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Daily news and analysis about the food tech revolution

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Tofurky and the Plant Based Foods Association Are Challenging an Oklahoma Plant-Based Labeling Law

The Animal Legal Defense Fund filed a complaint this month against an Oklahoma plant-based labeling law on behalf of Tofurky and the Plant Based Foods Association.

It’s not the first time Tofurky and the Fund have teamed up to challenge plant-based labeling legislation: In the last couple of years, they’ve also filed suits in Louisiana and Arkansas. But there’s something different about the Oklahoma law—and that difference could make it trickier for plant-based producers to challenge.

Starting in 2018, a handful of U.S. states passed laws that restrict plant-based producers from using certain terms on their product labels. Missouri, the first state to pass such a law, attached fines and potential jail sentences to the use of the word “meat” on non-conventional product labels.

Laws like this have a chilling effect on the plant-based industry, Tofurky’s president and CEO Jaime Athos told The Spoon in a recent Zoom interview. “The specters of potential lawsuits and litigation—especially when you look at what the damages could amount to—can really influence people’s decision-making,” he said.

The laws only apply in individual states, and the inconsistencies in labeling requirements from one state to the next can make interstate commerce for plant-based products unfeasible. It would be prohibitively expensive for many smaller companies to change their labels nationwide, and impossible or impractical to develop separate labels for separate states.

On paper, the rationale behind the laws has to do with something called consumer confusion: The idea that if plant-based producers are allowed to use terms like “meat” and burger,” unwitting consumers will be tricked into buying their products.

But Athos pointed out that plant-based meat products like Tofurky’s have been around for decades. People today are familiar with the use of terms like “veggie burger” to describe plant-based products, he said—and those terms can actually help consumers to understand how to use a new product.

As one of the older players in the plant-based space, Tofurky has stepped up to pursue multiple challenges against different states’ labeling laws. “I think a lot of the confidence to take the fight on comes from being in the business for a long time,” Athos said. “We can see the absurdity of being told that we have to change the names of our products, which people have eaten millions and millions of iterations of without any confusion or complaint for decades now. I think it does put us in a different frame of mind than a newer company would have.”

Tofurky and other groups have challenged speech bans under the First Amendment, arguing that they unfairly prohibit truthful commercial speech. And because the U.S. places a strong value on free speech, it takes a lot to defend a speech restriction, according to Amanda Howell, who is a senior staff attorney at the Animal Legal Defense Fund.

“If the law is a complete ban on speech, the defendants have to show that that law is serving a substantial government interest,” Howell said—and that there’s no alternative to banning speech that could also serve that government interest.

Tofurky and the Animal Legal Defense Fund have had some success in challenging labeling laws under the First Amendment. Last year, a federal court granted an injunction to Tofurky in an Arkansas case, halting the enforcement of that state’s labeling law. “The court said we were likely to win with a First Amendment challenge, because the law is unconstitutionally restrictive,” Howell said.

Oklahoma’s Meat Consumer Protection Act was passed last year to fanfare from the state’s cattlemen’s association, which described the law as one of its “lead priorities” in a press release. It’s safe to say that industry interests influenced the law: One of the legislators who introduced it has won the Oklahoma Cattlemen’s Association’s highest award.

None of the Oklahoma state legislators who sponsored the law responded to The Spoon’s requests for comment.

The Meat Consumer Protection Act doesn’t ban the use of certain words outright. Instead, it requires plant-based meat and dairy companies to disclose the vegan or vegetarian nature of their products on their product labels. It also mandates that those disclosure statements be as large and prominent as the names of the products.

To challenge this kind of law under the First Amendment, it would be up to the plaintiff to prove that the legislation isn’t serving a reasonable government interest. Plant-based producer Upton’s Naturals and the Plant Based Foods Association have already tried to challenge the law on First Amendment grounds, but were denied an injunction last year.

Now Tofurky and the Animal Legal Defense Fund have taken over the suit. They’re taking a different approach, arguing that the law is unconstitutional for three key reasons: First, there are already federal laws concerning food product labels, which should take precedence over the state law. Second, the language of the law is vague, which could mean that it gets enforced in an arbitrary, discriminatory way. And third, the law puts a burden on interstate commerce by creating a patchwork of different state laws.

