statutes are similar but not identical, courts could read them differently and reach different conclusions.6 In fact, that has been the experience of the statutes to date. The court in Missouri denied the plaintiffs’ motion for a preliminary injunction because the statute only targeted misleading commercial speech, which is not protected by the First Amendment. In contrast, the court in Arkansas granted the request for a preliminary injunction because the plaintiff’s packaging was not misleading and the state law was broader than necessary to combat misleading speech. With this result, companies that operate in interstate commerce face the undesirable requirement to comply with different or even conflicting regulations in separate states, leading to increased costs for consumers who are not even misled by existing packaging.

The plaintiffs in Missouri and Arkansas additionally argue that these statutes impermissibly benefit in-state meat producers by requiring out-of-state companies to bear additional costs.7 These arguments sound in the Dormant Commerce Clause, a doctrine that prevents states from intruding on Congress’s power over interstate commerce through “regulatory measures designed to benefit in-state economic interests.” A law violates the Dormant Commerce Clause if it has the “practical effect” of burdening interstate commerce, even if the law is facially neutral and purports to protect consumer welfare. However, not all state statutes that adversely affect the national market violate the Dormant Commerce Clause. Addressing these facially neutral meat labeling statutes requires a court to (1) identify the interest actually advanced, (2) assess its validity, (3) determine the burden on interstate commerce, and (4) evaluate whether the burden is “clearly excessive” in relation to the local benefits, including whether less burdensome alternatives exist. Courts performing this analysis could disagree and thus leave plant-based meat producers facing the same difficulty of complying with multiple regulatory schemes. Fortunately, Congress has already provided a framework to address these labeling laws and the concerns animating them, as the following Part illustrates.

II.  Preemption Under the NLEA

When passing these statutes, state legislatures are not writing on a blank slate: the FDCA and the NLEA give the FDA significant authority over food labeling regulations. Furthermore, the NLEA provides that the FDA’s regulations in many areas preempt any state regulations. Federal preemption of state statutes comes from the Supremacy Clause of the Constitution. It can occur in one of three forms: express preemption, field preemption, or conflict preemption. Express preemption occurs “when a federal statute explicitly states that it overrides state or local law.” Field preemption and conflict preemption, in contrast, are forms of implicit preemption. Field preemption occurs when “the scope of a statute indicates that Congress intended federal law to occupy a field exclusively.” Conflict preemption occurs when “it is ‘impossible for a private party to comply with both state and federal requirements,’ or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” The NLEA is an example of a statute that operates only by express preemption.8

The text and purpose of the NLEA require the preemption of these state meat labeling statutes. States may not establish conflicting food labeling regulations, regardless of whether the FDA has issued specific regulations for that type of food. This Part proceeds by discussing federal food labeling rules, arguing that the statute’s text requires preemption, and noting that this reading is fully consistent with the NLEA’s purpose.

A.   Food Labeling Regulation in the FDCA and NLEA

1. Statutory provisions.

The FDCA, as amended by the NLEA, is the primary federal regulatory statute for non-meat food products. The FDA can define and regulate food products in several ways. First, the FDA can establish regulations fixing a “standard of identity” for any food. Any product with an applicable standard of identity that does not comply with such standard or list the way it differs is considered misbranded in violation of the FDCA. If the FDA has not issued a standard of identity, food products should be labeled using the “common or usual name” of the food or each ingredient. Common or usual names can be established by common usage or by FDA regulations that require these names to “accurately identify or describe . . . the basic nature of the food or its characterizing properties or ingredients.”

2. FDA regulations and guidance.

The FDA has issued regulations through notice-and-comment rulemaking that require labels on packaged food to state the identity of the food or its ingredients. If a standard of identity exists, the product must contain that name. If not, the label should contain the common or usual name of the food; if “the nature of the food is obvious, [the food can have] a fanciful name commonly used by the public.” In guidance documents, the FDA has used “vanilla wafers” as an example of an acceptable fanciful name.

