The Right to Free Speech and Alt-Meat

0:00How freedom of speech impacts food labeling laws, and what tactics are brands taking to fight back against what they deem to be unfair regulation.

0:19Hi, everyone. I'm your host, Carol Ortenberg. On the NOSH podcast, we go inside the business of natural, organic, sustainable, and healthy food. This week, while our team heads to BevNet Live in New York City, we explore a hot-button topic in the food industry, freedom of speech and food labeling. Over the last few years, we've seen new laws and FDA rules attempting to regulate everything from alt-meat offerings to plant-based dairy to health claims. In this interview, reporter Lucas Southard sat down with Justin Pearson, senior attorney at the Institute for Justice, to discuss how and why brands are turning to the courts to push back on what they deem unfair labeling laws.

1:03Hi, Justin. Glad to have you on the podcast today. Happy to be here. I wanted to get you on the podcast to talk about your work arguing First Amendment cases, mostly as it pertains to CBG food and beverage, considering that's what this podcast is about. Recently, we've seen new legislation out of Texas dictating how meat analogs can be labeled. We've seen this before in a couple other states, and I know you've been following this. The way that it's phrased in the new Texas legislation was that to like solve unclear labeling for alt meats. So I kind of thought this would be a great place to start our conversation.

1:43I'd love to get your opinion on this specific case and how it relates to some of the work you've done in arguing, you know, First Amendment cases in food labeling in the past. I mean, it's quite simple. The new Texas law is garbage. Texas, like every other state in the country. Well, there you go. Podcast is done. It's garbage. There you go. So the thing to remember is every single state in the nation, including Texas, already has laws prohibiting misleading commercial speech, misleading advertisements and food labels and things like that. And so what this law says is that even though they're not violating any of those laws saying you're not allowed to mislead consumers, and even though these businesses' entire marketing strategy is on making sure that customers understand that their food doesn't come from animals, that somehow they need to, for some reason, and the reason is because certain cattle trade associations asked for it, but because of that, they have to go through the expense of reprinting their labels to say the exact same thing they're already saying in a slightly different font.

2:44It's ridiculous. All this was, and unfortunately we see this quite a bit, was politicians doing a favor for a powerful special interest group. This is over-regulation that does nothing but hurt the little guy. So you've told me you've been in the room when some of this legislative sausage, as you said, has been made. You know, how does policy dictate practice in food labeling? Can you give us an example of how this has happened or what you've seen in these public meetings where decisions like this one in Texas have played out will eventually impact these food companies and just the broader category in general?

3:25So there are really two types, right? It depends on whether we're talking about a law passed by a legislature or a regulation enacted by an agency. And I've been in both of those types of rooms, and I'm happy to talk about them both. But since we started off talking about Texas, I can tell you how these legislative processes tend to go. And that is that policy plays a remarkably small part in the process. And I don't even really mean that as a criticism. It's important to remember what you're talking about here are elected politicians. And the number one goal of any elected politician is to remain an elected politician.

4:01And so just inherently, what ends up happening is they are responsive to the more powerful groups who have the greatest likelihood of increasing their chance for reelection. or to put differently, they don't want to anger a group that could hurt their chance for re-election. And so, you know, I've testified at different state legislative committee meetings. And one of the things that becomes painfully clear is that when I walk into that committee meeting, all of the people on that committee have already made up their minds before the committee meeting happened. And that's because the way the democratic process works is legislators are encouraged to meet with their constituents, right?

4:40They're encouraged to have all of these meetings long before the committee hearing happens or the floor vote happens. And so they're talking to all these individuals and reaching a decision. And then, you know, they show up at this committee meeting where they're supposed to talk about policy and they've already all decided how to vote based on kind of who their friends are. It actually reminds me of a case that we might talk about later that I had in Mississippi, where Mississippi banned the term veggie burgers. And I was the lead attorney in a case brought on behalf of plant-based food companies to challenge that ban.

