Brooks Law Digest: Plant-based Alternatives

Food Law: A Practical Guide is now available for purchase on the American Bar Association website. The treatise covers all areas of practice within the context of “food law,” including intellectual property, litigation, regulatory law, and policy.

A putative consumer class action has been filed in the U.S. District Court for the Northern District of California alleging that Kellogg Sales Company’s advertisement of its MorningStar brand “Veggie” products (including “Veggie Burgers” and “Veggie Dogs”) violates numerous California consumer protection laws. Plaintiffs allege that the “Veggie” labeling is false or misleading because it suggests that vegetables are the primary ingredients in such products when they instead are predominantly comprised of grain and oil. Plaintiffs are seeking a recall of Kellogg’s MorningStar products labeled in this manner, a corrective advertising campaign, disgorgement, and restitution.

USDA’s Food Safety and Inspection Service has responded to Harvard Animal Law & Policy Program’s petition for FSIS to develop a labeling approach for “cell-based” meat and poultry products that respects First Amendment commercial speech protections by not requiring new standards of identity and not banning the use of common or usual meat or poultry terms or other product terms specified in current codified standards of identity. In its letter, FSIS “agrees that more information is necessary to develop new labeling requirements for these products,” stating that in response to the Harvard petition the agency filed an advance notice of proposed rulemaking (ANPR) on September 3, 2021, “to request comments pertaining to the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or Poultry Products Inspection Act.” Conversely, FSIS has denied a February 9, 2018, petition by U.S. Cattlemen’s Association which urged the agency to exclude “cell-based” meat and plant-based meat substitutes from the definition of “beef” and “meat,” citing the FDA’s exclusive jurisdiction over plant-based products and the USDA’s September 3, 2021, ANPR regarding labeling of cultivated meat.

Texas House Bill 242 would amend the state Health and Safety Code to define terms such as meat, beef, pork, and poultry to specifically exclude any “cell-cultured, plant-based, or insect-based food product.” The bill would declare a plant-based meat analogue as misbranded if it does not prominently display a term such as “analogue,” “meatless,” or “plant-based” immediately before the name of the product and a cultivated meat product as misbranded if it does not prominently display the term “cell-cultured” or “lab-grown” immediately before the name of the product.

A federal judge has granted summary judgment to Miyoko’s Kitchen in the company’s challenge to a California state law restricting the use of terms and phrases such as “butter,” “cruelty-free,” and “lactose free” on plant-based products. The court relied heavily on a 2018 empirical study by Silke and Adam Feltz demonstrating that the vast majority of consumers were not misled by such labels. The court, however, granted summary judgment to the State regarding Miyoko’s use of “hormone free” on its vegan butter given that the product contains “naturally occurring plant hormones.”

A new research article by Carmen Piernas, Brian Cook, Richard Stevens, Cristina Stewart, Jennifer Hollowell, Peter Scarborough, and Susan A. Jebb published in PLOS Medicine, “Estimating the Effect of Moving Meat-Free Products to the Meat Aisle on Sales of Meat and Meat-Free Products: A Non-Randomised Controlled Intervention Study in a Large UK Supermarket Chain,” evaluates whether changing the positioning of meat-free products in stores may be an effective method to reduce meat consumption. The study found that prominent positioning of meat-free products in the meat aisle of supermarkets “did not result in decreased sales of equivalent meat products,” but did lead “to a significant increase in sales of meat-free products, which was sustained over time” (by an average of 25%).

House Bill 4108, the Healthy Future Students and Earth Pilot Program Act of 2021, would direct the Secretary of Agriculture to establish a pilot grant program and make “at least 50 grants” to school food authorities to provide “100 percent plant-based food options and 100 percent plant-based milk options.” The grants would be used for training food service personnel, pupil engagement and education, and outreach to producers. Priority for the grants would go to schools that serve a high proportion of children who are eligible for free or reduced-price lunches and those from socially disadvantaged backgrounds.

Senate Bill 1082, the Telling Agencies to Stop Tweaking what Employees Eat (TASTEE) Act of 2021, would prohibit agencies or contractors of agencies that provide food services to dining facilities of the agency from establishing a policy that prohibits serving a particular “type of food.” The bill is designed to target meatless Mondays.

Minnesota House Bill 2583 would require the state commissioner of agriculture to establish a plant-based food research and development grant program and appropriate $2 million “to provide competitive grants to support research and development projects to accelerate the scaleup and commercialization of plant-based food products.”

The Ninth Circuit has affirmed the Food and Drug Administration’s approval of Impossible Food’s soy leghemoglobin as a color additive. Judge Diarmuid O'Scannlain dissented from the majority opinion, stating he “would dismiss the petition for review on the basis that the Center for Food Safety (“CFS”) lacks constitutional standing.” Judge O'Scannlain’s dissenting opinion outlines his reasoning that CFS “failed to demonstrate an injury in fact sufficient to establish Article III standing.”