Though Howell was confident about the Fund’s arguments in the case, she expressed concern that the Oklahoma law might set a new precedent for other states. “Legislators may see that these bans on speech are uphill battles, and stop pursuing them because of the burden to show a government interest,” she said. And if that happens, “the next wave of these laws might be disclosure laws like Oklahoma’s, which would create a patchwork.”

While Tofurky and the Plant Based Foods Association pursue the legal challenge, the Association is also working on mounting collective action to discourage legislators from supporting labeling laws in the first place.

The Oklahoma case will likely serve as a signal to other state legislatures. We may see more states pick up disclosure requirements like Oklahoma’s, hoping to discourage challenges. But success for Tofurky could send a message that it just isn’t worth it for states to spend money defending plant-based labeling laws.

Good Food Institute: Plant-Based Food Consumers Spend 61% More in Food Retail

We’ve known for a while now that the current spikes and surges in demand for plant-based protein are in large part because of the COVID-19 pandemic’s impact on our food system. Now there are some new numbers that back those claims up and give insights into just how big plant-based products have gotten in the food retail sector, thanks to the Good Food Institute (GFI). 

GFI’s new report, “Plant-Based Strategies for Retail: An overview of leading plant-based assortment, merchandising, and marketing tactics at top U.S. retailers,” lays out some of the growth statistics of the plant-based meat sector, and examines the forces driving such a rapid adoption in the retail space. 

For context, the report notes that U.S. retail sales of plant-based food were worth $5 billion in 2019. While we don’t yet have the full sales numbers for 2020, GFI notes in its report that “plant-based sales are growing 14 times faster than total food sales” and that consumers who buy plant-based food products tend to spend more: 61 percent of plant-based food shoppers are considered “valuable,” and spend 61 percent more than the average shopper. 

All of those numbers are pre-pandemic, which means this time next year, figures will likely be even higher. It’s an understatement to say the pandemic has had a major impact on plant-based meats. According to GFI’s report, nearly one quarter of consumers surveyed report eating more plant-based meals because of COVID-19, with Millennials and Gen Z being the largest age group in this percentage. Both groups (41 percent for Gen Z and 37 percent for Millennials) reported they “will be less likely to buy [traditional] meat” because of COVID-19 fears, compared to 25 percent for all age groups. The report cites health concerns (physical and mental), an intent to buy more health-related items, and general fears around the spread of COVID-19 as plausible reasons for this uptick.

Meat alternatives, in particular, saw positive increases. GFI’s report outlines some figures from some of the major plant-based meat companies: 

  • Beyond’s retail sales increased 194.4 percent over the second quarter of 2020; the company currently has products in roughly 25,000 retail stores across the U.S.
  • Impossible saw a 500 percent increase in grocery stores selling the Impossible Burger during the pandemic months, and the company’s products are available in 9,200 stores nationwide.
  • Morning Star farms saw a 66 percent increase in March sales.
  • Gardein sales increased by 65 percent from March 13 to April 19, 2020.
  • Tofurky sales increased 40 percent from February through April of 2020. 

It’s likely the plant-based foods sector would have seen these high numbers even without the pandemic — only over a much longer timeframe. For example, Impossible would probably have reached that 500 percent increase in grocery retailers eventually, but it likely would not have happened in a matter of a few short months had there been no pandemic.

Exactly how long it would have taken sans pandemic we’ll never know, but regardless, sales of plant-based foods aren’t going to subside once COVID-19 does. As GFI’s report notes, this demand for plant-based foods “is a consumer shift, not a fad.”

That in turn means we’ll see more food retailers (and restaurants) selling these products, more alt-protein companies setting up direct-to-consumer e-commerce stores like those of Beyond and Impossible, more food tech accelerators dedicated to alt-protein, and, of course, far more investment in the coming months.

Plant-Based Veteran Tofurky Launches Burger Amid Stacked Competition

Early plant-based food maker Tofurky, which turns 40 this year, today launched its own beef-like burger, joining the likes of Beyond Meat, Impossible Foods, Nestle’s Sweet Earth, Kellogg’s Incogmeato and many others — it’s a crowded space, to say the least.