In recent years, the FDA has not issued new standards of identity for food products.9 This approach recognizes that creating new standards for well-known foods can increase customer confusion. The FDA believes that the “common or usual name” regulations suffice to regulate food products and can also avoid introducing additional complexity. It has also recognized the value of referencing a traditional food in the name of a substitute food if the substitute food’s name makes clear how it differs from the traditional food.

The FDA has not yet issued standards of identity for plant-based meat products. Therefore, it regulates these food products under the “common or usual” name labeling requirement. As previously stated, usage by consumers can establish the name of a food for labeling purposes. Meat substitutes such as veggie burgers have been available to US consumers for decades, so there is a strong argument that common usage has established their “common or usual names.” Furthermore, substitute product names can reference more traditional foods if they note the relevant differences. Therefore, plant-based meat products as currently labeled comply with the FDA’s labeling requirements. Any state statutes that require different labels improperly impose additional requirements.

B.   Textual and Structural Arguments for Preemption

1. Use of the phrase “standards of identity.”

The preemption provisions of the NLEA only apply to certain labeling requirements. 21 USC § 343-1(a) contains the preemption provisions and includes §§ 343(g) and 343(i)(1)–(2). Section 343(g) provides that food products failing to comply with an applicable standard of identity are misbranded, and § 343(i) does so for products labeled by their common or usual name.10 Therefore, the NLEA preempts conflicting state requirements for identity labeling either under a standard of identity or the common or usual name of the food.

However, two district courts have split on whether states can issue their own distinct identity labeling standards. One court focused on § 343(g)’s reference to FDA regulations and § 343(i)’s use of “standard of identity” without specifying a source and held that the state standard was not preempted because § 343(i) only applies when there is neither a state nor a federal standard of identity. The second court focused on the parallel language in each subsection of the statute—“representation as to definition and standard of identity”—and concluded that the phrases have the same meaning: a standard issued by the FDA. For further support, the second court cited an FDA statement explaining that “state or local requirements can be preempted . . . even if no analogous Federal regulation had been promulgated.”

The second court’s interpretation has stronger support in the statute’s text. The use of the exact same phrase creates a presumption that the phrase has the same meaning under the canon of consistent usage. Furthermore, § 343(g) is the first time the statute uses “standard of identity,” so it is entirely natural to define it by reference to the FDA’s authority to issue such standards and then use the term without repeating the reference thereafter. Although the presumption of consistent usage is rebuttable, there is no evidence to support different uses of this phrase.

The FDA’s statement provides further support for this interpretation. Even though the statement did not occur in formal rulemaking, other factors weigh in favor of deferring to the agency’s position. Because the FDA previously studied the sufficiency of federal labeling regulations, the agency used its specialized experience and information to conclude that there was no need for additional state labeling laws. The FDA’s reasoning is persuasive; an alternate interpretation would allow states to frustrate the statute’s goal of regulatory uniformity. Finally, the FDA expressed this view less than three years after Congress passed the NLEA and has not deviated from it in the twenty-seven years since. These factors—specialized experience, persuasive reasoning, and consistency of interpretation—entitle the FDA’s interpretation of the NLEA to deference.

2. State ability to seek exemptions.

A second subsection of the statute gives the FDA authority to exempt a state or local regulation from preemption if the state or local regulation meets certain requirements. This subsection would be superfluous if states could unilaterally remove identity labeling from federal oversight by creating their own standards. Because it is unlikely that Congress intended one part of a statute to render another part needless, the text of 21 U.S.C. § 343-1(b) provides further evidence that the NLEA preempts all conflicting state statutes unless the FDA exempts them.

C.  Purpose-Based Arguments for Preemption

Throughout its passage the NLEA demonstrated a goal to promote uniform labeling.11 Between its introduction to the full House of Representatives and the vote to approve it, expansion of the preemption provisions meant that uniform labeling became central.12 Senators also focused on two main harms that justify preemption,13 especially in a national market like the U.S. food market. First, inconsistent regulations from other authorities prevent federal regulations from achieving their desired ends, which can cause consumers to lose faith in those regulations. Second, complying with many different sets of regulations is costly. Manufacturers faced with increased compliance costs will pass them to consumers through higher prices.

