Note the word MEAT is large and centered, a steer at the top, Beef Crumbles, and Beefy are also prominent. “Plant-Based” is small and located on the bottom.
lab-grown meat is off the table, states have some wiggle room to provide clarity to consumers concerning plant products masquerading as “meat.” FDCA does include express preemption language, but that language is for only specific labeling components. Because the FDA has not created specific labeling requirements for the plant-based fake meat products, states have an opening until the FDA creates a standard. Even with preemption barring certain state activity, states can pass identical labeling standards. This is important, especially when you consider the lackluster enforcement by FDA of products mimicking dairy. If they pass such standards, states can then enforce federal standards when the federal government fails to do so. Outside of preemption, fake meat companies have sued Arkansas, Missouri and Mississippi challenging their labeling restrictions on other grounds. Their argument is that those laws were passed with the intent to commercially harm the fake meat industry and those laws regulate the content of speech in violation of the first amendment. The first amendment right to free speech extends to businesses’ commercial speech, but not to the same level as individual speech. Think, statements on a food label is commercial speech and your protest sign is individual speech. It’s a very high bar for a state or
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Clause making the conflicting state law unconstitutional. In the food labeling world, the federal constitutional power at work is the Commerce Clause. The Commerce Clause gives the federal government authority to regulate goods in interstate commerce. It is important to note that there are two federal agencies that deal with food labeling. The Federal Meat Inspection Act (FMIA) gives jurisdiction over meat labeling to the United States Department of Agriculture (USDA). The Federal Food, Drug and Cosmetic Act (FDCA) gives jurisdiction over all other food labeling to the Food and Drug Administration (FDA).
There are major differences in both food safety requirements and labeling requirements between the two. USDA requires labels to be preapproved and has robust food safety inspections. FDA typically does not preapprove labels, enforcement is lackluster, and food safety inspections occur less frequently than for meat. Under FMIA, state labeling requirements of cell-cultured meat that are different than the USDA are likely unconstitutional because USDA has jurisdiction over lab-grown meat and there is specific language preempting states from requiring labeling that is different than the USDA. While
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