The English language—being an inchoate amalgamation of geographically and culturally distinct languages—is replete with quirks and oddities. There are words that are pronounced the same but are spelled differently (tare, tear), words that are spelled the same but are pronounced differently (tear, wind), and words that share pronunciation and spelling, but have widely divergent meanings (pen, bat).
For food companies doing business the United States, the linguistic idiosyncrasies of the English language are nothing to sneeze at. So is the legal case regarding the word “meat”—in fact, often the different courts will interpret the same things differently. This article explores recent legislative attempts to constrain the use of the term “meat,” and the legal battles being waged in response to that legislation.
The online Merriam Webster dictionary offers five different definitions of “meat.” The most expansive definition is, simply, “food.” A somewhat narrower definition describes meat as the edible portion of food “as distinguished from its covering (such as a husk or shell).” Nevertheless, this definition still encompasses an enormous array of foods, from coconuts, to bananas, to pistachios, to turtles, to shrimp. Narrower still, the term can pertain specifically to the tissue of a mammal, as opposed to fowl or fish. This definition would of course exclude coconuts, but also many items commonly understood to be meat, such as chicken, turkey, or rattlesnake. Strangely, meat may also refer to the spongy tissue in the stems of most vascular plants. The archaic definition is “a meal, especially dinner.” Finally, unrelated to food, meat can mean a “favorite pursuit or interest,” as well as the core or heart of a matter. Meat, then, can mean many different things. As a result, the enactment of laws that significantly constrain the use of frequently applied and accurate terms is apt to result in lawsuits.
In recent years, numerous states, including Arkansas, Louisiana, Missouri, Mississippi, Montana, South Dakota, and Wyoming, have enacted so-called “truth in labeling” laws that prohibit the use of certain terms to describe products. For instance, Missouri’s truth in labeling law prohibits companies from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Does this mean that wild game isn’t meat? Similarly, the Mississippi law prohibits the use of “meat terms” to describe plant-based foods. And in Arkansas, the word “meat” may only be used to describe “a portion of a livestock, poultry, or cervid [deer, elk] carcass that is edible by humans.” Thus, even though poultry is included, bear, ostrich, alligator, rattlesnake, and squirrel are generally excluded. In addition, it’s no longer permissible to sell “veggie burgers” in Arkansas because the law prohibits using 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.
By most indications, these “truth in labeling” laws are being enacted in response to the explosive growth in of products marketed as meat substitutes (i.e., plant-based and cell-cultured protein alternatives). The increasing popularity of these products is attributable to a confluence of cultural and technological factors: culturally, concerns about animal welfare, the environmental impact of animal agriculture, and perceptions about the nutritional value of plant-based products; technologically, companies are only now overcoming the challenges that have long made producing these foods cost prohibitive.
For years, cell-cultured products—derisively termed “lab meat”—have languished nearer to the realm of science fiction than reality. The products bore only a passing resemblance to their animal-derived counterparts, despite the extraordinary cost. For example, a 2013 taste test involving a $325,000 “hamburger” grown in a laboratory petri dish received poor reviews and was described as dry, flavorless, and akin to “an animal-protein cake.”
Much has changed since 2013. The technology has vastly improved, costs have plummeted, and consumer attitudes are shifting dramatically. According to projections by global wealth manager UBS, sales of plant-based meat products will increase from $4.6 billion in 2018 to $85 billion in 2030. Such projections likely alarm stakeholders in the animal-derived meat industry, who have already seen their bottom line falling. Meat industry advocacy organizations, in turn, have successfully lobbied for laws that reign in the ability of companies to apply meat-like descriptors to plant-based or cell-cultured products. In response, numerous lawsuits have been filed to challenge the laws.
Among the most interesting things about these lawsuits is that both sides claim to be acting in the best interests of consumers. Proponents of the law argue that plant-based products sold, for instance, as “sausages” or “hot dogs” are likely to mislead consumers, who won’t be able to distinguish between traditional and plant-based versions of these products. On the contrary, opponents of the law contend that consumers won’t be misled because the principle selling point of plant-based meat alternatives is that they are not animal-based. Opponents contend that these laws are merely an attempt to stifle competition under the guise of consumer protection.
In a recent New York Times article, Jaime Athos, the chief executive of Turtle Island Foods (d/b/a Tofurky), decried the new laws, asserting that his products are specifically marketed not to be confused with conventional meat products. “That’s the selling point,” Athos said. His argument has some merit. Even though companies producing plant-based meats certainly wish to closely mimic the taste and texture of products like hot dogs, sausages, and hamburgers, their appeal is almost singularly attributable to the fact that they aren’t derived from animals. In that regard, the failure to prominently disclose the plant-based origins of such products would likely prove more harmful than helpful, even in the absence of truth-in-labeling laws.
