Friday, June 14, 2019

Dear Big Ag: We Don't Trust Your Motives

by Sherry Colb & Jareb Gleckel

On Justia’s Verdict today, Jareb Gleckel has a column about Big Ag. The informal conglomerate of slaughterhouse boosters has of late proffered (a new set of) logically inconsistent arguments, on the one hand, for vesting regulatory jurisdiction over cell-based food in the USDA (because such food is meat) and, on the other hand, for preventing this food from being labeled with meat-connected words like “burger” (because such food isn’t meat). In this post, we will consider the question why Big Ag complains when Beyond Meat names one of its most popular products “Beyond Burgers” or when Tofurky sells “veggie bacon.”

In general, one ought to give people the benefit of the doubt. An acquaintance walks by without saying hello? He probably didn’t see us. A driver on the road cuts us off in traffic? He is rushing to his dying father’s bedside. Such interpretations not only benefit the recipient of our charity; they reduce our stress levels.

Sometimes, however, the charitable interpretation strains credulity. Why would a company that sells slaughtered animal products want to deny the word “burger” to a company that sells non-slaughtered products? Is the animal company truly worried about confusion, as some claim? Could it be that people who come to the store seeking pig-derived bacon wind up with veggie bacon by mistake? Maybe, but it seems unlikely.

When meat sellers complain about the use of familiar words—like “burgers” or “chik’n”—to describe non-slaughterhouse-based products, they conflate two kinds of competition, only one of which is unfair. The unfair kind involves a product that purports to be something it is not. A box labeled “chocolate chip cookies” but made with carob chips comes to mind (sorry mom). The fair kind involves a product that purports to be a suitable replacement for something it’s not. An example would be a carob bar called “Compare to Chocolate.” Saying “this is chocolate” when it isn’t is a lie; saying “this resembles chocolate” leaves the choice up to the consumer. The consumer may prefer not to pay people to slice into a frightened animal’s throat, the consumer may care about the environment, or the consumer may be allergic to chocolate. Regardless, using words like “veggie,” “plant-based,” etc. highlights the fact that no animal was killed to make the product; the veggie product, quite deliberately, is an alternative to the animal product. 

When Big Ag tries to stop plant-based and cell-based meat companies from using words like “burgers,” “meat,” and “bacon,” it is hard to avoid the conclusion that the industry organizations just don’t like competition.  This, of course, is familiar territory: Big Ag is no stranger to double standards, as John Lovvorn discusses in this Animal Law Podcast. It has fought for special treatment under the Animal Welfare Act, dormant Commerce Clause and Supremacy Clause.  And now, it wants to cut consumers off from products that leave behind the slaughterhouse, an enormous carbon footprint, and a primary source of human illness. Big Ag could, of course, use clearer words itself—words like “slaughterhouse,” “animal tissue,” “animal blood,” and “look out for intestinal bacteria” could get the message across. But it avoids these crystal-clear words because it wants customers to forget where “real meat” comes from.  The issue—clearly—is not clarity for consumers. 

So, where does that leave us?  Big Ag’s goal is to stop fair as well as unfair competition, but what is its strategy?  Is Big Ag’s big concern plant-based or cell-based meat?  And to what extent will Ag-and-friends try to constrain plant- and cell-based labeling?

The best news for plant- and cell-based meat companies is that the agricultural industry organizations have not always spoken with one voice.  The US Cattlemen’s Association was the first industry group to suggest that words like “beef” could not be used on products unless the products were from “traditionally harvested livestock”—the Disney Channel term for slaughtered animals.  But tie-dye wearing hippies did not offer the initial line of resistance; rather, it was the National Cattlemen’s Beef Association that attacked the petition as “ill considered” and “missing the mark.”  (To the cattlemen’s credit, we feel obligated to add that no comments were made about hand size.).  As described in detail in the Verdict column, the National Cattlemen believed that the U.S. Cattlemen’s petition contravened the former's most important goal: ensuring that the USDA would have jurisdiction over cell-based meat. 

As far as labeling was concerned, Big Ag’s agreed-upon trajectory was, seemingly, to get plant-based meat to call itself “imitation meat.”  In Painter v. Blue Diamond Growers,  however, the Ninth Circuit held that almond milk is not “imitation milk” because it is not milk that substitutes inferior ingredients.  For courts following this sensible holding, it seems unlikely that plant-based meat would need an imitation label, because plant-based meat likewise is not meat that substitutes inferior ingredients. Supporting this projection, a Virginia Bill that would have mandated “imitation” labels on plant-based meat fell dormant.  So Big Ag won the battle of securing (partial) USDA jurisdiction over cell-based meat and requiring cell-based meat companies to jump through the USDA’s pre-market hurdles, and it lost the battle for “imitation” labeling on plant-based meats. 