5:10And, you know, And we won and they got reversed and rescinded. But when that ban was first passed, they asked the lead sponsor in the Mississippi legislature why he was sponsoring that law to ban terms like veggie burgers. And he said that it was because he was a member of the Mississippi Cattlemen's Association and his friends asked him to. That's not a good reason to censor someone's speech, but that's how the legislative process plays out. And so I know this and other allies know this. And so we try to speak to the legislators in those closed door meetings, you know, long before the committee meetings.

5:44But at the end of the day, they tend to be most receptive to the most powerful associations. So in your role, how do you find it's best to fight these kinds of cases, like in the case of the Mississippi, you know, legislation that you got overturned? That was with, it was like Upton's Naturals. Right, Upton Naturals was the lead plaintiff in that, which is they're a small but growing plant-based food company based out of Chicago. But they sell throughout the nation, not on a ton of outlets, but they were sold, for example, in the Whole Foods in Jackson, Mississippi and some other places. And so they were impacted by this.

6:22And so the way I approach it is really twofold. First of all, because there are not unlimited hours in the day, if I can convince an agency or a legislator to do the right thing, I'm happy to go meet with them and I'll send them letters and I'll send them white papers and I'll talk to them and I'll show up at committee hearings. But in the back of my mind, I know that I always have plan B, my favorite thing to do, which is to sue them. I love being a constitutional litigator. That's why I get out of bed every morning. I love to wake up each day and sue the government. I don't sue them for money.

6:51I work for a nonprofit group, but thanks to our donors, I get paid to go around the country representing small business owners for free in these types of lawsuits. And so I know that I always have that in my back pocket. And particularly if it's a First Amendment challenge, I know that it's a part of the Constitution where there are meaningful burdens imposed by the courts on the government. And so I've got a good chance to win. We've talked a little bit about the kind of legislation, how some of these laws or some of these different cases come up. Can you tell me a little bit about the other half, the regulation?

7:24How does the federal government make decisions either through the FDA or the USDA on how food labeling occurs? And how does the Constitution play a role in these frameworks or in how you argue these frameworks? So the answer to the beginning of that question, how they do things at federal regulatory agencies, the answer is slowly, very, very slowly. I've heard that before. That's definitely not the first time I've heard it. So, I mean, so let me give you an example. And I think we might talk in a minute about these things called food standards of identity. Basically, they're these federal definitions, and then the states often adopt them as well, saying, you know, what can be called what?

8:04Like what ingredients you have to have in something before you can call it what it is. And just to illustrate how slow these agencies operate, in 2005, there was this unanimous, uncontested push to repeal the standard of identity for frozen cherry pies. Right. So there was this definition that had been on the books for decades saying that if you want to sell something and call it a frozen cherry pie, like you couldn't use ugly cherries. You could only use like the prettiest cherries. And it said like how thick the crust had to be. It was just ridiculous. That's discrimination against cherries in my mind.

8:39And it actually touches on not to go too far off on tangent, but we have a problem in this nation about like perfectly good food that just doesn't look pretty not being consumed. but that's a whole nother topic. And so anyway, so in 2005, this giant collection of frozen cherry pie sellers and consumer groups and anyone you could think of all convinced the FDA to repeal this definition of what could be called a frozen cherry pie. Totally unopposed. So the FDA could go as quickly as it could possibly go. Lightning speed by FDA standards, completely uncontroversial. it took 15 years, 15 years that finally got repealed in 2020.

9:16Like that's lightning speed by FDA standards. And so it's important to realize, and that's like the best case scenario, right? And so it's important to realize that when you're talking to these federal agencies, like they don't think in like days or weeks, like you and I do, they think in decades and they openly admit this, like if admits the wrong word, like it's just, it's just reality. Like if you talk to them at these certain kind of public workshops that they'll have, as I've done, they just openly talk about the fact like they're talking about something that they're planning to possibly implement decades from now.

