Arguments Over Food Names

How can the eating preferences of such a small group of people cause such disruption to multi-billion dollar industries? The Guardian estimates there are just 79 million vegans around the world – less than 1% of the population. And yet, challenging how plant-based foods are labeled as caused a lawsuit frenzy by the National Cattlemen’s Beef Association, Louisiana Department of Agriculture and Forestry, National Milk Producers Association, and even the Arkansas Rice Association. Although PBNM focuses on “food as grown,” I believe it is important for us to understand the challenges that plant-based food manufacturers encounter, and how they are fighting to maintain fair labeling of their foods.

When is milk considered milk? When is meat considered meat? When is cheese considered cheese? These are questions that have been circling the food industry for a long time, and the parameters for labeling the plant-based versions of these foods have been challenged in court numerous times.

In the year 2000, the National Milk Producers Association filed a complaint with the FDA arguing that soy milk cannot be called “milk.” Milk by definition, they reasoned, must come from a cow to be called “milk.” Fifty years ago, the FDA defined milk as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” So, it seems by its own definition, soy and other plant-based milk alternatives cannot be labeled as “milk.” But the FDA chose to consider whether plant-based alternatives could in fact be labeled as “milk.”

In 2015, a judge said in his decision, “The reasonable consumer (indeed, even the least sophisticated consumer) does not think soymilk comes from a cow,” 1 in a class action lawsuit filed against Trader Joe’s, and the lawsuit was dismissed. Plant-based cheese labeling has also been challenged in court.

In 2017, Jim Mulhern, then President and CEO of the National Milk Producers Federation, testified before the House Agriculture Committee the following – “Our grocery store shelves today are filled with all manner of copycat “milk” products that ignore government standards of identity – and mislead consumers about the nutritional equivalence, or lack thereof, to real milk.” He stated the “copycats” are riding on the “healthy halo of real milk,” and the marketing of the “copycats” was misleading the public into believing they were good replacements for milk when in fact, he said the plant-based milks were nutritionally inferior. Perhaps the lexical semantics lawsuit challenging the use of the word “milk” when referring to plant-based milks occurred because in the same testimony, Mr. Mulhern indicated that a “collapse” of the world-wide dairy market occurred in 2008-2009 due to the recession. He said three years later feed prices hit a historic high, and again in 2015-2016 another collapse in the dairy industry occurred. As a result, according to Mr. Mulhern, many farmers have had to leave the dairy industry. According to the USDA Economic Research Service, daily consumption of milk per capita has decreased over each the last seven decades.

Fast forward to February 2023 – The FDA Draft Guidance of Labeling of Plant-Based Milk Alternatives and Voluntary Nutrient Statement was released (23 years after the National Milk Producers Associated filed its complaint). In that report was data from focus groups commissioned and conducted by the FDA which concluded that most people are not confused about plant-based milks. One survey in the report indicated 3/4 of the people understood plant-based milks do not contain cows’ milk, less than 10% of those surveyed thought plant-based milks did contain cows’ milk, and the remainder of people didn’t know one way or the other. People indicated they were comfortable using the word “milk” when referring to various plant-based milks. The report indicated in 2010, 1/5 of U.S. households purchased plant-based milks, and in 2016 the number had increased to 1/3 of U.S. households having purchased plant-based milks ($1.5 billion in sales). From 2017-2019, plant-based sales increased nearly 15% ($2 billion in sales). Sales of plant-based milks continued to rise to $2.4 billion in 2020 according to the FDA. Varieties include soy, rice, almond, cashew, coconut, flaxseed, hemp, hazelnut, macadamia nut, oat, pea, pecan, quinoa, and walnut based. In the guidelines, the FDA recommended manufacturers of plant-based milks voluntarily label how each of the plant-based milks differ nutritionally from cow’s milk since consumers may rely on cow’s milk as a source of various nutrients like Vitamin D or calcium. An example of this differentiation may read “contains lower amounts of [nutrient name(s)] than milk.”

