In a case that may cause partisans to switch their views on free speech, plant-based food companies are suing Mississippi officials to protect their commercial speech so they can label their products with terms like “vegan jerky.”
Plant-based food companies, including Upton’s Naturals, have filed a lawsuit over a ban that prevents using terms associated with meat to sell plant-based products. According to the lawsuit, Upton’s Naturals and other plant-based food manufacturers would no longer be permitted to use terms like “vegan chorizo” and “meatless meatballs,” even though these terms are not misleading to consumers. The complaint seeks to invalidate the Mississippi law as a violation of plant-based food companies’ First Amendment rights. This case is particularly meaty because it may alter the usual political alliances generally associated with the protection of corporate speech.
A new law went into effect this month mandating that, among other things, “[a] plant-based or insect-based food product shall not be labeled as meat or a meat food product.” According to the lawsuit initiated by Upton’s Naturals and the Plant Based Foods Association, powerful meat-industry lobbyists successfully convinced Mississippi lawmakers that this ban was necessary to “make it more difficult for sellers of meat alternatives to compete with the meat industry.” The lawsuit does not mention whether the meat industry is worried about unfair competition, based on deceptive labeling, or legitimate competition, the latter of which would be an anti-competitive goal.
The First Amendment protection of commercial speech fully began in the 1970s, articulated by mostly liberal Justices, who wanted consumers to have full information about items in the marketplace. Currently, a full-throated protection of commercial speech is more likely to be advanced by conservative Justices. Many progressives see expansive protection for commercial speech as a form of corporate welfare, unrelated to the true objectives of the First Amendment. Here, with plant-based food companies arguing that their First Amendment rights have been violated, we may see some new alliances formed concerning the commercial speech doctrine. (Of course, it would be ideal if people did not change their views about First Amendment doctrine based on the parties at issue, as that runs contrary to the objectives of free speech protections.)
The main test for determining whether commercial speech restrictions violate the First Amendment comes from a case called Central Hudson, where an electrical utility company sued to invalidate a ban on its promotional advertising. According to Central Hudson, commercial speech receives less First Amendment protection than, say, artistic or political speech. Commercial speech that is deceptive is not protected by the First Amendment. Additionally, if the government wants to regulate commercial speech that “is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest.”
Thus, the state of Mississippi will be able to retain its ban if it demonstrates that either (1) using terms associated with meat to describe plant-based products is misleading, or: (2) even if not misleading, the state has another legitimate interest in its ban, and the ban is well tailored to achieve that interest.
The big question in this case will thus be whether terms like “vegan bacon” or “meatless burgers” are misleading – the state seems to have no other legitimate reason for restricting speech besides mere protectionism of the meat industry (which is likely not going to be considered a legitimate interest in the First Amendment context). The content or method of the advertising or labeling determines whether speech is misleading, and the Mississippi federal court can decide this issue as a matter of law.
In my preliminary view, terms like “meatless meatballs” are unequivocal and not misleading to consumers, but I would like to see Mississippi’s motion to dismiss before I form any real conclusions (so stay tuned). State officials will need studies or anecdotal evidence that consumers are being misled into buying plant-based products when they intended to buy meat products. One of the strongest arguments Upton’s Naturals makes in its complaint is that the company itself has a great interest in letting its consumers know that its products do not contain meat.
Interestingly, a meat industry trade association had previously sued the Department of Agriculture, claiming that its First Amendment rights were violated by rules requiring meat products to disclose their country of origin. The District of Columbia Circuit in that case, which presented potential compelled speech issues (unlike this “veggie burger” current case, which presents potential suppression of speech), upheld the disclosure requirements as purely factual and related to a substantial government interest in allowing consumers to make informed choices about their product – including buying American-made meat products.
The current veggie burgers case in Mississippi has the potential to affect other food labeling contexts, such as non-dairy milk products. This case may not be doctrine-shattering, but it does have the potential to form new free speech alliances and flesh out the limits of the state’s ability to restrict what it sees as misleading labeling.