Earlier this week the Institute for Justice (I.J.) filed a lawsuit in federal court in Mississippi seeking to overturn that state’s unconstitutional new restrictions on the use of certain common terms to identify a variety of plant-based foods.
Mississippi’s law dictates that a “plant-based…food product shall not be labeled as meat or a meat food product.” While Mississippi claims the law is intended to clear up consumer confusion, it does nothing of the sort. “It doesn’t matter if the product also states on the label that it’s 100% vegan, plant-based or meatless,” Bloomberg News reports.
If it’s not intended to clear up confusion, then what’s the point of this labeling mandate? Simple protectionism. The law, which was passed in March but took effect this week, is intended to protect makers of meat products (e.g., hamburgers) from competition from plant-based alternatives (e.g., veggie burgers) by barring the latter, for example, from using the term “burger” to refer to their veggie burgers.
The list of people who are confused by, say, this hey-it’s-vegan! burger, is so short as to be nonexistent. That’s because, as you may have noticed, vegan food packaging is, like vegans, not exactly quiet about its vegan bona fides.
“Context matters,” Justin Pearson, the I.J. attorney who filed the lawsuit, told me this week. “Under the First Amendment, businesses should be able to use almost any word they want, as long as consumers understand what they are saying. People know that vegan burgers do not come from cows. That is why they are called ‘vegan.'”
The Mississippi law is one of several similarly awful ones around the country. I condemned a comparable Arkansas law in a column earlier this year, noting that “the only reason government cares a lick about this issue is that they are beholden to powerful agricultural interests that want to use the government to stifle competition from small-but-growing rivals.” Last year I also blasted a similar Missouri bill.
“These laws are anti-competitive and anti-consumer, not to mention unconstitutional,” says Michele Simon, a lawyer and executive director of the Plant Based Foods Association (PBFA), a membership group that’s one of the plaintiffs in the case, in an email to me this week. “That is why PBFA has teamed up with our member Upton’s Naturals and the Institute for Justice to sue Mississippi, not only to stop the law there, but to send a message around the nation that these efforts will be challenged.“
Mississippi lawmakers would probably chafe at someone calling their new law a fine example of the nanny state. After all, several years ago, as I detailed cheerily, state lawmakers adopted what they dubbed an “anti-Bloomberg bill.” That law forbade local governments from enacting local restrictions on food, including taxes on fast food or soda.
But Mississippi lawmakers are also the same people who adopted protectionist statewide restrictions on catfish marketing in 2015, which I noted at the time served no purpose but one: “If this sounds suspiciously like a protectionist measure, that’s because it is.”
What’s more, though Mississippi lawmakers and regulators have positioned themselves as defenders of meat, their actions suggest otherwise—at least when it comes to meat from animals raised by small, local farmers in the state. As I detail in my recent book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, overbearing and unnecessary Mississippi food-safety rules mean that few if any small farmers in the state can sell steaks and other meat products at farmers markets there.
If left to its own devices—freed from the vice-like grip of Mississippi lawmakers and regulators—there’s ample evidence the marketplace can sort all this out.
Last month, for example, fast food giant Arby’s, which loudly proclaims itself to be home of “the meats,” announced that it had created what may be the first meat-based plants. Their first offering? The “marrot,” which is basically turkey that’s been shaped and colored to look like a carrot.
“[W]e said, ‘If they can make meat out of vegetables, why can’t we make vegetables out of meat?'” Arby’s chief marketing officer Jim Taylor told Fast Company last week. Taylor says Arby’s has applied for a trademark for the term “megetables,” a portmanteau of “meats” and “vegetables.”
Arby’s also declared it would never, ever sell plant-based meat substitutes such as the meh Impossible Burger, which has gained a following at Burger King and other competitors. Why? Its customers want said meats.
While the marrot and megetables are just a marketing concept as yet, I must declare my love for what Arby’s is doing: using the marketplace to innovate, differentiate, and reinforce its brand. That’s exactly what PBFA members and other plant-based food producers are doing, too. They should be able to continue doing that without suing to protect their First Amendment rights.
“Anyone who cares about the free market should find the Mississippi law and others like it very troubling,” says the PBFA’s Simon. “Our members are competing fair and square in the marketplace.”
They are. And hopefully, the court will allow that competition to continue.
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