9:46Like that's just the timeframe that they're dealing with. And so you have to realize that, you know, that's kind of how you have to think when you're interacting with them. And then of course there are other problems, right? Not only do they operate on a timetable that's very different than the rest of society, but the very nature of regulatory action really hurts the little guy or little person, right? Or, you know, whoever they may be like. And so I actually went to an FDA public meeting on plant-based milk, on whether, you know, things like almond milk and coconut milk and oat milk should be allowed to call, be called almond milk or coconut milk or oat milk.

10:25And one of the things that was striking to me was who was there, right? And you have to realize that when you have agencies churning out thousands and thousands of proposed regulations. It takes a lot of resources to track all those proposed regulations, decide which one you're going to chime in on, show up to their public meetings that they have in Rockville, Maryland, outside Washington, D.C. And so small farmers and people like that, they're not showing up at those meetings. They don't even know those meetings exist. But the giant companies, the giant factory farms, the giant trade associations run by those giant companies, they are well aware of what's going on and doing everything possible to influence the regulatory behavior.

11:03And so I showed up at this meeting. And one of the things that was striking to me was, you know, at the beginning, the people who work for the agency, they're not bad people. They're just government employees kind of doing their jobs. You know, they asked for a show of hands over like what groups were being represented. And so they said, you know, who here is from academia? And like one person raised their hand, like who here is from the media and like some blogger raised their hand. And this is a room of like over a hundred people. Then they ask, who hears from a consumer protection group? Like nobody raised their hand.

11:32Then they ask, who hears from trade associations or companies? And every other hand of the room went up, right? That's who has the ability to kind of chime in on this. And so even if you overlook the other problems with agencies and kind of how slow they operate, the fact of the matter is the entire way they gather information and interact with the public is ridiculously skewed towards these giant conglomerates who have the resources to actually track what's going on. And so, you know, as sad as it is and how as messed up as the legislative process is, it's actually even worse for the little guy when you talk about these federal agencies.

12:08And, you know, and I'm not like, let me put it this way. I've dealt with the government long enough that it takes a lot to shock me. But even I was a little bit taken aback about how those types of meetings went. When I went to one for the first time, it was a little disturbing to me, even by my standards. It's definitely not surprising to me, but yeah, it does paint a pretty stark picture about how some of these decisions are getting made. In terms of how to make this process move along faster, does that actually make some of these, overturning some of these decisions or make this process of regulation go quicker?

12:50Or at least, you know, wheels turn a certain direction quicker? Yeah, it does. I mean, so in that Mississippi case with the veggie burgers, within a couple months of my following that lawsuit, the State Department of Agriculture had agreed to totally revise that approach and that they'd found a way to kind of work around the statute and not have to enforce it to ban veggie burgers. And so it took a couple months in a situation where there was no chance that that law was not going to pass the legislature. And yet a lawsuit got rid of it in a couple months. Or talking about the FDA, I had a case against the FDA, it was one of a couple cases involving the federal standard of identity for skim milk.

13:27And so for decades, the federal regulation defining skim milk said that skim milk had three ingredients. The first ingredient was skim milk. The other two ingredients, and that should tell you everything you need to know, right? But the other two ingredients were vitamin additives. And then a bunch of states had copied that definition for their own state laws. And so Originally, I represented an all-natural dairy producer in the Florida panhandle named Mary Lou Wesselhoft, who just wanted to sell imitation-free dairy products. She pasteurized the milk, but that just means she heated it up. She refused to add anything to it, and customers would come to her farm instead of the local grocery store to buy additive-free dairy products.

14:08And so I ended up representing her in this big fight against Florida's law copied from the federal reg saying you can only call it skim milk if you injected artificial additives into the skim milk. And we won in federal appellate court. And then I turned around. And so we filed that lawsuit in 2014. We won in federal appellate court in 2017. And that was the end of the case. So that's three years, which sounds like a long time. But for the types of stuff we're talking about now, it's not long at all. And then even better, after we won that case, I got contacted by all these farmers across the nation saying that what happened to Mary Lou also happened to them.

