Andrew Wimer
Andrew Wimer · July 2, 2019

Jackson, Miss.—All of the food Upton’s Naturals sells in Mississippi is proudly labeled as vegan. Even though no reasonable consumer would think Upton’s Naturals foods contain meat, a new labeling law would require the company to either stop selling in the state or change its labels to be less clear. On July 1, Mississippi’s new law banning plant-based foods from using meat or meat-product terms such as “veggie burger” on their labels went into effect, with potential fines and even criminal penalties for violations.

To protect its First Amendment right to label its foods in a way that consumers understand, Upton’s Naturals and the Plant Based Foods Association (PBFA) are teaming up with the Institute for Justice (IJ) to sue the state of Mississippi in order to stop the law from being enforced.

Mississippi already had laws in place to prevent companies from mislabeling products, so there was no consumer-protection basis for this law, which is about protecting meat products from competition from plant-based alternatives. Indeed, the Mississippi Cattlemen’s Association lobbied legislators to pass the new law specific to meat terms earlier this year. It is now illegal for Upton’s and other companies to let customers know on the label what products their foods substitute for, such as bacon. That may be a win for the meat industry’s lobbyists, but it is a loss for consumers who are seeking out plant-based meat alternatives to put on the grill this Independence Day.

“People are not confused by terms like ‘veggie burger’ or ‘vegan hot dog,’” said IJ Managing Attorney Justin Pearson. “No one thinks plant-based burgers or vegan hot dogs contain meat. To the contrary, those terms tell consumers that they are buying exactly what they want: a plant-based alternative to animal meat. By banning the terms customers understand best, Mississippi is not only creating confusion, but also violating the First Amendment rights of both sellers and consumers.”

Upton’s Naturals, of Chicago, Ill., is a small, independently owned producer of vegan foods founded by Daniel Staackmann in 2006. The company is focused on meat alternatives using innovative ingredients such as wheat-based seitan and jackfruit. Upton’s Naturals sells its foods across the United States and around the world. Its vegan bacon seitan, chorizo seitan and other foods can be found on shelves at Whole Foods in Jackson, Miss. Upton’s Naturals is also a founding board member of PBFA.

“Our labels are not trying to trick consumers into buying our vegan foods,” said Staackmann. “We aim to clearly communicate what our foods are made from for those actively seeking vegan foods and others considering incorporating them into their diet. We describe our foods as alternatives to meat so consumers can easily understand what meat-based product they can potentially replace. Mississippi’s law is not about clearing up consumer confusion, it’s about stifling competition and putting plant-based companies at a disadvantage in the marketplace.”

The Plant Based Foods Association is the nation’s only membership association for plant-based food companies. PBFA’s 147 member companies make a variety of plant-based alternatives, including meat alternatives, a category that is fast growing in retail stores and restaurants.

“The plant-based meat alternative category is on fire right now, with consumers demanding healthier and more sustainable options,” said Michele Simon, PBFA’s executive director. “This law, along with similar laws in several other states, is the meat lobby’s response to the media attention PBFA members are receiving. Whatever happened to free market competition? We are proud to stand with Upton’s Naturals and the Institute for Justice to protect PBFA members’ First Amendment rights to clearly communicate to consumers.”

IJ previously successfully fought a state labeling law in Florida, which required producers of all-natural skim milk to label their product “imitation skim milk” because it did not contain artificial vitamin additives. In 2017, the 11th U.S. Circuit Court of Appeals ruled that Ocheesee Creamery’s “use of the words ‘skim milk’ to describe its skim milk is not inherently misleading.” That was the first successful First Amendment challenge to enforcement of a food standard of identity in U.S. history. Likewise, using meat terms in the context of products described as meatless, vegan or plant-based is not misleading to consumers. IJ is currently suing the U.S. Food and Drug Administration over its similar skim milk labeling requirement for milk producers who want to ship across state lines.

Today’s case is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. In addition to winning the free speech challenge in Florida, IJ won a challenge to Oregon’s ban on raw milk advertising and won home bakers in Wisconsin the right to sell their goods.