Manufacturers of meat alternatives have encountered similar challenges in court. In May of 2022, the governor of Kansas signed a law requiring meat-alternative products to have “meat disclaimer” labeling such as “meat-free,” “vegan,” or “plant-based.” “(We’re) just making sure when consumers go to the grocery store, they know exactly what they’re buying,” said Kansas Livestock Association lobbyist Aaron Popelka. According to CNBC, the law is partly due to the CEO of Impossible Foods, Patrick Brown, declaring he wanted to replace all animal meat products with plant-based meat products by 2035. Ouch! It may also be disturbing to the meat industry to see a plant-based product labeled as a “burger” and looking like ground beef even though it is clearly labeled as being “made from plants.” The first law banning the use of the words “meat, sausage, jerky, burger, or hot dog” on a plant-based product (wording of the law written in part by the Missouri Cattlemen’s Association) passed in August of 2018. Those who violated the law could be fined up to $1,000 and face a one-year prison term. The following week, Tofurky, along with the help of the Animal Legal Defense Fund, the ACLU, and the Good Food Institute, a non-profit that promotes alternatives to animal products, filed a federal lawsuit claiming the new law was in violation of the First Amendment and that they had not received any complaints about consumers be confused by the wording “plant-based meats.” They also pointed out the edible parts of nuts are fruits are also referred to as “meats.” Arkansas in 2019 was the next state to pass a law prohibiting the use of the words “vegan sausage” and “veggie burger” because they were not animal derived. Fines were up to $1,000 per violation. Their law went a step further. State Representative David Hillman, who also happens to be a rice farmer and past president of the Arkansas Farm Bureau, was sure to include in the bill that the term “rice” could only be used with products that contain rice. The term “cauliflower rice” could no longer be used for cauliflower that is finely chopped and is often used as a rice substitute. Again, the Good Food Institute, along with the ACLU, and Animal Legal Defense Fund stepped in on Tofurky’s behalf to challenge the law stating First Amendment rights had been violated. In October of 2022, a federal judge struck down the law stating it was unconstitutional, and limited Tofurky’s commercial free speech.

The family-owned Upton’s Naturals lost a lawsuit filed by the Mississippi Cattleman’s Association regarding the labeling of their products. “Chorizo” and “bacon” are used to describe the flavor of the products according to Upton’s Natural and their products are clearly marked as plant-based. The Plant Based Food Association and the Institute for Justice challenged the lawsuit, and Mississippi repealed their July 2019 law that forbade meat terms be used to describe plant-based alternatives even though the wording was not misleading. A November 7, 2019 Forbes Magazine article entitled, “Mississippi Ends Ridiculous Ban on Labeling Veggie Burgers ‘Veggie Burger,’ ”written by Nick Sibilla, said it all. He wrote “If consumers understand that buffalo wings aren’t from flying bison and that chickens don’t have fingers, they can surely grasp that a “veggie burger” is made from plants.” This law would have fined the plant-based manufacturers up to $1,000 per offense and possible jail time.

These comments, by the judge in the Trader Joe’s lawsuit and that of Nick Sibilla of Forbes Magazine are tongue-in-cheek comments, but it shows how ridiculous these lawsuits have been. Criminalizing the labeling of plant-based products that are clearly labeled as not being derived from an animal has not worked in a court of law. Every law that has passed to prevent plant-based foods from being “mislabeled” and to “protect the consumer” from being “confused” or “mislead” has been challenged and has not
stood up to legal scrutiny (two lawsuits remain pending).

But the fight is not over. Literally, as I write this article, the Louisiana Court of Appeals ruled the law forbidding meat terminology on food not derived from an animal can be enforced, but “only applies to companies that are intentionally trying to deceive consumers.” The 2019 Louisiana Truth in Labeling of Food Products Act already prohibits consumers from being deceived, so this ruling is nothing new. The Louisiana Commissioner of Agriculture and Forestry responded to this latest ruling by saying, “We are pleased with the recent decision by the U.S. Fifth Circuit Court of Appeals to uphold the State’s Truth in Labeling of Food Products Act, the purpose of which is to protect consumers from the intention misbranding or misrepresenting of any food products as an agricultural product.” Tofurky, the Animal League Defense Fund, and The Good Food Institute said this ruling was a win for them and said, “Louisiana lawmakers were clearly doing the bidding of the animal agriculture lobbying when they passed this protectionist law, but the Court’s ruling neutralized those unconstitutional efforts and restored some fairness to the marketplace.”

Time and time again, the courts have ruled that labeling plant-based products is not confusing consumers, who clearly understand when they are buying a product derived from plants, and not an animal. Thankfully, plant-based companies are winning against the relentless big players in the lexical semantics court battles. Vegans are just 1% of the population, yet a report published in 2022 reported 62% of all U.S. households bought plant-based products in 2021. 2 The plant-based food industry is growing at a rapid rate and that constitutes the real issue that concern leaders in the dairy and meat industries.

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1 https://www.foodnavigator-usa.com/Article/2015/12/04/Term-soymilk-not-misleading-says-judge-in-rader-s-Joe-s-lawsuit

2 U.S. plant-based food retail sales hit $7.4 billion, outpacing total retail sales, despite supply chain interruptions and pandemic restrictions creating widespread volatility in the food industry.(2022). SPINS.

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