Clearly, preemption of state identity labeling standards is consistent with these ideas. It facilitates interstate commerce by preventing manufacturers from having to comply with different labeling standards. It serves consumers because it keeps labeling costs down. It also serves consumers’ informational needs by preventing conflicting labeling rules. Reading the preemption provisions to apply to food identity labeling for all food products is fully consistent with the goals of Congress.

III.  Using Preemption to Address Meat Advertising Claims

Because the NLEA preempts state meat labeling statutes, plant-based meat producers must decide how to raise this issue. They can always petition the FDA, but that lengthy process is subject to the FDA’s discretion. Instead, plant-based meat producers should seek declaratory judgments that the statutes are preempted. Preemption addresses the harms to consumers that these statutes create. Furthermore, using federal law responds to the unfair competition and consumer harms purportedly underlying these statutes, because plant-based meat producers who actually misrepresent their products are potentially liable under the Lanham Act. This Part explains how plant-based meat producers can make preemption arguments and explains why this framework still permits valid challenges to misrepresentation of such products.

A.  Declaratory and Injunctive Relief

Plant-based meat producers are entitled to declaratory relief under the Declaratory Judgment Act. These state statutes have been enacted into law and therefore present an “actual controversy” as required by this act. Preemption also satisfies federal subject matter jurisdiction by presenting a federal question. Obtaining this declaratory relief would enable plant-based meat producers to confirm their compliance with the FDCA and confidently disregard these state statutes.

Plant-based meat producers also have a strong case for injunctive relief against the statutes. Even though the FDCA does not create a private right of action, courts of appeals have recognized that “a ‘claim under the Supremacy Clause that a federal law preempts a state regulation is distinct from a claim for enforcement of that federal law.’”14 Seeking declaratory and injunctive relief from state meat labeling statutes on preemption grounds is not seeking to enforce the FDCA; thus, this argument complies with the FDCA’s prohibition on private actions.

B.  Preservation of Other Remedies

Preemption will address problems caused by the inconsistent state statutes while still leaving traditional meat producers a remedy. The Lanham Act creates a cause of action for misleading advertising or labeling that may be brought by “any person who believes that he or she is or is likely to be damaged” by the misrepresentation. Under Supreme Court precedent, the statute requires an allegation of “an injury to a commercial interest in reputation or sales.” Therefore, for example, a beef producer who lost sales because of misrepresented veggie burgers could sue under this act. This framework is superior because it requires a showing of actual misrepresentation before burdening plant-based meat producers.

Such suits are fully consistent with the FDA’s primary role in FDCA enforcement. In POM Wonderful LLC v. Coca-Cola, the Supreme Court held that the NLEA only preempts state laws, not federal laws like the Lanham Act. Neither statute’s text prevents Lanham Act claims about food labeling, and the statutes have coexisted since 1946 without Congress changing their relationship. The statutes are also compatible because their purposes—fair competition for the Lanham Act and public health and safety for the FDCA—complement each other. Finally, any small variation that may arise from Lanham Act suits “is quite different from the disuniformity that would arise from the multitude of state laws . . . that are partially forbidden by the FDCA’s pre-emption provision.” Preemption of the state laws thus permits meat producers a remedy for misrepresentation claims while the use of federal law ensures uniformity that is consistent with the NLEA.15

Conclusion

State legislatures have apparently sought to protect consumers by regulating meat-related advertising—although benefits to in-state meat producers surely do not hurt. However, these states are not writing on a blank slate. Federal legislation governing misbranded food products also promotes uniform food regulation through express preemption provisions in the NLEA. These states have plainly passed statutes that impose different identity labeling requirements than the FDA. Such statutes are within the scope of the preemption provisions regardless of whether the FDA has issued specific standards. States cannot unilaterally decide to step in for perceived federal regulatory failures. The text and purpose of the NLEA require preemption of these statutes.