The company actually brought a formless beef alternative product to the market late last year, Forbes reports, but it was soon scrapped. Its new faux beef product includes two patties made of a combination of soy protein, vegetable protein and wheat gluten and lightly seasoned with salt, onion, garlic and black pepper. It is available now at more than 600 Target locations for $5.99.

Tofurky said in the release that its burgers have a more sustainable footprint than the competition since it uses all parts of the soybean. That’s not the case when it comes to pea protein, the primary ingredient used by Beyond Meat, Tofurky said. And unlike Impossible, Tofurky’s ingredients are non-GMO (FYI, no evidence exists to suggest that GMOs are harmful to humans). Tofurky also points to the sustainability of its packaging: “recyclable cartons that tout 23 percent less paperboard material, and inner packaging [that] has 69 percent less plastic film waste than others in the space.”

So why launch a faux meat burger now? Apparently, to capitalize on people resolving to eat less meat in the new year. “Many flexitarians resolve to go completely plant-based for the month of January, so we wanted to provide a new burger option now, ahead of summer grilling, that is affordable, delicious, and accessible,” said Jaime Athos, president and CEO of Tofurky.

The increasing popularity of the plant-based alternatives space has been kind to Tofurky, which for the first time in its history accepted private investment last year after seeing increased demand for its products. Tofurky also saw more good news when Mississippi pulled back on a proposed restrictive food labeling law that would have prevented plant-based companies from using words such as “burger,” “hot dog” and even “meat” on their packaging. The company had been part of a group suing the state as well as several others over similar proposed laws.

We’ll have to see if Tofurky’s hot streak continues and consumers embrace its burger.

A Win for Veggie Burgers: Mississippi to Table Rigid Plant-based Meat Labeling Restrictions

In a win for free speech and veggie burgers everywhere, yesterday Mississippi officially revised its restrictive labeling rules around plant-based meat. The original regulations restricted companies from using traditional meat terms like “burger,” “hot dog,” and indeed “meat” on their packaging, even when preceded by terms like “vegan” or “plant-based,” arguing that the lingo could confuse consumers. This despite the fact that we’ve been buying veggie burgers for decades.

Mississippi’s restrictive meat labeling legislation went into effect in July of this year. In response, the Plant Based Food Association (PBFA) and member company Upton’s Naturals immediately sued the state, claiming that the new rules were a violation of the First Amendment. As a result of the lawsuit, the Mississippi Department of Agriculture proposed a new regulation in September that would let plant-based meat companies use terms like “veggie burger” and “vegan hot dog.” Yesterday that regulation took effect.

Mississippi wasn’t the only state to institute such strict labeling rules over the past year or so. Arkansas, Missouri, and a dozen other states have also banned a myriad of meat labeling terms. Under many of the states’ rules, each “offense” could be punishable by a $1,000 fine or one year in jail.

But plant-based meat wasn’t going to take these restrictions lying down. In August of last year the PBFA, Tofurky, the ACLU, and the Good Food Institute formed a coalition to sue Missouri, arguing that the new rules violated the First Amendment of the U.S. Constitution. The group also challenged similar laws in Arkansas.

Jaime Athos, the CEO of Tofurky and President of the Board of the PBFA, spoke with me about the labeling issue in depth at SKS 2019 last month. There he told me that these labeling bills are a result of pressure from meat lobbies, which are threatened by the recent astronomical growth of the plant-based meat sector. They don’t actually serve the consumer. In fact, he argued that they could actually end up confusing the consumer, since people have been buying veggie burgers and vegan hot dogs for decades.”It’s insulting to the consumer,” he said.

It seems that at least in Mississippi, Tofurky has successfully netted a win for plant-based meat. But there are still many other battlefronts they have to win. “We hope that other states that introduced similar legislation in the past year, including Arkansas and Missouri, take note of Mississippi acknowledging and accepting already-used, clear qualifying terms such as ‘meat-free,’ ‘meatless,’ ‘plant-based,’ ‘vegetarian,’ and ‘vegan’ to describe plant-based protein products,” Athos wrote in an email statement to The Spoon.

