WHICH CAME FIRST: THE CHICKEN OR THE CHICK'N? AN FDA AMENDMENT PROPOSAL TO RECONCILE CONFLICTING INTERESTS IN PLANT-BASED MEAT LABELING.

• Author: Justison, Katie

TABLE OF CONTENTS INTRODUCTION 1864 I. COMMERCIAL SPEECH AND THE FIRST AMENDMENT 1864 II. HISTORY OF LEGISLATION AND LITIGATION 1866 A. Early Attacks Against Dairy Alternatives 1866 B. Dairy Alternatives Lawsuits 1867 C. Miyoko's Kitchen v. Ross as a Turning Point for Alternative Dairy Product Labelling 1869 III. RISE IN LEGISLATION REGULATING PLANT-BASED MEAT 1872 A. The Mississippi Lawsuit 1872 B. Missouri as a Case Study 1873 1. Statute & Commentary 1873 2. Litigation 1876 3. Central Hudson Test 1876 C. Arkansas as a Case Study 1879 1. Statute 1879 2. Litigation 1880 3. Central Hudson Test 1882 IV. FDA AMENDMENT PROPOSAL 1886 A. Procedure & History of Amending FDA Regulations 1887 B. Separate Regulation for Plant-Based Food 1890 C. Traditional Meat Terms with Plant-Based Modifiers 1891 D. Vegan Terminology 1893 CONCLUSION 1894 INTRODUCTION

"The issue is, what is chicken?" (1) As the market for plant-based meats grows, state legislators are left with the question of what the words "chicken" and "burger" mean on food labels. In response to lobbying from the traditional meat industries, states followed suit with the dairy industry and created regulations and restrictions that carve out a meat industry monopoly on meat-related terms. (2) Commercial speech restrictions such as these are guided by the Central Hudson test. Using that test, this Note will argue that while certain state regulations pass constitutional muster, others impose unconstitutional speech restrictions. This Note will draw particularly from the analysis employed by courts within the Ninth Circuit by addressing similar dairy regulations, commentary from interest groups, and FDA history. Finally, this Note will propose an FDA amendment and final notice that would create independent plant-based standards of identification and labeling guidance. An FDA amendment is necessary because, as demonstrated by the case studies, district courts have shied away from engaging in a thorough Central Hudson analysis. This separate regulation would allow plant-based food producers to use traditional meat language with the appropriate modifiers, as well as stand-alone "vegan terminology."

1. COMMERCIAL SPEECH AND THE FIRST AMENDMENT

   Although commercial speech is protected, it generally enjoys less protection than other constitutionally guaranteed forms of expression. (3) Commercial speech protections are an extension of the First Amendment. (4) This is justified by what the courts consider a distinction between speech for a commercial transaction and other types of speech because commercial transactions are typically subject to government regulation. (5) The Supreme Court has held that "[t]he protection available for commercial expression turns on the nature both of the expression and of the governmental interest served by its regulation." (6) Further, the government may ban misleading or deceptive speech, as First Amendment protections for commercial speech depend on the informational function of the speech. (7) The Court also noted that excessive restrictions are not permissible if there are less restrictive means with which the government could achieve its substantial interest. (8) However, required disclosures for commercial speech constitute less of a burden on an advertiser than prohibitions of speech. (9) Specifically regarding commercial speech expressed by food labels, courts view the label as a whole to determine if an ordinary, reasonable consumer would be misled or confused. (10)

   The Central Hudson test provides a comprehensive mechanism to analyze a state's regulation of commercial speech under intermediate scrutiny for speech that is not misleading or relating to illegal activity. (11) After determining that the speech is neither misleading nor related to unlawful activities, the burden shifts to the government to demonstrate a substantial interest in regulating the speech. (12) Next, the reviewing court "must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." (13) In Central Hudson, the Supreme Court held that despite furthering a legitimate state interest, a complete ban on advertising was unconstitutional because the State could not show that a lesser restriction would have been ineffective. (14) Finally, the Court later held in National Institute of Family & Life Advocates v. Becerra that in order to determine if the regulations are reasonably related to preventing deception, the State must offer evidence beyond mere hypothetical assertions. (15) This highlights the level of scrutiny a reviewing court applies to a regulation under the Central Hudson test; the government bears a heavy burden. (16)

2. HISTORY OF LEGISLATION AND LITIGATION

   This Part will trace the complex regulatory and social history which sets the scene for modern-day label regulations in the evolving market of plant-based meat. Dairy industry legislation and lawsuits provide not only a framework with which to analyze plant-based meats but also relevant doctrine that provides a nuanced understanding of this novel issue.