Missouri Challenge
In 2018, Tofurky, The Good Food Institute, the Animal Legal Defense Fund, and the American Civil Liberties Union of Missouri (Plaintiffs) sued to preliminarily and permanently enjoin enforcement of the Missouri truth-in-labeling law.
The Plaintiffs argue that the Missouri law violates the First Amendment, the Dormant Commerce Clause, and the Due Process Clause of the U.S. Constitution by prohibiting companies like Tofurkey from truthfully labeling plant-based meat substitutes in a manner that effectively conveys they are substitutes for conventional meat. The state of Missouri countered that the statute prohibits only labels that suggest that the plant-based or lab-grown meat is derived from animals, and thus, does not require Tofurkey to do anything different.
Early in the case, it appeared the parties were going to reach a settlement, but negotiations ultimately broke down and the lawsuit continued.
In September 2019, the court denied the Plaintiffs’ request for a preliminary injunction that would have barred enforcement of the law pending the outcome of the lawsuit in its entirety. The court ruled, among other things, that Plaintiffs failed to establish a likelihood of injury because “[t]he statute only prohibits companies from misleading consumers into believing that a product is meat from livestock when it is, in fact, plant-based or lab-grown.” In short, the court ruled that Tofurkey was unlikely to prevail because, according to the state of Missouri’s own lawyers, nothing Tofurkey had done to that point would constitute a violation of the law—thus, there was no harm. Under the law, there’s generally no standing to sue in the absence of an identifiable harm, referred to as a “case or controversy.” If there is no case or controversy, then courts don’t have subject matter jurisdiction and must dismiss the lawsuit.
The state of Missouri’s argument is interesting because, even though it won the day, it also significantly narrowed the potential scope of the law by asserting that Tofurkey’s products did not violate the law. Plaintiffs sought to appeal the decision on the preliminary injunction, but the Court of Appeals denied the request.
Arkansas Challenge
In Arkansas, producers of plant-based or cell-cultured meat products may be fined for employing terms that describe meat when describing products that aren’t derived from animals. The law also constrains the use of phrases like “almond milk” and “cauliflower rice” to describe other plant-based alternatives to conventional foods. The statute does not offer an exception for plant-based meat producers that clearly identify their products as being vegetarian, vegan, or made from plants.
Soon after the Arkansas law was enacted, the American Civil Liberties Union, Good Food Institute, Animal Legal Defense Fund, and ACLU of Arkansas, on behalf of Tofurkey (Plaintiffs), filed a lawsuit challenging the law on similar grounds to that of the Missouri case. In the Complaint, Plaintiffs allege the Arkansas law places “a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products. It does nothing to protect the public from potentially misleading information. Instead, it creates consumer confusion where none existed before in order to impede competition.” Arkansas has stated that it doesn’t intend to begin enforcement of the challenged law until case is resolved.
In many ways, the Missouri and Arkansas laws are similar. So are the lawsuits. Yet, whereas the judge in Missouri denied the request for the preliminary injunction, the Arkansas judge granted it. Consequently, Arkansas is barred from enforcing the law against Tofurky until the case has been decided. In its December decision, the Arkansas court ruled that Tofurkey would likely prevail on the merits of its First Amendment claim—that is to say, the court was convinced that the Arkansas law likely violated the First Amendment. The court also ruled that the threat faced by Tofurkey as a result of the law was so substantial that an injunction preventing Arkansas from enforcing the law was necessary.
Collectively, these cases represent two very capable judges reading two similar laws, and applying them to similar facts, but each reaching very different conclusions. One could argue that the differences in the respective laws made the difference in the cases, but that will provide scant comfort to those affected by similar laws in other places. For obvious reasons, it’s vitally important that laws are applied fairly and uniformly both within and beyond jurisdictional boundaries. When judges issue arguably divergent rulings in similar cases, the cases are often appealed to higher courts, who will then set a uniform standard. How higher courts will ultimately reconcile the Missouri and Arkansas decisions, or even whether they will, remains to be seen. Any sort of final decision is likely years away. By then, the words we use to discuss plant-based or cell-cultured meats will have likely undergone significant additional shifts. Such is nature of English in these increasingly fast-paced times.
Rules are in notoriously short supply in the English language but attempting to rectify that by legislating new rules is almost certainly destined to fail. Perhaps technology, just as it may one day allow us to sustainably end world hunger, will also eradicate legal ambiguity. Perhaps then we’ll no longer need to meet at the courthouse and ask the judge to mete out justice regarding the meaning of “meat.” But that of course would open a whole new can of worms.
Chappelle is a food industry lawyer and consultant at Food Industry Counsel, LLC. Reach him at [email protected]. Stevens, also a food industry attorney, is a founding member of Food Industry Counsel, LLC. Reach him at [email protected].
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