The abundance of state laws seeking to constrain the use of the term “meat” on labels for foods that are plant-based alternatives or, prospectively, cell-based proteins could have a short shelf life if challenged legally, wrote attorneys Robert Hibbert and Amaru Sanchez, of Morgan, Lewis & Bockius LLC, in a recent issue of Law360 as reported by Meatingplace.
The growing list of states pursuing such state-level legal initiatives includes Arizona, Arkansas, Colorado, Indiana, Mississippi, Missouri, Nebraska, North Dakota, Washington and Wyoming.
“What is unclear, at least to us, is how, if enacted, these state initiatives could withstand a legal challenge based upon a claim of federal preemption,” Hibbert and Sanchez wrote.
The laws regarding labeling of cell-based meat are clearer, because the joint agreement between the Food & Drug Administration and USDA’s Food Safety and Inspection Service put oversight for labeling in the hands of FSIS. USDA-inspected products are under the aegis of federal inspection laws for meat and poultry, and a federal preemption mostly likely would apply.
On the other hand, labeling of plant-based alternatives are regulated by the Food & Drug Administration, and the question of whether those labels would fall under a federal preemption would depend on whether the label or statement at issue is directly governed by the terms of the federal Food, Drug and Cosmetic Act, Hibbert and Sanchez wrote.
An argument could be made, the authors contended, that federal law requires the products to be “labeled by their common/usual name” or in a way that accurately describes the “basic nature of the food or its characterizing properties or ingredients.” In that case, some state labeling requirements could be pre-empted if they are deemed in conflict with federal law.
But, a counterargument could assert that if the FDA has not taken any definitive action regarding the labeling of these products, they are not entitled to preemption.
“The increasing level of both public and private interest in this emerging food category guarantees the existence of continued debate and controversy over questions of how such products are identified and labeled. Issues of federal preemption will accordingly play a critical role in driving the degree to which the marketplace provides a uniform answer,” the article concluded.
