Meatless meat is going mainstream. Fueled by sustainability concerns and an uptick in capital, food tech start-ups have been hard at work crafting new methods of producing plant-based proteins. The result – plant-based meats now mimic the taste, texture and mouthfeel of real meat better than ever, and represent more than $4.5 billion in sales annually with forecasts for exponential growth.
Just this year, Impossible Foods Inc. and Beyond Meat Inc. added their plant-based burgers to thousands of restaurants and grocery stores. With increased market share comes increased scrutiny. Conventional agriculture interests have been particularly focused on how protein alternatives are being labeled. 2019 has seen a flurry of state legislative activity and related litigation around labeling. At issue – should plant-based proteins be called “meat”?
Current Law & Recent Developments
The U.S. Food & Drug Administration (FDA) regulates the production and labeling of plant-based foods. Pursuant to its authority under the Federal Food, Drug, & Cosmetic Act (FDCA), all labeling must be truthful and not misleading (21 U.S.C. § 343(a)). State laws echo this requirement. At the same time, an increasing number of states have been passing more pointed laws targeting both plant-based and cell-based meat.1 These laws provide that only foods derived from food-producing animals may bear labels like “meat,” “sausage,” “jerky,” “burger,” or other “meaty” terms.
In 2018, Missouri became the first state to pass such a law restricting the use of the term meat. The new law amended that state’s Meat Advertising Law to prohibit the representation of a product as meat when the product “is not derived from harvested production livestock or poultry.” Since the passage of the Missouri law, a number of other states have followed suit with similar legislation—Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, and Wyoming have all passed labeling laws restricting the use of the term meat. In many cases, violations could lead to criminal prosecution.
To be sure, certain states have clarified that they will not consider products to be mislabeled if the label clearly indicates that the product is plant-based. In Missouri, for example, that state has clarified that it will not consider products to be misrepresented if their labeling contains:
- A prominent statement on the front of the package, immediately before or immediately after the product name, that the product is “plant-based,” “veggie,” “lab-grown,” “lab-created,” or a comparable qualifier; and
- A prominent statement on the package that the product is “made from plants,” “grown in a lab,” or a comparable disclosure.
And in September, the Mississippi Department of Agriculture proposed new regulations2 to implement the state’s labeling law that would allow the use of meat and meat product terms on the labels of plant-based food under certain conditions. Namely, the proposed regulations provide that a plant-based food product will not be considered to be labeled as a “meat” or “meat food product” if one or more of the following terms, or a comparable qualifier, is prominently displayed on the front of the package: “meat free,” “meatless,” “plant-based,” “veggie-based,” “made from plants,” “vegetarian,” or “vegan.”
These clarifications from Missouri and Mississippi comport with federal law. That is, to the extent product labeling accurately describes the properties of a given food and is not otherwise false or misleading, a food is typically eligible to bear the desired term. Thus, a plant-based burger can be labeled “burger” provided that its plant-based nature is clearly communicated on the product label.
The FDA’s Stance
Many stakeholders are curious to know where the FDA stands on labeling plant-based proteins. In light of the flood of innovative foods on the market, the FDA is currently in the process of a multiyear effort to modernize food standards of identity with an eye towards promoting continued innovation in food tech. In fact, on September 27, 2019, the FDA held a public meeting to give interested parties an opportunity to discuss the FDA’s efforts to modernize food standards of identity and to provide information about changes the FDA could make to existing standards of identity.
What is a Standard of Identity?
A standard of identity essentially sets out what ingredients a product must contain, which ingredients it may contain, and any manufacturing specifications. Foods subject to a standard of identity must meet the regulatory definition for the food (i.e., milk is defined, in relevant part, as “lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows”). Both the FDA and the U.S. Department of Agriculture (USDA) have standards of identity on the books for a whole host of foods. The USDA maintains standards of identity for a number of meat and poultry products and the FDA maintains standards of identity for a number of other foods.
The FDA’s Enforcement Posture
Former FDA Commissioner Scott Gottlieb may have summed it up best when he acknowledged that “an almond doesn’t lactate” and, at the same time, caveated that the agency has a great number of standards of identities on the books that it will be revisiting in consultation with stakeholders. In the context of protein alternatives, the FDA focuses on whether the use of a standardized term – like milk, egg, or meat – to describe a plant-based product could lead to consumer confusion or might otherwise be construed as false and misleading.
The FDA’s handling of plant-based dairy substitute products provides a window into how the agency may handle plant-based meat labeling going forward. The FDA generally has exercised enforcement discretion in the realm of plant-based dairy substitutes. This means that the agency does not automatically enforce against a plant-based product for using a term like “milk” or “cheese” on the label. Of course, the label must clearly communicate the product’s plant-based properties. At the same time, the FDA does not stand idly by when a product is labeled in a manner that poses consumer confusion concerns.
In 2015, for example, the FDA cracked down on the labeling of an eggless mayonnaise-like product called Just Mayo. In an August 12, 2015, Warning Letter, the FDA found that the use of the term “mayo” in the product name and the image of an egg had the potential to mislead consumers because it could have led them to believe that the products are the standardized food mayonnaise, which must contain eggs as described under 21 CFR 169.140(c). Ultimately, the FDA agreed to permit the company to continue to use the name Just Mayo after the company agreed to other labeling changes.
Looking Ahead
Will the FDA ultimately require “almond milk” to be called “almond drink” or prohibit plant-based proteins from being labeled with “meaty” terms? Balancing consumer understanding and perception against the laws on the books will be key. The outcome will be dictated in large measure by the fruits of the FDA’s multiyear effort to modernize food standards of identity and update the agency’s approach to food labeling oversight generally.
Consistent with the agency’s longstanding approach to fostering continued food tech innovation, it is likely that the agency will ultimately take a flexible approach to regulating the labeling of plant-based foods. At the same time, given disparate stakeholder interests, we can expect to see continued state legislative activity and litigation, including First Amendment challenges, see e.g., Complaint for Declaratory and Injunctive Relief, Turtle Island Foods, SPC et al. v. Richardson, No. 18-cv-4173 (W.D. Mo. Aug. 27, 2018) (challenging the Missouri meat labeling law).
1 Cell-based meat is meat produced through animal cell culture technology and not from a slaughtered food-producing animal. These products are not yet available for commercial sale. The USDA will be taking the lead on the labeling of cell-based meat and, given USDA’s statutory oversight, its stance on labeling is likely to have preemptive effect over state laws.
2 https://www.sos.ms.gov/adminsearch/ACProposed/00024402b.pdf
