William & Mary Law Review


Katie Justison


“The issue is, what is chicken?” As the market for plant-based meats grows, state legislators are left with the question of what the words “chicken” and “burger” mean on food labels. In response to lobbying from the traditional meat industries, states followed suit with the dairy industry and created regulations and restrictions that carve out a meat industry monopoly on meat-related terms. Commercial speech restrictions such as these are guided by the Central Hudson test. Using that test, this Note will argue that while certain state regulations pass constitutional muster, others impose unconstitutional speech restrictions. This Note will draw particularly from the analysis employed by courts within the Ninth Circuit by addressing similar dairy regulations, commentary from interest groups, and FDA history. Finally, this Note will propose an FDA amendment and final notice that would create independent plant-based standards of identification and labeling guidance. An FDA amendment is necessary because, as demonstrated by the case studies, district courts have shied away from engaging in a thorough Central Hudson analysis. This separate regulation would allow plant-based food producers to use traditional meat language with the appropriate modifiers, as well as stand-alone “vegan terminology.”

This abstract has been taken from the author's introduction.