   1. Early Attacks Against Dairy Alternatives

      While new technology is enabling the development and expansion of plant-based alternatives, lobbying efforts to hinder their market growth are not a new phenomenon. (17) The first example of legislative bodies imposing severe restrictions on, or even banning, dairy alternatives occurred during the "Butter Wars," which began in the late nineteenth century. (18) At the federal level, Congress passed the Margarine Act, which imposed steep licensing fees and restrictive taxes on margarine producers to discourage the industry. (19) At the state level, legislatures imposed further restrictions. A handful of states completely banned margarine, and by 1902, thirty-two states had created regulations requiring margarine be dyed unappealing shades of pink. (20) The Supreme Court later held that the so-called "pink laws" were unconstitutional, and the Great Depression and World War II led to a boom in margarine sales due to the lessening of restrictions and the societal needs at the time. (21) However, despite the boom in margarine sales, even with lessened restrictions on the product, butter still remains the most popular spread that Americans use." (22)

   2. Dairy Alternatives Lawsuits

      The dairy lobby carried such great weight that the last margarine-color law was not repealed until 1967, (23) highlighting the institutional background that current plant-based regulations function in, with the beef and dairy industries historically dominating in the market and courtroom. However, in the years leading up to Miyoko's Kitchen v. Ross, a groundbreaking commercial speech case, California courts signaled that the institutional foundation upon which the dairy industry relied was beginning to crack. (24)

      In 2013, the U.S. District Court for the Northern District of California granted a motion to dismiss in a suit alleging the mislabeling of soy, almond, and coconut milks. (25) The plaintiffs argued there was mislabeling because plant-based milks do not fall into the definition of milk, defined as the "lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows" under 21 C.F.R. [section] 131.110. (26) However, the court reasoned that [section] 131.110 "pertains to what milk is, rather than what it is not, and makes no mention of non-dairy alternatives." (27) Relying on the fact that the FDA had not set a name for plant-based milk products, the court held that the common name on the label would not confuse a reasonable consumer. (28) This monumental line of analysis shifted the doctrine from attempting to fit plant-based options into the confines of traditional dairy definitions to recognizing the need for a distinct category of definitions.

      Additionally, the Ninth Circuit in Painter v. Blue Diamond Growers weighed in by affirming a motion to dismiss in a similar case involving the alleged mislabeling of almond milk. (29) The court affirmed the district court's finding that no reasonable consumer would be misled as to the contents or nutritional value of the almond milk based on the label. (30) The court distinguished this from Williams v. Gerber Products Co., a case in which it did find that a reasonable consumer would be misled or confused. (31)

      In Williams, the Ninth Circuit held that Gerber's "fruit juice snacks" were labeled in a way that made it likely to deceive a reasonable consumer. (32) The complaint alleged various components of the label would confuse a reasonable consumer. (33) The plaintiffs argued that the words "fruit juice" next to images of various fruits, as well as statements on the packaging, led them to believe the product was a healthy snack--which it was not. (34) The key characteristics of the label that the court considered included pictures of fruits on their package, as well as the statement that the snack was made with "fruit juice and other all natural ingredients." (35) In describing the potential for misrepresentation, the court explained that

      [t]he product is called "fruit juice snacks" and the packaging pictures a number of different fruits, potentially suggesting (falsely) that those fruits or their juices are contained in the product. Further, the statement that Fruit Juice Snacks was made with "fruit juice and other all natural ingredients" could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false: (36) The court in Painter carved out the precedent for almond milk labels by distinguishing them from another category of potentially misleading labels. (37) Through the juxtaposition with the Gerber fruit snacks, the court clearly identified the label of "almond milk" as being unambiguous in a way that the fruit snacks were not. (38)

   3. Miyoko's Kitchen v. Ross...