Upton’s Naturals and the Plant Based Food Association
Upton’s Naturals was founded in 2006 by entrepreneur Daniel Staackmann. From its initial product line of flavored seitan—a wheat-based meat substitute that is common in Asian cuisine—Upton’s Naturals has grown to offer a wide variety of meat substitutes. These range from wheat-based bacon to jackfruit-based barbeque.
Since its founding, Upton’s Naturals has made clear to consumers that its foods contain no meat. Its labels clearly state “100% Vegan.” Upton’s Naturals doesn’t hide what it’s selling; it wants consumers to know that its foods are not from animals. But it needs to explain its foods’ characteristics using the plain language that consumers understand.
Upton’s Naturals is also a member of the Plant Based Foods Association (PBFA), an association that represents the interests of a growing number of companies offering innovative plant-based alternatives to conventional meat and dairy products. With over 150 member companies nationwide, PBFA works in the policy arena and in the marketplace to create a strong foundation for its members to succeed and thrive.
Oklahoma’s Unconstitutional Labeling Requirements
Unfortunately for Upton’s Naturals and other PBFA members, not everyone welcomes healthy competition. Across the nation, the meat lobby has pushed for laws that restrict how its plant-based competitors may communicate with customers.
In Oklahoma, this protectionism was taken to another level. The Oklahoma Cattlemen’s Association publicly bragged that it was responsible for creating House Bill 3806 and that the bill’s lead sponsor in the Oklahoma House of Representatives was one of the association’s cattle ranchers.
When it takes effect on November 1, 2020, this new law will ban producers of plant-based meat alternatives (like “veggie burgers” or “vegan bacon”) from marketing their foods unless they revise their labels to the meat lobby’s liking. Specifically, they must have a disclaimer—as large and conspicuous as their product names—that their products are plant-based.
For safe products, like veggie burgers, this requirement does not exist anywhere else in the country. Except for dangerous products like cigarettes, disclaimers are almost always in smaller type than the product name, just like the other wording on the label.
What’s more, Oklahoma’s new law is completely unnecessary given that it wouldn’t inform consumers of anything they didn’t already know. Before this law, there was no problem of misleading plant-based food labels. After all, companies like Upton’s Naturals already label their food as vegan, and Oklahoma had—like every other state—already banned misleading labels.
Meanwhile, Oklahoma’s new requirement is devastating for companies like Upton’s Naturals. Because no other state has Oklahoma’s compelled-disclaimer requirement, plant-based food producers would be forced to design and print special labels just for the Oklahoma market. Small companies that could not weather this burden—like Upton’s Naturals—would be forced to withdraw their products from Oklahoma.
The First Amendment Protects Speakers Like Upton’s Naturals
Oklahoma’s compelled-speech requirement violates the right to free speech. Under the First Amendment, commercial advertising that is not false or inherently misleading enjoys substantial constitutional protection. Laws restricting this type of speech—and compelling other speech—will only be upheld if the government can produce actual evidence that the laws address a real problem and burden no more speech than necessary to address that problem.
Here, context is crucial. There is nothing misleading about the way Upton’s Naturals uses terms like “bacon.” After all, it proudly says right there on the front of its boxes that the company’s products are “100% Vegan.”
The real reason for Oklahoma’s law is obvious: Cattlemen and other meat producers are feeling the pinch as consumers seek out alternatives to meat, and they want to insulate themselves from competition. But the government has no power to compel speech in order to protect special interests.
This case raises a single claim under the First Amendment, seeking to vindicate the right to provide truthful advertising.
The Litigation Team
The litigation team consists of Institute for Justice Attorney Milad Emam and Institute for Justice Senior Attorney Justin Pearson.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty. This case is part of IJ’s National Food Freedom Initiative, which IJ launched in November 2013. The initiative is a nationwide campaign that asserts property rights, economic liberty, and free speech challenges to laws that stand in the way of Americans who produce, market, procure, and consume the food of their choice. IJ has won free speech challenges to Florida’s prohibition on labeling additive-free skim milk as skim milk and to Oregon’s raw milk advertising ban. IJ also previously represented both Upton’s Naturals and PBFA in a successful challenge to Mississippi’s ban on their use of terms like “vegan burger” and “vegan bacon.” IJ is currently litigating cases challenging restrictions on the right to sell cottage foods in Nebraska, North Dakota, and New Jersey, as well as the right to provide free food for your neighbors in Washington. Earlier in its history, IJ won United States Supreme Court cases vindicating the right of wineries to sell directly to consumers across state lines.