Plant-based meat producers should seek declaratory and injunctive relief from these statutes based on preemption. Other federal statutes like the Lanham Act will enable meat producers to obtain relief if any plant-based meat producers are misrepresenting their products. States can also seek exemptions from preemption by petitioning the FDA. Restrictions on plant-based meat directly harm consumers that enjoy these products and indirectly harm all consumers by restricting competition and permitting meat producers to charge higher prices. Tackling the problem under one law is far preferable to resolution under dozens of competing state laws.

• 1Michael Pellman Rowland, Labeling Wars: The U.S. Cattlemen’s Association Has Beef with Its Competition, Forbes (Feb. 14, 2018) (noting that 17 percent of US consumers eat a predominantly plant-based diet while 60 percent claim to be reducing their consumption of meat-based products).
• 2See Jonathan Safran Foer, The End of Meat Is Here, N.Y. Times (May 21, 2020).
• 3Pub. L. No. 101-535, 104 Stat. 2353, codified at 21 U.S.C. § 301 et seq. I will use “NLEA” to refer specifically to the amendments enacted in 1990 and “FDCA” to refer to the larger statute.
• 4Baylen Linnekin, Arkansas’ New Food-Labeling Law Is Veg-on-Veg Crime, Reason.com (Apr. 4, 2019) (noting that the sponsor of Arkansas’ law stated his willingness to “plead guilty to anyone that says I supported this [law] to defend the rice industry”).
• 5The Louisiana law is nearly identical to the Arkansas statute but is not effective until October 1, 2020.
• 6Another wrinkle arises because, in the Central Hudson analysis, courts will consider whether “the stated interests are not the actual interests served by the restriction.” Therefore, determining the actual interest served—consumers or industry protection—is also relevant.
• 7Neither court addressed these arguments at the preliminary injunction stage because the plaintiffs only made these arguments in their complaints. Turtle Island Injunction Order at *12; Tofurky Injunction Order at *2 n. 1.
• 8NLEA § 6(c) states that “[t]he [NLEA] shall not be construed to preempt any provision of State law, unless such provision is expressly preempted under [21 U.S.C. § 343-1].”
• 9The FDA last issued one of its three hundred standards of identity in 2002, for white chocolate.
• 1021 U.S.C. § 343(i) has two clauses: The first refers to foods with only one ingredient; the second, to those with more than one ingredient. Foods with more than one ingredient must show the common or usual name of each ingredient, but the requirements are otherwise identical.
• 11H.R. Rep. No. 101-538, 101st Cong., 2d Sess. 8 (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337 (identifying a goal of the legislation as preventing state and local governments from “adopting inconsistent requirements with respect to the labeling of nutrients or with respect to the claims that may be made about the nutrients in foods”). In the initial draft of the bill, only nutritional labeling claims were subject to preemption.
• 12Statement of Representative Henry Waxman, 136 Cong. Rec. 20418 (July 30, 1990) (describing “substantial[ ] change[s]” to the bill and explaining that preemption was appropriate when the “laws at issue makes it difficult and even impossible for companies to operate in interstate commerce”). The only discussion of the changes to the bill occur in floor speeches; the House of Representatives did not produce an updated report on the bill.
• 13See, for example, Statement of Senator Orrin Hatch, 136 Cong. Rec. 33429 (Oct 24, 1990) (explaining that inconsistent state and local laws both “undermin[e] the credibility and effectiveness of Federal policy” and “seriously disrupt food manufacturing and distribution, resulting in higher prices for consumers”).
• 14Wright Electric, Inc. v. Minn. State Board of Electricity, 322 F.3d 1025, 1029 (8th Cir. 2003), quoting Burgio & Campofelice, Inc. v N.Y. State Department of Labor, 107 F.3d 1000, 1007 (2d Cir. 1997). These courts have held that preemption language in the statute does not affect this holding. See also Associated Builders and Contractors v. Perry, 115 F.3d 386, 388–89 (6th Cir. 1997).
• 15Language in the FDCA refers to preemption of “requirements” imposed by state law. The Supreme Court has held that these provisions refer to “positive enactments of State law, not common law causes of action. See Medtronic v. Lohr, 518 U.S. 470, 489 (1996). Preemption may therefore not affect state-law causes of action, although a detailed discussion is outside the scope of this Essay.