Traditional Meat Industry’s Beef With Alternative Protein Continues with the FAIR on Labels Act

March 6, 2024By Sophia R. Gaulkin & Riëtte van Laack

As readers of this blog know, there is a lot of contention about the naming of alternative protein products (APPs), including both plant-based and cell-cultured alternatives for (traditional) animal products.  The animal product industry, particularly the beef industry and the dairy industry, has challenged naming of APPs using what they consider to be traditional meat terminology.

Many individual states have pursued some type of legislation to restrict the use of traditional meat terminology for the labeling of APPs.  Last November, Florida went further by introducing a bill to prohibit the manufacture, sale, and distribution of cell-cultured meat entirely.  Arizona’s House of Representatives passed a similar bill on February 22 of this year, which is now pending review by the State Senate. Many states have proposed but failed to enact legislation regulating the labeling of APPs, in some cases due to concerns of potential legal challenges based on federal preemption claims.  Language in both the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) explicitly states that requirements for marking, labeling, and ingredients in addition to or different from those required under the Acts may not be imposed by any state or territory.  Federal legislation that amends the FMIA and PPIA could sidestep many of the issues hampering state-level efforts in this arena.  On January 30, the U.S. Senate and House of Representatives introduced the Fair and Accurate Ingredient Representation (FAIR) on Labels Act of 2024, a bipartisan bill that would establish new labeling requirements for alternative meat and protein products and prohibit the use of certain meat-related terminology and imagery for such products.  For the traditional meat industry, APP industry, and consumers, one of the few points of agreement may perhaps be a preference to avoid a messy patchwork of potentially inconsistent state laws.  This particular federal legislative effort, however, continues the debate.

If enacted, the legislation would amend the FMIA and PPIA to establish definitions for “imitation” and “cell-cultured” meat and poultry products, and revise the definitions of “meat” and “poultry” to exclude such products.  We’ve previously blogged about this ongoing battle here, here, here, and here.  Spoiler alert: the FAIR on Labels Act brings the traditional and alternative protein industries no closer to “meating” in the middle.

Imitation Meat and Poultry

More specifically, the bill would define “imitation meat” and “imitation poultry” as any food that does not contain meat, meat food product, or meat byproduct ingredients (or poultry or poultry product), and:

  1. uses a market name, descriptors, or iconography for, or is otherwise represented as, meat or meat food product (or poultry or poultry product);
  2. is manufactured to appear as a meat or meat food product (or poultry or poultry product); or
  3. approximates the aesthetic qualities (primarily texture, flavor, and appearance) or chemical characteristics of specific types of meat or meat food product (or poultry or poultry product).

The bill would require the labeling of any “imitation meat” or “imitation poultry” to (1) include “a disclaimer that clearly indicates that the imitation meat [or poultry] product is not derived from, or does not contain” meat or poultry, as applicable, and (2) display, in a prominent and conspicuous manner, in the same size and prominence as and immediately adjacent to the market name:

  1. the word “imitation”; and
  2. a statement that “the imitation meat [or poultry] is derived from sources other than meat [or poultry].”

The bill also includes a provision that bars the Secretary of Health and Human Services, the agency overseeing USDA and FDA, from providing for any exceptions to these requirements.

Cell-Cultured Meat and Poultry Products

The FAIR on Labels Act would define “cell-cultured meat product” and “cell-cultured poultry product” as “any product capable of use as human food that:

  1. is made wholly or in part from any cell culture or the DNA of an amenable species [or live bird]; and
  2. is grown or cultivated outside of the live animal [or live bird] from which the cell culture or DNA was acquired.”

The labeling of any cell-cultured meat and poultry products would be required to display the words “cell-cultured” or “lab-grown” in uniform type size and prominence as, and immediately adjacent to, the name of the food.

Who Gets to Bring Home the Bacon (and Other Terms)?

What’s in a name?  According to some, the terminology used to describe a product—particularly a novel product like cell-cultured meat—is critical to framing consumers’ perceptions of the product and, in turn, its success in the market.   It’s not surprising, then, that the FAIR on Labels Act has been most strongly supported by the traditional meat industry, from the National Cattlemen’s Beef Association—which petitioned USDA to restrict the use of meat and meat-related terminology to that which has been “harvested in the traditional manner”—to the National Chicken Council, the National Pork Producers Council, the American Sheep Industry, and other livestock trade groups.

Preventing consumer confusion is one of the chief arguments that the animal product industry uses in support of the bill.  We’ve certainly heard this line of reasoning before in litigation over APP labeling, but the relatively few examples of consumer litigation on the basis of deceptive or misleading labeling have rarely been successful.  Instead, the majority of such litigation have involved First Amendment challenges to state laws that restrict APPs’ access to traditional meat nomenclature.  In these cases, plaintiffs claimed, with varying degrees of success, that the use of traditional meat nomenclature (e.g., tofu burger) was not misleading.  Some plaintiffs also have successfully argued that the challenged state laws created confusion where none existed before.  APP proponents’ other arguments are captured in the Good Food Institute’s 2017 Citizen Petition to FDA, which requested regulations to clarify how foods may be named by reference to the names of other “traditional” foods (we previously blogged about this).

We will continue to monitor this bill and the legislative, administrative, and judicial developments with respect to this rapidly evolving issue.