Photo: Tofurky

“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.

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