Andrew Wimer
Andrew Wimer · September 16, 2020

OKLAHOMA CITY—All of the food Upton’s Naturals sells is proudly labeled as “100% vegan.” Even though it is already obvious that Upton’s Natural’s foods do not contain meat, a new law in Oklahoma demands that the company include a disclaimer on its label as large and prominent as the product’s name stating that the food is plant-based. But such required disclaimers are typically reserved for potentially harmful products such as cigarettes and alcohol, not completely healthy and safe vegan products.

Oklahoma’s law has nothing to do with health and safety and everything to do with protecting the meat industry from competition. A small company like Upton’s Naturals can’t afford to change its labels to satisfy their competitors’ demands, and they shouldn’t have to because their labels are speech protected by the U.S. Constitution. Today, Upton’s Naturals and the Plant Based Foods Association (PBFA) teamed up with the Institute for Justice (IJ) to file a federal lawsuit challenging the law as a violation of the First Amendment.

“Oklahoma is treating safe and healthy plant-based meat alternatives like they are cigarettes,” said IJ Attorney Milad Emam. “This new law won’t tell consumers anything they don’t already know, but it will have a devastating effect on vegan and vegetarian food companies, since their perfectly honest and understandable labels will now be illegal in Oklahoma. This law, which was passed to prevent competition with the meat industry, clearly violates the First Amendment.”

Upton’s Naturals, of Chicago, Illinois, 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 chorizo seitan, vegan mac and cheese and other foods can be found on shelves at Whole Foods in Oklahoma City and other grocery stores across the state. Upton’s Naturals is also a founding board member of PBFA.

“Our labels are perfectly clear that our food is 100% vegan,” said Staackmann. “But now our meat industry competitors in Oklahoma want to force us to redesign our labels as if our safe, healthy products were potentially harmful. It’s not the first time we’ve had to fight a state law created by our competitors, and we look forward again to defending our First Amendment right to clearly communicate with our customers.”

The Plant Based Foods Association is the nation’s only membership association for plant-based food companies. PBFA has more than 150 companies that 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 category is on fire right now, with consumers demanding healthier and more sustainable options as alternatives to animal products,” said Michele Simon, PBFA’s executive director. “Oklahoma’s law, along with similar laws in several other states, is the meat lobby’s anti-competitive response to the increased consumer demand for plant-based options. 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.”

The Oklahoma Meat Consumer Protection Act, which takes effect on November 1, 2020, was drafted by the Oklahoma Cattlemen’s Association and introduced in the Oklahoma Legislature by one of the association’s cattle ranchers. While other states such as Mississippi, Missouri and Arkansas have sought to make it illegal for vegan foods to use terms such as “burgers” or “bacon,” the Oklahoma law attempts to make current labels illegal by micromanaging their content in a manner not seen anywhere else in the nation: Requiring font size as large as the product’s name for qualifying terms such as “vegan” or “plant-based.”

“Oklahoma already had a law prohibiting misleading labels,” said IJ Senior Attorney Justin Pearson. “But since the meat industry couldn’t use that law to thwart honest competition, they encouraged the Legislature to pass a new law. The First Amendment does not allow the government to compel speech just to protect special interest groups from competition.”

Upton’s Naturals and PBFA previously teamed up with IJ to challenge the 2019 Mississippi law that made it a crime for plant-based foods to use common meat terms on their labels. Shortly after their federal lawsuit was filed, the Mississippi Department of Agriculture completely reversed itself and proposed a new regulation that allowed plant-based foods to continue using their honest labels. Legal challenges to the laws in Missouri and Arkansas continue to be litigated in federal court.

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. 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. Following a later challenge by a Maryland farmer to a similar FDA rule, the FDA agreed not to enforce its regulation against any dairy farmers and will no longer require states to enforce the regulation either.