14:44Now, with Mary Lou, because she doesn't sell across state lines, we were only suing the state of Florida. But some of the people who contacted me do sell across state lines. And so we were able to actually challenge the FDA regulation. And after we filed that lawsuit, the FDA said that because of that precedent we created on behalf of Mary Lou, and because of this new sequel lawsuit against the FDA directly, they were no longer going to enforce that regulation anywhere in the nation, right? And now it's not like it happened overnight, right? I mean, you know, that lawsuit was going on for over six months before the FDA threw in the towel like that.

15:20But again, that's that same agency that took 15 years to enact a completely unopposed reform of their frozen cherry pie definition. And we were able to get them to say, we're no longer going to enforce this regulation. That's been on the books for decades after about six or seven months of fighting in court. And so it's all relative, right? Like seven months isn't quick by most normal standards. But when you're talking about the FDA, that's as fast as it gets. It might be a good opportunity to tell us a little bit about the case that you're currently fighting out of Las Vegas, I believe. I wrote about it a couple months ago.

15:56That's kind of how we met. But I'd love for you to tell our audience a little bit about that case because that falls more into this idea of the First Amendment and how it plays into food labeling or what a food company can actually put on how they can describe their products to consumers and where that somewhat gray area of federal regulation can make that difficult, or in this case, can completely change how the product is marketed. It really boils down to this issue of being allowed to tell the truth, right? And the Supreme Court has repeatedly said that the First Amendment protects your right to tell the truth, and that includes when you're selling your products.

16:39And so what's going on there is we're representing this amazing consumer in Las Vegas named Michelle Przbaki and this incredible entrepreneur in New York named Kate and Vakil who wants to sell certain products to her and describe them in a way that will help her and help tens of millions of other Americans. And these involve something called low FODMAP foods. FODMAP is just an acronym that stands for certain sugars that are hard to digest. And so there are tens of millions of Americans who suffer from digestive issues and will literally be told by their doctors, seek out low FODMAP foods. If you, it's not that they're not going to cure your underlying disease.

17:21But by definition, if you have difficulty digesting foods, you should stay away from the foods that are most difficult to digest. Your symptoms will go down if you avoid these difficult foods. The only problem is it's impossible to find these foods. I mean, practically speaking. And that's because even different parts of the same ingredient will be either low FODMAP or high FODMAP. And so for example, if you're looking at a green onion, like one end of that green onion will be high FODMAP and another end will be low FODMAP. And so an ingredient list that says it has scallions in it or green onions in it, like that doesn't really help you as someone who's looking for low FODMAP foods.

17:58And Michelle literally almost died. Her intestinal issues were so severe. And so she was desperately looking for these low FODMAP foods. And again, it's really hard to tell from the labels. And she found an entrepreneur selling at least a few of them and marking them as low FODMAP foods and explaining their lack of FODMAPs in them. And that was Kayton Vakil in New York. And Kayton similarly suffered from digestive issues. And so he decided that this was a great opportunity to help out other people like him and start a little food business, selling stuff primarily online, although in a couple of retail establishments as well, with low FODMAP foods that are clearly marketed towards people looking for low FODMAP food.

18:42And so that went well for a little while because Hayden didn't realize that what he was doing was a crime. He didn't realize that the federal government had banned the term low FODMAP. And the reason, and it wasn't even that the federal government expressly banned it and say, you shouldn't say things are low FODMAP. They eventually did, but I'm talking about the regulations. But the way the regulations work is anytime you have a type of claim on a food about whether it's low in something or high in something or free, so like low sugar or high fiber or fat free, those are referred to as nutrient content claims.

19:18And the federal government has decided that you can only make nutrient content claims if they're on the federal government's pre-approved list of what you're allowed to say, which is then up to the federal government to update in a timely manner. But as we talked about before, the federal government never updates any of the regulations in a timely manner. The other thing to realize is these regulations go back many, many decades. So part of the problem is you'll have these situations like this one, where regulation will get enacted for one reason, and then all sorts of other ways to address that same problem will crop up through other regulations, but that first regulation won't be modified.

