Upton’s Naturals and the Plant Based Foods Association

Upton’s Naturals was founded in 2006 by entrepreneur Daniel Staackmann. From its initial 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 and burger patties to jackfruit-based barbeque.

Since its founding, Upton’s Naturals has made clear to consumers that its foods contain no meat. The 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 an animal. But it also wants consumers to know the types of meat products it offers substitutes for, such as burgers, jerky, and bacon.

Upton’s Naturals is also a member of the Plant Based Foods Association (PBFA), a membership trade association that represents the interests of a growing number of companies offering innovative plant-based alternatives to conventional meat and dairy products. With nearly 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.

Mississippi’s Unconstitutional Advertising Restrictions

Unfortunately for Upton’s Naturals and PBFA, not everyone is happy with the competition from plant-based meat substitutes. In Mississippi and other states, the meat lobby has pushed for laws that restrict how plant-based meat alternatives may be labeled.

In Mississippi, these efforts took the form of Senate Bill 2922. Lobbied for by the Mississippi Cattlemen’s Association , the new law prohibits producers of plant-based meat alternatives from marketing their foods using words signifying any kind of meat or meat product. This means that even common terms such as “veggie burgers,” “hot dogs,” “sausages,” and “jerky” are banned.

Mississippi’s ban is devastating for companies like Upton’s Naturals. Upton’s Naturals markets its foods to consumers looking for meat alternatives. To continue selling its foods in Mississippi, Upton’s Naturals would be forced to design and print special labels just for the Mississippi market, without the words consumers are looking for when they shop for meat alternatives. This would be extremely costly and burdensome and frustrate consumers.

The First Amendment Protects the Right to Use Words Consumers Understand

Mississippi’s ban on meat or meat-related words on the labels of meat alternatives violates the right to free speech. Under the First Amendment, commercial information that is not false or inherently misleading enjoys substantial constitutional protection. Laws restricting this type of speech will be upheld only 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, there is nothing misleading about Upton’s Naturals’ use of terms such as “bacon” and “burger.” Just like nobody thinks that peanut butter is made from butterfat, nobody thinks that vegan bacon comes from an animal. Simply put, context matters. People shopping for meat substitutes know that what they’re buying doesn’t come from animals—after all, the labels clearly say,“100% Vegan.”

The real reason for Mississippi’s law is obvious: The meat industry is feeling the pain of competition as consumers seek out alternatives, and it wants to protect itself from competition. But the government has no power to keep consumers in the dark—or to prohibit the use of terms that consumers understand—in order to protect special interests from honest competition.

The Claims

This case raises a single claim under the First Amendment, seeking to vindicate the right to provide truthful advertising using terms that consumers understand.

The Litigation Team

The litigation team consists of Institute for Justice Senior Attorneys Justin Pearson and Paul Sherman.

IJ’s National Food Freedom Initiative

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. It also won constitutional challenges to Minnesota’s and Wisconsin’s restrictions on the right to sell home-baked goods. IJ is currently litigating cases challenging New Jersey’s ban on selling home-baked goods and Texas’s ban on craft beer manufacturers receiving compensation when their territorial rights are transferred to distributors. Earlier in its history, IJ won a United States Supreme Court case vindicating the right of wineries to sell directly to consumers across state lines.