Months ago, Athos told me that he and the coalition were fighting to establish a precedent with one of their three suits which would eventually kill all plant-meat labeling laws. This latest win with Mississippi could be just the precedent they were hoping for.

Tofurky CEO Explains Lawsuit, Says Arkansas Meat Labeling Law is “Unconstitutional”

“Free speech” is an argument that has justified a myriad of historic cases. Now it’s being used by plant-based meat producers to protect their right to call their products what they want.

This week the American Civil Liberties Union, The Good Food Institute, Animal Legal Defense Fund, and ACLU of Arkansas filed a lawsuit on behalf of alternative meat company Tofurky to challenge an Arkansas law that restricts meat labeling terms. Under the law, which was signed this March and is scheduled to go into effect on July 24, using words like “veggie burgers” or “plant-based sausages” on food could incur fines up to $1,000 per package (seriously). Alternative milks would also be considered mislabeled and subject to fines.

According to its press announcement, Tofurky is arguing that the Arkansas law violates the First and Fourteenth Amendments by “improperly censoring truthful speech and creating consumer confusion in order to shore up the state’s meat and rice industries.”

This law may sound like an almost silly attempt on Big Meat’s part to quell the uprising in plant-based meat popularity. That’s probably because it is. The law’s main argument is that alternative meat companies using terms like burgers, hot dogs, and the like — even when accompanied with words like vegan or plant-based — are confusing consumers. However, Tofurky and others fighting the law think that’s a load of, well, baloney.

“It’s a pretext to say that this law is about consumer confusion,” Tofurky CEO Jaime Athos told me over the phone. He argues that continuing to label plant-based burgers and sausages as such is less confusing to the consumer. “We’ve been buying veggie burgers for decades,” he said. “It’s important to preserve our use of language.” In fact, the alternative terms for these products — such as veggie “pucks” or “discs” in lieu of “burgers” — are not only unappealing, they could actually end up being more confusing in the long run.

The idea of buying plant-based “pucks” may seem ridiculous, but repercussions to the meat labeling laws passed by Arkansas and twelve other states could be quite serious indeed for alternative meat companies. Missouri’s law is a criminal statute, which means that each violation — so, each package of veggie “sausages” or “ham” — could cost up to $1,000 or one year in jail. “That’s scary once you start doing the math,” said Athos.

So far, no actions have actually been taken to fine or jail offending plant-based meat companies. If and when they do, it’s not even clear who will pay. Will it be the maker of the “meat” in question, the supplier who sells it to the retailer, or the retail who sells it to the consumer? “We don’t know who’s on the hook for it,” said Athos. “It’s really convoluted.”

Despite the potential repercussions, Tofurky has yet to pull its products from any shelves. Athos is confident that they will come out on top. “This law is an inappropriate use of government power. It’s ultimately unconstitutional and will be found to be so,” he told me.

Tofurky and its posse is fighting a plant-based war on several fronts. In addition to Arkansas, over a dozen other states have passed similar meat-labeling restriction laws. Tofurky is currently also suing Missouri (the case is ongoing) and is involved in a similar case against Mississippi. They’re out to not just to protect its own rights, but that of all plant-based meat companies: “We’re hoping to set a precedent,” Athos told me.

It’s interesting that Tofurky has been the one to step up and make a stand against these laws. After all, they’re not among the newer raft of companies trying to make plants so meat-like that they’re indistinguishable from the real thing, like Beyond Meat and Impossible Foods. It seems that Beyond Meat, which aims to be sold alongside beef in the meat section of grocery stores, could more easily lead to customer confusion than Tofurky (though the risk of customers missing the “plant-based” label is still pretty slim).

The labeling issue will become even more contentious as cultured or lab-grown meat enters the scene. Unlike plant-based meat, which is made of plants, cultured meat is made of actual animal tissue. Theoretically, it will be indistinguishable from meat got from a slaughtered animal.

The FDA has already had several meetings to try and nail down regulatory frameworks around cell-based meat. While they’ve decided that the new food will be jointly regulated by the FDA and USDA, they have yet to land on how exactly it will be labeled — as plain-old meat, cell-based meat, or otherwise. We still have a few years until cultured meat gets to market, but as that day draws closer they’ll need to decide where to draw the line on what gets to call itself meat, lest they bring on even more lawsuits.

