The Plant Based Foods Assn. (PBFA), the trade association representing more than 170 plant-based food companies, and Upton’s Naturals -- a small, independently owned maker of plant-based foods based in Chicago, Ill., and a founding board member of PBFA -- joined forces with the Institute for Justice (IJ) to file a federal lawsuit challenging a new Oklahoma food labeling law as a violation of the First Amendment.
During the 2020 Oklahoma legislative session, Rep. Toni Hasenbeck (R.) and Sen. Micheal Bergstrom (R.) authored HB 3806, which addresses labeling alternative, or "fake," meat products. The new law in Oklahoma, which takes effect Nov. 1, 2020, requires that a company include a disclaimer on its label as large and prominent as the product’s name stating that the food is plant based.
While other states such as Mississippi, Missouri and Arkansas have sought to make it illegal for plant-based foods to use terms such as “burgers” or “bacon,” the Oklahoma law attempts to make current labels illegal by requiring font size to be as large as the product’s name for qualifying terms such as “vegan” or “plant based.”
“Even though it is obvious that Upton’s Natural’s foods do not contain meat, the law would require changes to their food labels -- something the small company would not be able to afford,” PBFA said in a news release.
“Our labels make it 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 are potentially harmful,” Upton’s Naturals founder Daniel Staackmann said. “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.”
PBFA executive director Michele Simon said, “It is highly likely that some PBFA members would withdraw their products from Oklahoma if the state’s new law went into effect.”
IJ senior attorney Justin Pearson said, “Oklahoma already has a law prohibiting misleading labels, 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.”
This bill was a lead priority for the Oklahoma Cattlemen’s Assn. in the 2020 legislative session, as it worked with the Oklahoma Pork Council. The bill overwhelmingly passed through the state House and Senate to the governor’s desk to become state law.
The Oklahoma cattle and pork groups issued a joint statement regarding the lawsuit saying: “We believe if a product wants to pass itself as beef, pork or meat, then it must be properly labeled so consumers will know exactly what they are purchasing. This language clarifies that ‘beef’ must come from cattle, that ‘pork’ must come from a pig and that ‘meat’ must come from livestock. We look forward to working with the state of Oklahoma in defending this commonsense law.”
Upton’s Naturals and PBFA previously teamed up with IJ to challenge a 2019 Mississippi law that made it a crime for plant-based foods to use common meat terms on their labels. Shortly after their federal lawsuit was filed, the Mississippi Department of Agriculture completely reversed course and proposed a new regulation that allowed plant-based foods to continue using their labels. Legal challenges to the laws in Missouri and Arkansas continue to be litigated in federal court.