19:53And so, So, you know, nowadays, like I said before, with Texas, every state as well as the federal government all have laws prohibiting misleading speech and not just one, like all sorts of laws prohibiting misleading speech. And so this type of regulation is just kind of a redundant regulation, but it's one that's causing a ton of harm, right? Because this list is so rarely updated that it's many, many steps behind the rest of society. And so you have tens of millions of Americans desperately seeking this food out who can't find it because it's not on this old list. And so that's why I'm following this lawsuit.

20:27I mean, Caten actually was able to sell and has been able to sell some of his low FODMAP foods. Because another interesting quirk is some foods are regulated by the FDA and some by the USDA. So his chicken broth, because that's a poultry product, that's regulated by the FDA. is beef broth because it's beef related. That's regulated by the USDA. And both agencies, even though they're enforcing the same regulation, do so in different ways. The FDA is kind of more like complaint driven and kind of after the fact and sending letters saying cease and desist. Whereas the USDA for the beef related products actually requires pre-approval.

21:03So before you're allowed to use that label. And so Caten actually for a couple of years was selling low FODMAP chicken broth without realizing he was violating the law and no one complained and the FDA left him alone. Then he decides to expand to, and he was also selling like spice mixes and seasonings and stuff, all very helpful. And then he decides to expand his offerings and also sell beef broth. Well, for his low FODMAP beef broth, he has to get pre-approval from the USDA. And that's when he learned that he was actually violating the law. The USDA rejected his application and said, no, you can't use this low FOMAP term.

21:39It's an unapproved nutrient content claim. You're violating the law for this beef broth label that you want to use. And oh, by the way, now we get to tell you that you're also violating the law for the chicken broth that you didn't realize you were violating when you were selling it all these years. And so it just left him in a really tough spot. And so again, I decided to bring this lawsuit in Las Vegas, where Michelle lives, really emphasizing how customers are hurt by this law. And then also including Caten as an additional plaintiff because he wants to provide this speech, right? So you have someone looking for this information, totally factual, uncontroversial information that their doctor told them to go find.

22:17Someone else who wants to provide this information. And the government says, no, not because there's anything wrong with the information, but just because it's not on our outdated list. And to try to update that list would take years and years and years. So we filed a lawsuit. Now, you mentioned to me that there's a pretty good shot that you all will win this case, mostly because you related to a Supreme Court decision that happened in the mid-90s that actually was involved Coors beer brewery or beer makers. Can you explain a little bit about that? Yeah, it's always surprising to me that Coors was the one that won this case.

22:54I love beer, and I don't mean to insult Coors, but it's a fight over whether you can talk about alcohol content and just Coors is not the first champion that would spring to my mind for that. But that's what happened. It just goes to show you that so often, you know, these regulations actually hurt the consumer rather than helping them, or at least take away consumer choice, right? You know, I guess you could argue whether this knowledge is helpful or harmful, but I'm a big fan of letting consumers decide for themselves. Like I'm totally against speech that defraud consumers. I'm a big fan of laws that ban misleading speech, but those laws are plentiful.

23:29And then you have these other laws that just don't seem to do anything but cause harm, like the one that was at issue in the Coors v. Rubin case, or Rubin v. Coors, I should say, what it was called when it got to the U.S. room court. But basically what was going on there was the federal government had decided to ban breweries from providing alcohol content information on their beer labels. And the reason was that the federal government was worried that if you knew how much alcohol was in the different beers, you would choose the beers with the most alcohol. Right. And so this lawsuit goes up to the, you know, through the court system and it makes it to the U.S.

24:04Supreme Court. And the U.S. Supreme Court ruled that that ban was unconstitutional. And the Supreme Court recognized that the government might have some sort of interest in trying to prevent people from choosing the highest alcohol beers. but you can't do that by banning truthful factual speech right and this is one this is just my personal favorite of a number of cases explaining that the first amendment does not allow the government to ban truthful factual verifiable speech and so the the ban was struck down and so now you can when you go and buy your beer you can see how much alcohol you know is in each beer and decide whether that's important information to you and choosing which beer to buy god bless America.