In the aftermath of the jurisdictional and “imitation” battles, the industry’s ideas for labeling restrictions have seemingly realigned.  Ten states have now passed statutes in keeping with the U.S. Cattlemen’s original proposal.  Missouri was the first when it revised Mo. Ann. Stat. § 265.494 to state that misleading practices include “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Mo. Ann. Stat. § 265.494 is a criminal statute, and Missouri can imprison violators for up to one year.  As expected, Missouri is claiming the law aims to prevent consumer confusion.  Also as expected, the Missouri Cattlemen’s Association was behind the legislation. Senator Sandy Crawford said it all when, explaining Missouri’s revised labeling law she declared, “We wanted to protect our cattlemen in Missouri and protect our beef brand.”  

More equivocal than the Missouri Cattlemen’s role is that which the Missouri Department of Agriculture (MDA) played in the aftermath of the legislation.   Among its many infirmities, Missouri's statute is unconstitutionally vague.  Providing some clarification, the MDA’s memo states that it will not recommend prosecution if plant- and cell-based meat labels contain both: (1) a “[p]rominent statement on the front of the package, immediately before or immediately after the product name, that the product is ‘plant-based,’ ‘veggie,’ ‘lab-grown,’ ‘lab-created, or a comparable qualifier; and (2) a “[p]rominent statement on the package that the product is ‘made from plants,’ ‘grown in a lab,’ or a comparable disclosure.”

Though it sounds helpful, the enforcement memo is actually useless, as ALDF’s Amanda Howell explains in this Animal Law Podcast. MDA does not enforce the law directly; rather, MDA reports suspected violations to one of Missouri’s 115 county prosecutors, who have discretion over whether to charge anyone.  Moreover, county prosecutors can pursue criminal charges without any referral from the MDA, and the MDA is the only body that would likely look to the memo for guidance.  Finally, the enforcement memo is completely non-binding. So, why did the MDA promulgate it?

We propose two theories.  First, the MDA recognized that the vague statute was unconstitutional and was putting a bandaid on it. The memo is nonetheless a step in the right direction.  Plant-based meat companies should disclose the nature of their product, and requiring them to do so makes a lot more sense than telling them, “Hey, if any one of our 115 prosecutors thinks your product ‘misrepresents’ itself as meat—maybe because you showed a picture of deli-slices, maybe because you drew a cow made of broccoli, or maybe because you used the word ‘meat’ and called your product ‘vegan plant-based meat without any meat at all’—your CEO could go to jail for a year.”  In short, the MDA may represent the voice of reason for Big Ag: it wants to target plant- and cell-based meat companies but recognizes the constitutional limitations on powerful lobbying. (To be clear, even if the provisions of the enforcement memo were binding and effective, Missouri’s law would be unnecessary and discriminatory.  Federal and state mislabeling provisions already exist, and there is no need for states to add their own provisions targeting specific products.  Moreover, if such a statute stays on the books—whether it is enforced reasonably or not—other states will use it as a model, as many have already done.) 

Our second hypothesis is that the MDA, while trying to patch up the statute to appease plant-based companies, was attacking cell-based companies; it quietly asserted that cell-based meat products warrant the same labeling disclosures as their plant-based counterparts.  It has been painful for the dairy industry to lose market share to soy milk, almond milk, oat milk etc., and likewise, it will be painful for Big Ag to lose market share to plant-based meat.  But it probably won’t be fatal.  Big Ag’s biggest concern may now be getting out in front of cell-based meat, which threatens to replace “traditionally harvested livestock” altogether.  By compromising on plant-based meat labeling (now that it has, already, lost the imitation battle), and lumping plant- and cell-based meat together for labeling purposes, Big Ag might be able to secure stricter labeling for cell-based meat than it would have been if it had addressed the product independently at a later date.

In sum, we end this column with three hypotheses about Big Ag.  First, Big Ag (shockingly) will do whatever it can to prevent fair as well as unfair competition from plant- and cell-based competitors.  Second, although Big Ag wants laws that force the harshest restrictions on plant- and cell-based meat labeling, the industry is recognizing that laws are more likely to survive constitutional challenge if they require disclosure rather than suppression of information.  Third, Big Ag will try to treat plant-based and cell-based meat interchangeably, surreptitiously pre-implementing overly stringent provisions for the latter. 

Regrettably, we find no evidence here of Big Ag’s intention to protect consumers.