The First Amendment provides some protection for commercial speech, or speech on behalf of a corporation with the intent to produce profit. Despite this, many state governments are entertaining and passing legislation that would prevent plant-based meat and milk producers from labeling their products as just that–“plant-based meat” and “plant-based milk.” This legislation is purportedly in response to consumer confusion, but special interest group representatives and legislators have candidly conceded that it serves to protect traditional agriculture in the face of increasing market competition. Commercial speech is admittedly not a traditional priority of those on the left who feel that it transforms the First Amendment into a protection of corporate welfare. However, when the government infringes on First Amendment rights by playing favorites in the food marketplace, it doesn’t just hurt a competitor’s bottom line–it hurts consumers, their health, and the environment.
The food labeling context can give rise to tension between free speech and consumer protection regulations. In 1976, the Supreme Court extended the First Amendment to commercial speech. Four years later, the Court established that while commercial speech receives less protection than other forms of speech, regulatory attempts are subject to the four-part Central Hudson test: (1) In order to receive First Amendment protection, commercial speech must concern lawful activity and not be misleading. If this condition is met, (2) the governmental interest in regulation must be substantial, (3) the regulation must advance that governmental interest, and (4) the regulation must be no more extensive than necessary.
The legislation that has surfaced in approximately twenty-five states either fines or criminally sanctions plant-based or cell-based producers that label their products with words like “meat” and “milk,” even if qualified by words like “vegan,” “almond,” or “cell-based.” Cell-based meat is not yet on the market, but would be genetically identical to animal-sourced meat and grown in a laboratory without animal slaughter. Some legislation also takes aim at “cauliflower rice.” In at least one state, legislators have indicated that the patchwork quilt of state requirements that would result from state-level requirements is in part intended to force the FDA to regulate on the federal level. In May of 2019, senators from Wisconsin and Idaho reintroduced the DAIRY PRIDE Act of 2017, which would prohibit non-dairy products from being labeled as milk or cheese, regardless of qualifier. Tellingly, cattlemen’s and dairy producer associations approached legislators with these labeling concerns and have lobbied for legislation at both the state and federal levels. They candidly suggest that the concern is an unfair detraction from traditional meat and dairy. Protecting traditional agriculture from fair competition is not a legitimate government interest. Therefore, to avoid transparent protectionism, legislation would need to rest on the “misleading” prong of the Central Hudson test. The most plausible basis for eventual FDA intervention would be the possibility that consumers do not understand that products like almond milk are nutritionally distinct from traditional cow’s milk.
This legislation “creates consumer confusion where none existed,” thereby violating the commercial speech rights of companies that market plant-based products. Plant-based producers have every incentive to clearly indicate that their products are not sourced from animals, as their customer base consists primarily of those seeking to avoid animal products. Moreover, when consumers are seeking a non-meat sausage imitation, terminology like “plant-based protein tube” is far more obfuscating than “vegan sausage.”
Agency commentary and court opinions indicate that regulation proponents will have to contend with the “realities of ordinary language” at both the regulatory and litigation levels. The marketplace is replete with products that suggest this legislation is in pursuit of something other than clarity. For example, some opponents of the legislation have pointed out the lack of plausible confusion surrounding products like peanut butter, cream of wheat, and root beer. However, unlike plant-based alternatives, these products do not seek to imitate their namesakes. As an opinion from the Northern District of California suggested, more damaging analogies are products like eBooks or flourless chocolate cake. Like almond milk, flourless cake is a replacement labelled according to its ultimate form, and qualified by its nontraditional source and contents. Yet few would argue that “flourless cake” is misleading. Judicial opinions like this one suggest that traditional agriculture may have an uphill semantic battle in court.
Markets shift frequently with product development and evolving preferences, but the government should not impinge on the commercial speech rights of competitors to push the needle back towards the status quo. As the Supreme Court noted when it first applied the First Amendment to commercial speech, “[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.” However, the United States government has long favored traditional animal-based agriculture through disproportionate farm subsidies, unbalanced food pyramids, and “ag gag” laws, another First Amendment infringement that prevents whistleblowing about agriculture production conditions. It seems that the government sees traditional agriculture as another industry that is “too big to fail.” But Americans are increasingly voting for alternatives with their wallets. A whopping half of Americans buy milk alternatives, but if plant-based milk producers are required to modify their labeling state-by-state, they may be all but forced out of some regions. This market interference could damage consumers’ ability to make decisions about their health and personal environmental impact. Lactose intolerance aside, increasing evidence suggests that government-subsidized dairy and meat products are damaging Americans’ heart health. Moreover, red meat production causes 10 to 40 times the greenhouse gas emissions of vegetable and grain production.
It is understandable that traditional agriculture stakeholders would seek to stymie alternatives, but the government should not inhibit consumers from making choices that may be better for their health and that align with their values. Instead of violating the First Amendment to protect animal-based agriculture, authorities should instead direct resources towards a just transition for agriculture stakeholders. Analogously, our transition away from the use of traditional energy has left coal workers and their communities vulnerable. The Green New Deal includes a proposal to ensure that those workers continue to receive income and benefits while they move towards employment aligned with a more sustainable future. Legislators in states heavily dependent on traditional agriculture should begin to consider similar measures to support their constituents in a more plant-based future.