In the end, passing laws the one in Arkansas make meat producers look more running scared than anything else. And they should be. The plant-based meat market is growing at 6.8 percent CAGR and doesn’t seem to be slowing down. “This is coming from their own fears,” Athos told me, referencing the pressure meat companies are under as of late.

Passing a law isn’t going to stop people from wanting plant-based burgers, sausages, and pulled pork. It just might end up costing both sides a lot in legal fees.

With the Growth of “Bleeding” Burgers, How are the Tofurky’s of the World Faring?

Beyond Meat and Impossible Foods forever changed the plant-based meat industry when they rolled onto the scene with vegan burgers that looked, cooked, and tasted like the real thing. A veggie burger used to mean a patty made of black beans, quinoa, and a few vegetables. It was usually reserved for vegetarians and vegans, and many carnivores didn’t see a reason to go near it.

But now there’s a new consumer group in town: the flexitarian. Flexitarians are working to cut down on their meat consumption, and, for a growing number, that means turning to plant-based meats to replace the real thing. That’s exactly who Beyond and Impossible are targeting. Their meat-like burgers (and, in Beyond’s case, chicken strips and sausage) are specifically meant to appeal to consumers who don’t want a black bean burger but something as close to a beef burger as you can get without the cow.

Recently I got curious: If meat-like meat alternatives are all the rage and catalyzing huge growth in the plant-based meat category, how are the OG, less “sexy” veggie burgers and soy-sausages faring? The Boca burgers? The Tofurkys? The Field Roast sausages?

According to Erin Ransom, Director of Marketing for Tofurky, these early vegan food companies are doing quite well for themselves right now. She explained that the growing popularity of plant-based foods, spurred by media darlings like Beyond and Impossible, has translated to increased demand for the veteran vegan meat companies, too.

Dan Curtin, President of Greenleaf Foods, which includes vegan meat companies Lightlife and Field Roast, also acknowledges the impact that Beyond and Impossible have had on the plant-based meat category. “What [they’ve] done is bring attention to this category and help support it,” he told me over the phone.

Photo: Field Roast sausages.

On one hand, that growth is great for the plant-based meat industry. It means that vegan proteins are more widely accessible (and appealing) to people across the country, not just in urban areas. On the other, that uptick in demand translates to pressure on the manufacturers to increase production. Tofurky, for example, is having difficulty filling their orders. They’re not alone: companies like Beyond Meat have also been experiencing difficulty keeping their products on shelves. “It’s a unique conundrum,” said Ransom.

That doesn’t mean there aren’t ways for plant-based meat companies to fulfill demand. But, as Ransom told me, it probably won’t be a single solution. Existing players will build more production facilities. Supply chains will become more sophisticated, and technology more efficient. Investment will (continue to) pour into the space. More small startups will enter the market. So will Big Food, including industrial meat companies, who can help amp up production capacity for plant-based meats and also ensure good product placement on retail shelves.

Though they may be grateful for the influence of Beyond/Impossible, that doesn’t mean veteran vegan meat companies will try to copy their meat-like products exactly. “We’re not chasing the ‘bleeding anomaly’ [of the Impossible burger],” Ransom told me.

But the effects are clear. Tofurky is working to ensure their newer products, from shredded “chicken” to vegan ham, have the same taste, texture, and mouthfeel as animal protein. Earlier this year Boca Burgers reformulated and rebranded their classic veggie patty, making their burgers bigger and “meatier” to appeal to flexitarians. Lightlife’s website claims its products are “meat without the Middleman.” They may not be trying to make a bleeding burger, but they are definitely trying to make a meat-like burger.

One thing I wonder is how vegetarians and vegans feel about all this. If they don’t want to eat meat in the first place, will they want to eat plant-based meat that is trying to act like meat? Or are companies like Field Roast and Boca alienating their original consumers as they reformulate to appeal more to flexitarians?

As of now, most of these vegan meat veterans still offer classic products like black bean and quinoa burgers. But if flexitarianism continues to grow (and I don’t see why it wouldn’t) vegan meat companies will likely continue to shift their image to become meat companies. The meat just happens to be made out of plants.