An Oklahoma federal judge has refused to block a state law that requires plant-based food companies to include a disclaimer on labels if they use a meat term to describe their products. The ruling also forces plant-based products to include a disclaimer using a type size that is as prominent as the product name.
“This means a plant-based product that uses a meat term would be forced to redesign and reprint labels so that the qualifying term such as ‘vegan’ or ‘plant-based’ appears in a type size and prominence that equals the product name with the meat term,” says Evangelia Pelonis, a food and drug attorney with the Washington, D.C.,-based firm Keller and Heckman. “This would be the case even if the current labels already bear these qualifying terms in order to ensure the prominence requirement is met.”
Not the Final Rule on Plant-Based Food Labeling
But one state ruling does not fundamentally shift the legal landscape, and this case will most likely not serve as a bellwether upon which other courts will rely. Joel S. Chappelle, a food industry attorney with Food Industry Counsel, LLC, noted that the ruling could be characterized as negligible right now. “From a procedural standpoint, the ruling merely denies the plaintiffs’ request to temporarily enjoin enforcement of the aggrieved law,” he tells Food Quality & Safety. “That is not to minimize the potential harm faced by plant-based food companies, but rather to assert that the ruling is by no means the final word on this law, or others like it.”
Given the divergent rulings in other similar cases, Chappelle expects that the issue of what is permissible to print on plant-based product labels will continue to percolate through the courts for a number of years to come. “In terms of where this is all going, I think the most likely outcome is some form of détente,” he says. “As the plant-based food industry continues its remarkable growth, and consumers become more familiar with the products—and the terminology used to describe them—concerns about consumer confusion will diminish, as will the political incentives and motivations driving the enactment of such laws.”
First Amendment arguments are expected to be a big push of the plant-based industry in the months and years to come. “Previous state laws in Mississippi, Missouri, and Arkansas were found to be unconstitutional based on First Amendment grounds because they prohibited the use of meat terms altogether, the Oklahoma Meat Consumer Protection Act takes a more narrow approach by not prohibiting the use of the terms but requiring that the terms be prominently qualified,” Pelonis says. “Thus, the First Amendment arguments are harder to make because the use of meat terms are not outright prohibited.”
While other states could follow this approach, it’s expected that federal action on this issue will preempt the state approaches. However, legally successful state approaches could also shape how the issue is resolved on the federal level.
In October 2020, the European Parliament ruled that food products not containing meat could still be labeled “burgers” or “sausages” in the European Union, allowing plant-based food makers to continue to label their products as “veggie burgers” or “veggie sausages.”