Letter: Commercial Speech and Food Labeling
The R Street Institute has always
stood up for free speech protections and views the right to communicate as a fundamental
American value. This extends to the commercial context, where we believe that
entrepreneurial businesses and innovators should be able to market, advertise
and disseminate information about their products without undue hassle.
Unfortunately, there is a
growing trend in states across the country to limit food companies’ ability to
label their products effectively, going so far as to prohibit certain words
outright. Recently, Missouri passed a law making it illegal to “misrepresent” a
product as meat if it was not “derived from harvested production livestock or
poultry.” The result is that companies producing plant-based meat products,
such as veggie burgers, could potential face liability for using words like
“meat,” even if the packaging clearly identified the product as plant-derived.
Laws that target plant-based
meat products are now cropping up in state capitals around the country. These
legislative developments mirror calls for the Food and Drug Administration to
pass new rules surrounding terms like “almond milk.”
Efforts to prohibit the use
of commonly accepted phrases like “veggie burger” and “plant-based meat” run
contrary to both the First Amendment and the English language. There is no
evidence of consumer confusion about products like veggie burgers and other
plant-based offerings, which means these prohibitions lack solid legal
Worse, they are nonsensical
from a linguistic standpoint. If companies can no longer use commonly accepted
terms like “almond milk” or “veggie burger,” they will inevitably be forced to
use more confusing (and less appetizing) words. Only a government lawyer or a
food critic could love the concept an “almond beverage” or a “veggie disk”; for
the rest of us consumers, more historically grounded terms are clearly
preferable. And for the wordsmiths out there: the dictionary agrees.
Unless policymakers can
definitively prove consumer confusion—which so far they have failed to do—they
would be wise to scrap this misbegotten war on words.
C. Jarrett Dieterle, R Street Institute, Director of Commercial Freedom and Senior Fellow
Shoshana Weissmann, R Street Institute, Fellow and Digital Media Manager
Some versions of these laws have also targeted
products like cell-based meat, despite the fact that these foods are not even
commercially available yet. Regulating products before they exist—and before
any data about consumer reactions to the product have been collected—is
generally a bad idea and should be opposed.
online: “Meat,” https://www.merriam-webster.com/dictionary/meat (primarily defined as the “edible part of something”;
secondarily defined to pertain to “animal tissue”).