The Only Bad Burger Is the One the Government Bans: ISBA Food Law Section Council CLE Presents Latest Developments in Regulating Plant-Based Food Labels and Cell-Based Meats

The Food Law Section Council welcomed Laura Braden, Esq., the lead regulatory counsel for international non-profit The Good Food Institute, to discuss the latest legal developments in food labeling. Plant-based products and alternatives to “traditional” dairy and meat-based proteins have become ubiquitous in our supermarkets and restaurants. In response to these developments, the legal landscape at the state and federal level has reacted. In multiple forums, interest groups have petitioned legislators and regulators to proscribe or require specific wording on the product labels, with varying results and court proceedings. More recently, as cell-based or cultivated meat, poultry, and seafood products get closer to launching in the United States, the federal regulators have been called to determine a regulatory scheme to ensure consumer safety. Ms. Braden provided an overview and looked ahead at what industry and consumers can expect in the coming year.

Plant-based Product Labels: Just like most of us are familiar with “gluten-free bread,” a label like “veggie burger” tells consumers the product is made from, e.g., pea or soy protein instead of an animal-sourced protein. Lawsuits have been filed around the country that address whether labels on products like veggie burgers, alternative milks, and plant-based dairy products are misleading to consumers. One recent case involved Miyoko’s “cultured vegan butter” “made from plants”: Miyoko’s Kitchen Inc. v. Ross (N.D. Cal. 3:20-cv-00893). The manufacturer, Miyoko’s, challenged a California law that directed California’s Department of Food and Agriculture to enforce against products sold in California the labeling requirements for “butter” according to the U.S. Food Drug and Cosmetic Act and the U.S. Food and Drug Administration’s (“FDA”) regulations for “cultured dairy products” “resembling milk products.” The federal district court in California ruled that while the butter-related federal regulations had been in effect since the 1920s, “language evolves,” and the use of the term butter in Miyoko’s cultured vegan butter label did per se mislead consumers. The State had no evidence of consumers’ confusion around the product, and so the law was unenforceable against that product.

Similar labels in other states remain susceptible to consumer protection claims, however. In 2018-2019, for instance, several states passed laws restricting plant-based protein products from using terms on their labels if the products were not derived from harvested livestock. At the same time, regulatory petitions have sought clarification around such labeling expectations. In 2017, The Good Food Institute filed a Citizen Petition requesting guidance on how foods may be named by reference to the names of other standard foods, like almond milk or soy sausage. The FDA did not respond to the full petition but subsequently asked for public comment on the use of dairy terms in the labels of non-dairy alternatives. The agency has indicated that it intends to publish Draft Guidance on the Labeling of Plant-based Milk Alternatives in June 2022. In September 2021, the U.S. Department of Agriculture (“USDA”) denied a petition filed by the U.S. Cattlemen’s Association to ban plant-based products’ use of the terms “meat” and “beef.”

Federal Oversight of Cultivated Meat: Cultivated meat, poultry, and seafood products are not yet on the market in the United States, but federal agencies are developing regulatory guidance for producers. In March 2019, the FDA and USDA entered a formal agreement to establish a “Joint Regulatory Framework” for cell-based meats. Under that framework, FDA will oversee cell collection, cell banks, cell growth, and differentiation for all products. USDA will take over responsibility at “point of harvest” – overseeing further processing, pre-approving labels, and conducting inspections. These agencies also have committed to developing “joint principles” for cultured meat product labeling. In September 2021, USDA-FSIS published its Advance Notice of Public Rulemaking on cultivated meat and poultry labeling. The Advance Notice requests economic and consumer data in support of potential labeling rules. USDA is expected to consider First Amendment boundaries, existing and potentially changing Standards of Identity (21 C.F.R. § 101.3), and the use of common or usual meat and poultry products on these new products’ labels.

Looking Ahead: The legal landscape on this topic is evolving. As Ms. Braden noted, we expect in the coming months to receive FDA’s guidance on labeling plant-based milks, a rulemaking from USDA on cell-based/cultivated meat, and as always, the potential for state laws and litigation over labeling.

Molly L. Wiltshire is a partner in Schiff Hardin LLP’s Litigation and Dispute Resolution group. Based in Chicago, IL, she litigates and counsels clients regarding complex commercial and civil disputes and administrative and regulatory issues. Molly has trial and appellate court experience in federal and state courts and has won a number of pre- and post-trial motions for her clients.

Molly founded the ISBA Food Law Section Council in 2019 and served as its inaugural chair. Her passion for food law started from her background in animal and environmental litigation. Molly has counseled a range of food clients on contract and warranty disputes and federal food inspection and production standards.

In addition to commercial litigation and food law, Molly is committed to diversity and inclusion in the legal profession, and is a member of the Institute for Inclusion in the Legal Profession (IILP) and the Leadership Council on Legal Diversity (LCLD). She has presented to various groups on topics including diversity and inclusion, the attorney-client privilege, and ethical rules regarding confidentiality.

Molly received her J.D. from the University of Chicago Law School and her B.A., magna cum laude, from Columbia University.