As food manufacturers have become more sophisticated in creating vegetarian meat alternatives whose taste and texture more closely resemble animal meat, a number of states have enacted statutes seeking to restrict how those vegetarian meats are labeled and advertised. Some State Attorneys General have been charged with enforcing these new statutes, which raise substantial First Amendment issues. The United States District Court for the Eastern District of Arkansas recently enjoined Arkansas from enforcing its new labeling statute, holding that the packaging, which clearly labeled the products as vegetarian, was not inherently misleading and therefore was entitled to First Amendment protection. One of the Court’s primary considerations was that the packaging displayed the vegetarian disclosure prominently, adjacent to the description of the product as “meat.” Litigation in Missouri and Mississippi, though it has resulted in different outcomes, has followed similar guidelines.
The takeaway: companies packaging or advertising food that contains a description commonly associated with another product (e.g. “meat” or “milk”) should place a disclosure on the packaging or advertising that is sufficiently prominent to put customers on notice of what they are buying.