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New Oklahoma law would require changes in plant-based package labeling to avoid ‘consumer confusion.’ Vegan marketers cry foul.

Upton’s Naturals labels its Updog, Chorizo, Cheesy Bacon Mac and other products as vegan. But a new law in Oklahoma, slated to go into effect on Nov. 1, would force them – and similar products from dozens of other brands – off the shelf.

MISREPRESENTATION?

The reason? Under the Oklahoma Meat Consumer Protection Act, signed into law on May 19, the food is being “misrepresented as meat that is not derived from harvested production livestock” and is thus confusing to consumers. The only way Upton’s and others using meat terminology could sell their products would be if their packaging identified them as plant-based “in type that is uniform in size and prominence to the name of the product.”

Let’s say you’re selling a package of veggie-based “hot dogs” or “burgers.” Under the new law, you’d need to include a descriptor such as “vegan” or “meatless” with the same prominence as you used for the type of product. Penalties for violating the act can include fines of up to $10,000 per offense and up to a year in prison.

Producers of plant-based meats see this as just so much tripe. They filed a First Amendment challenge in federal district court in Oklahoma City on Sept. 16 to prevent the new law from taking effect. They also seek attorneys’ fees and unspecified damages.

Plaintiffs are Chicago-based Upton’s (upstonsnaturals.com) and the Plant-Based Foods Association (PBFA, plantbasedfoods.org), San Francisco. They have joined forces with the Institute for Justice (IJ, ij.org), Arlington, Va., which includes under its auspices the National Food Freedom Initiative.

‘PROTECTING THE MEAT INDUSTRY’

IJ argues that the new law’s language requirements are typically reserved for potentially harmful products such as cigarettes and alcohol, not vegan foods. “Oklahoma’s law has nothing to do with health and safety and everything to do with protecting the meat industry from competition. A small company like Upton’s Naturals can’t afford to change its labels to satisfy their competitors’ demands, and they shouldn’t have to because their labels are speech protected by the U.S. Constitution,” the organization says.

IJ Atty. Milad Emam adds that “This new law won’t tell consumers anything they don’t already know, but it will have a devastating effect on vegan and vegetarian food companies, since their perfectly honest and understandable labels will now be illegal in Oklahoma. This law, which was passed to prevent competition with the meat industry, clearly violates the First Amendment.”

Proponents of the new law see it quite differently. The lead sponsor of the bill in the Oklahoma House of Representatives was Rep. Toni Hasenbeck, a member of the Oklahoma Cattlemen’s Association, which in August presented her with a Legislative Appreciation Award.

“Common sense tells us that for plants to become ‘pork,’ those plants must be fed to a pig,” said Roy Lee Lindsey, executive director of the Oklahoma Pork Council, which supported the bill along with the Oklahoma Cattlemen’s Association and the Oklahoma Department of Agriculture, Food and Forestry.

‘CONFUSING FOR SHOPPERS’

“Clever marketing practices and deceptive labeling on plant-based meat alternatives can be confusing for shoppers looking to purchase meat-based items at the grocery store,” said Micheal Bergstrom, a state senator from Adair, Okla. The new legislation, he added, “ensures that clarity and accuracy of labeling meat and plant-based food items, giving consumers peace of mind that they are purchasing exactly what they intended.”

This line of reasoning baffles Daniel Staackmann, who founded Upton’s in 2006. He notes that it is vitally important for his customers to know that his products do not contain meat.

“Our labels are perfectly clear that our food is 100% vegan. But now our meat industry competitors in Oklahoma want to force us to redesign our labels as if our safe, healthy products were potentially harmful. It’s not the first time we’ve had to fight a state law created by our competitors, and we look forward again to defending our First Amendment right to clearly communicate with our customers.”

Staackmann adds that if the law goes into effect, he would have to choose between changing all the company’s packaging, creating new packaging just for Oklahoma, or no longer selling product in the state. Existing packaging is clear and tells the product story in the most advantageous way, he says. Going through the time and expense of changing the labeling would also crowd out speech already on the existing packages, he argues.

There is a parallel here, Staackmann says, to the ongoing disputes over using the term “milk” for soy milk and almond milk. “I think the different cattlemen’s associations saw what happened when the milk industry ignored the rise of non-dairy milk, and they’re trying to get ahead of it,” he explains. “We joined this lawsuit more for consumers than for us. From a consumer standpoint, the whole thing is ridiculous. We’ve never had anybody write us or call us saying they were confused about our products.”

Upton’s, which focuses on meat alternatives using ingredients such as wheat-based seitan and jackfruit, sells its products nationwide, including in Whole Foods. It is a founding member of PBFA, which represents more than 170 plant-based food companies. Michele Simon, PBFA’s executive director, says most, if not all, will be negatively impacted by this law if they want to do business in Oklahoma.

She adds that retailers wanting to sell plant-based foods in the state wouldn’t have the same access to these products as competing retailers in other states. The proposed law would also stifle innovation for companies seeking to offer new foods to Oklahoma consumers, Simon explains.

PLANT-BASED IS ‘ON FIRE’

“The plant-based meat category is on fire right now, with consumers demanding healthier and more sustainable options as alternatives to animal products,” according to Simon. “Oklahoma’s law, along with similar laws in several other states, is the meat lobby’s anti-competitive response to the increased consumer demand for plant-based options. Whatever happened to free-market competition?”

Under its 2019 statutes, Oklahoma already required plant-based foods to label products as being derived from plant-based sources, but without requiring this display to be “uniform in size and prominence” to their product names, according to IJ.

“Oklahoma already had a law prohibiting misleading labels,” said IJ Senior Attorney Justin Pearson. “But since the meat industry couldn’t use that law to thwart honest competition, they encouraged the Legislature to pass a new law. The First Amendment does not allow the government to compel speech just to protect special interest groups from competition.”

Upton’s Naturals and PBFA previously teamed up with IJ to challenge the 2019 Mississippi law preventing plant-based foods to use common meat terms on their labels. Shortly after their federal lawsuit was filed, the Mississippi Department of Agriculture reversed itself and proposed a new regulation that allowed plant-based foods to continue as they had been. Legal challenges to the laws in Missouri and Arkansas continue to competition, they encouraged the Legislature to pass a new law. The First Amendment does not allow the government to compel speech just to protect special interest groups from competition.”

Upton’s Naturals and PBFA previously teamed up with IJ to challenge the 2019 Mississippi law preventing plant-based foods to use common meat terms on their labels. Shortly after their federal lawsuit was filed, the Mississippi Department of Agriculture reversed itself and proposed a new regulation that allowed plant-based foods to continue as they had been. Legal challenges to the laws in Missouri and Arkansas continue to be litigated in federal court.

The Oklahoma case is part of IJ’s National Food Freedom Initiative, which challenges laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. IJ previously successfully fought a state labeling law in Florida, which required producers of all-natural skim milk to label their product “imitation skim milk” because it did not contain artificial vitamin additives. Following a later challenge by a Maryland farmer to a similar Food and Drug Administration rule, the FDA agreed not to enforce its regulation against any dairy farmers and will no longer require states to enforce the regulation.

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