Brooks Law Digest: Labeling Restrictions

The Eighth Circuit has affirmed a 2019 denial of Tofurky’s request for a preliminary injunction in a case challenging Missouri’s law that criminalizes representing a product as “meat that is not derived from harvested production livestock or poultry.”

New York Senate Bill 5396 would declare a food not containing meat misbranded if “the food product is labeled or branded in a false, deceptive or misleading manner that misrepresents the product as meat or meat food product . . . or as poultry.”

Texas Senate Bill 883 would declare a food misbranded if it is “advertised or labeled as containing or imitating meat” if “any part of its labeling is false or misleading; the food is misrepresented as harvested meat through the use of any misleading or deceptive advertising or labeling; any portion of the food’s advertising or labeling suggests or implies that the food imitates meat, beef, chicken, or pork when the food does not; the food includes a label stating ‘meat,’ ‘beef,’ ‘chicken,’ ‘pork,’ or any common variation of those terms, if the food does not contain the products listed on the label;” or “the food’s label includes a claim comparing the food’s nutritional value to that of meat without disclosing the human benefit of the food.” “Human benefit” is not defined. The bill defines “meat” as “any edible portion of a livestock carcass that does not contain lab-grown, cell cultured, insect, or plant-based food products.”

Texas House Bill 2277 would declare a food misbranded if it is labeled with “a term that has a [federal] standard of identity, if the product does not meet the [federal] standard of identity”; “a claim that the food product is nutritionally similar or superior to a food product with a [federal] standard of identity unless the food product’s label contains a factual comparison of the food products’ nutritional values”; or “an image, depiction, or graphic of a livestock animal, if the food product does not contain a product derived from a livestock animal,” unless the food is labeled with “the word ‘imitation’ immediately followed by the name of the product imitated” and, as applicable, the words “this product does not contain animal protein,” “meatless,” “meat free,” or “egg free.”

Texas House Bill 2217 would declare a food misbranded “if it is an imitation of another food, including any food that approximates the texture, flavor, appearance, or other aesthetic qualities of or the chemical characteristics of any specific type of poultry or poultry product, meat or meat food product, egg or egg product, or fish” unless the food is labeled with “the word ‘imitation’ immediately followed by the name of the food imitated” and, as applicable, the words “this product does not contain animal protein,” or the words “meatless,” “meat free,” or “egg free.”

An article by Eryn Terry, “The Regulation of Commercial Speech: Can Alternative Meat Companies Have Their Beef and Speak It Too,” published in the Vanderbilt Journal of Entertainment and Technology law, explores the fight over labeling of plant-based and cultivated products.

Wisconsin Senate Bill 83 would prohibit the labeling of any product “any type of milk” unless it is milk from a cow or “hooved or camelid mammal” or a product defined as milk under federal law.

Wisconsin Senate Bill 81 would prohibit labeling of any product as “a type of dairy product” unless the product is made from cow or “hooved or camelid mammal” milk or a product defined as milk under federal law.

Wisconsin Senate Bill 82 would prohibit the labeling of any product as “meat, or a similar term unless the food product is derived from an edible part of the flesh of an animal or any part of an insect . . . and does not include cultured animal tissue that is produced from animal cell cultures.”

Kansas House Bill 2204 would declare a “meat analog” misbranded if its labeling utilizes a meat term and does not include a disclaimer of the same font, style, and size that says “this product does not contain meat,” “meatless,” or “meat-free.”