Imitation meat has become ambitious. In contrast to past meat alternatives such as tofu or seitan, new meat substitutes are advertised as almost indistinguishable from the real thing. Advertising also focuses on current concerns, like environmental or health benefits, rather than animal welfare. The result is that even non-vegetarians are now reaching for new, plant-based “meats.” States—prompted by a worried meat industry—have reacted to this trend with laws that would prevent non-meats from being labeled as “burgers,” “sausages,” “hot dogs,” and similar traditionally meaty terms of art.
In addition to bemused press coverage, many of these state laws have attracted First Amendment legal challenges. After all, advertising is protected speech, albeit of a lesser variety. Under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-64 (1980), courts determine whether the challenged advertising contains protected speech, but misleading advertising is not protected at all. The Supreme Court has held that limits on otherwise protected speech are only permissible if: (1) the government has a substantial interest; (2) which is directly advanced by the law; and (3) the restriction on speech is narrowly tailored to advance the government’s interest. Lawsuits challenging these state labeling restrictions are instructive for those wishing to advance—or challenge—legislation affecting meat labeling.
For example, a Missouri law makes it unlawful to “misrepresent[] a product as meat that is not derived from harvested production livestock or poultry.” [1] The alternative meat purveyor Tofurkey sued, joined by advocacy groups, claiming that the law infringed Tofurkey’s First Amendment right to advertise its products as “veggie burger” or “plant-based jumbo hot dogs.” [2] In response, the government argued that the law was permissible because it only prohibits misleading advertising: guidance from the Missouri Department of Agriculture permits non-meat labels with qualifiers such as “veggie” or “plant-based.” [3] A federal judge agreed that the law did not violate commercial speech under Central Hudson “because the statute only prohibits speech which would be misleading and this is a permissible government restriction.” [4] The ruling is on appeal with the Eighth Circuit.
In contrast, a 2019 Arkansas law outlawed labels that “[r]epresent[] the agricultural product as meat or a meat product” when it is not, or to use a “term that . . . has been used or defined historically in...
