As an update to our coverage of on-going litigation of plant-based product labeling, an Oklahoma federal judge recently refused to block a state law that requires plant-based food companies include a disclaimer on labels if they use a meat term to describe their products. In September, Upton’s Naturals Co. and the Plant Based Foods Association filed suit against the state of Oklahoma challenging the constitutionality of the Meat Consumer Protection Act (“the Act”). The Act requires that plant-based food companies include a disclaimer the size of the product’s name if they use terms like “burger,” “hotdog,” “meatball,” “jerky,” “sausage,” “chorizo,” and “bacon,” even if the labels state the products are “meatless,” “vegan,” or “plant-based.”

Plaintiffs argued that the law was passed to prevent competition with the meat industry and violates the First Amendment. Upton’s Naturals had sought a preliminary injunction against the law. However, on November 19, U.S. District Judge Stephen P. Friot disagreed and ruled that the Act did not violate the Constitution.

Judge Friot said he had “no trouble” deciding that the speech at issue is potentially misleading to a reasonable consumer because Upton’s Naturals packaging includes terms like “bacon,” “hot dog,” “jerky,” and “meatballs.” Indeed, Judge Friot stated that “[w]hile plaintiffs argue that the government cannot make these meat-related terms potentially misleading by virtue of its definition of meat, the court notes that all of the meat-related terms, except burger, are also defined in the Dictionary by Merriam-Webster…to indicate they are animal-based.”

The judge rejected Upton’s Naturals argument that the U.S. Supreme Court’s 1980 decision in Central Hudson Gas & Electric Corp. should apply to the case, which held that a government may restrict commercial speech that is neither misleading nor about unlawful activity as long as the government has a substantial interest in restricting that speech. However, Judge Friot disagreed, stating that “the challenged provision of the act does not restrict speech as in Central Hudson. It requires disclosure of information.” Instead, Judge Friot applied the 1985 decision in Zauderer, which held that compelled disclosure of commercial speech comports with the First Amendment if the information is “reasonably related to a substantial governmental interest and is purely factual.”

Upton’s Naturals intends to appeal Judge Friot’s decision to the Tenth Circuit. We will continue to monitor any developments.