Texas considers truth in labeling law for meat-alternative products: Potential consequences in the marketplace and the courtroom

A proposed bill in the Texas legislature could impact the marketing and labeling of meat alternatives in grocery stores and restaurants across the state. Proposed HB 316 prohibits selling products that contain labels or marketing that compares plant-based food to meat or that state that the food “imitates meat, beef, chicken, or pork” when, in fact, the food does not contain any of those products.

Texas would not be the first state to enact such a law. According to the National Agricultural Law Center at the University of Arkansas, 13 states have enacted similar bills. All 13 states target the marketing of meat alternatives, and two of those states also target misrepresentation of labels for rice alternative products.

Definitions in the bill

The proposed bill would define beef, chicken, and pork as “any edible portion of a formerly live and whole . . . carcass, not derived by synthetic or artificial means.” Beef derives from cattle carcass, chicken derives from poultry carcass, and pork derives from swine carcass.

Food is defined as “articles used for human food or drink; and articles used as components for those articles.”

Labels are displays of “written, printed, or other graphic matter on an article or the immediate container, other than a package liner, of an article.”

Labeling is broader, in that it includes labels as well as “other written, printed, or graphic material on an article or any container or wrapper of an article, or accompanying an article.”

Meat is “any edible portion of a livestock carcass that does not contain lab-grown, cell cultured, insect, or plant-based food products.” Livestock is limited to cattle, sheep, swine, goats, and poultry.

Misrepresentation under the law is defined as the “use of a false, misleading, or deceptive oral or written statement, advertisement, label, display, picture, illustration, or sample.”

Section 433A.0002 reserves for the executive commissioner of the Texas Health and Human Services Commission the ability to adopt rules necessary to implement and enforce this chapter. Under this chapter, misbranded food is food that (1) has false or misleading labels; (2) is misrepresented as meat by misleading or deceptive advertising or labeling; (3) does not contain meat, though the advertising/labeling suggests or implies that it does; (4) contains a label including the words “meat, beef, chicken, pork, or any common variation of those terms” while not, in fact, deriving from those products; and (5) contains a label that compares the food’s nutritional value “to that of meat without disclosing the human benefit of the food.”

Determining if a label is misleading

The proposed bill describes different considerations the Texas Department of Health and Human Services (“the Department”) must take under advisement in determining whether an advertisement or label is misleading. This includes the representation made or suggested by the “word, design, device, sound, or any combination” and any suggestion that the food is meat, a meat product, or derived from livestock “in any form.” An example of a statement that would fall under this definition is the claim that plant-based products “cook like ground meat.”

The bill also prohibits certain behaviors, like misbranding food, introducing and/or delivering food “for introduction into commerce” that is misbranded, and receiving this food for commerce that has been misbranded with the intent to deliver and/or introduce the food into commerce for payment. This misbranding, under the proposed bill, centers on meat-alternatives that purport to imitate or compare its product to meat products.

Remedies

The last sections of the proposed bill detail remedies available to the Department, or the attorney general at the Department’s request, to stop the distribution or selling of misbranded foods. This includes petitioning a district court for an injunction and recovering reasonable expenses in obtaining injunctive relief. Should an investigation conclude that a food is in violation of this chapter of the bill, then the Department will tag the food as adulterated/misbranded. The tag on the product must “warn persons not to use the food, remove the food from the premises, or dispose of the food by sale or otherwise until the Department or a court grants permission for the use, removal, or disposal of the food.” This tag is put on the product and it is a marking that should “give notice” to the consumer that the “food is, or is suspected of being, adulterated or misbranded under this chapter and that the food has been detained or embargoed” if the Department finds that the label violates this chapter.

If further investigation reveals this food is not misbranded, the Department will remove the tag.

If the food is not transferred to a safe location after being tagged as misrepresentation, the Department may order a transfer to prevent the food’s unauthorized use, removal, or disposal. The “claimant” or the “claimant’s agent” are responsible for executing the transfers. It is unclear who, exactly, that is. The claimant may recover the food under Section 433A.0008 if the court orders it, if the costs, fees, and expenses of the suit have been paid, if the misbranding can be corrected, and if a bond is executed.

Truth in labeling acts generally are closely scrutinized

The recent truth in labeling acts have been met with close scrutiny in the states that have passed them.

Plant-based food companies have filed lawsuits in Arkansas, Louisiana, Mississippi, and Missouri, arguing constitutional violations of the Free Speech Clause of the First Amendment, the Due Process Clause, and the Dormant Commerce Clause.^[1]

In Missouri, the court found that the plaintiffs did not successfully show a likelihood of success on the merits, and the court denied the preliminary injunction.^[2] The language of Missouri’s statute mirrors Texas’s proposed language in that it bans “misrepresenting” products as meat. In contrast, the court granted a similar injunction in Arkansas because the statute banned “representing” products as meat.^[3] The ACLU appealed on behalf of the plaintiffs the denial of the preliminary injunction in Missouri to the Eighth Circuit. On March 29, 2021, the Eighth Circuit affirmed the District Court’s ruling, finding that the original plaintiffs did not have the substantial likelihood of success on the merits of their claim.^[4]

Mississippi’s statute bans such terms as “vegan burger” and “meatless steaks” as well as labeling plant, insect, or cell cultured food products as meat or meat products. Mississippi’s challenger sued Phil Bryant, then governor of Mississippi, and Andy Gipson, Mississippi’s Commissioner of Agriculture and Commerce, in July 2019.^[5] The plaintiffs dismissed the case with prejudice in January 2021 based on a new regulation that now states that a plant-based food product label “shall not be false or misleading.” The same plaintiff in Missouri also challenged Louisiana’s statute, which mirrors the language of the Arkansas statute by banning the representation of plant-based food as meat. In late November 2020, Louisiana’s Department of Agriculture announced that it will not enforce the law “until the constitutional issue is resolved.”^[6]

Oklahoma is also dealing with a similar lawsuit. Its statute prohibits advertising a product as meat if it is not derived from livestock. It also describes how labels should treat plant-based foods in packaging. This specific exception is what is being litigated. The plaintiffs argued that this special packaging is “expensive” and would “lead to consumer confusion.” In late 2020, the district court in Oklahoma denied the plaintiffs’ request for a preliminary injunction. The court found that the state had an interest in truth in labeling and “preventing confusion or deception of consumers.”^[7] An appeal was filed to the Tenth Circuit on December 1, 2020. On April 16, 2021, the court extended the appellants’ time to file their brief.

We can expect that similar truth in labeling laws targeting plant-based meat-alternatives will also be put forward in other states, leading to hotly contested litigation. For the proposed bill in Texas, the varying decisions across the courts in Missouri, Arkansas, Louisiana, and Oklahoma present an interesting challenge. It will be important in the coming months to watch these developments closely.