Freer Speech for a Greener Market: Restoring Teeth to the Commercial Speech Doctrine

By Kelly Fitzgerald, Volume 21 Staff Writer

A product’s label is the first thing that grabs a consumer’s attention to grab an item off the shelf. What a food product’s label looks-like and sounds-like has a significant impact on what a consumer thinks that food might taste-like. You know this. I know this. And big business certainly knows this. This is why the powerful meat industry has successfully lobbied a tangling web of label requirements aimed specifically at meat alternatives.

The United States’ meat industry is currently more powerful than when Upton Sinclair wrote The Jungle, a popular novel highlighting the horrifying conditions in meat factories. The “Big Four” meat-packing companies––Tyson Foods, Cargill, National Beef Packing Company, and JBS––now make up 85 percent of the industry compared to just 25 percent in 1977.

This meat industry conglomerate isn’t just bad for consumer prices, it’s proven bad for the environment. According to some climate scientists, the meat industry contributes nearly 60 percent to all food production emissions. Not to mention, serious concerns related to land-use: deforestation, biodiversity loss, and water pollution.

To combat these issues, innovative food businesses have begun introducing new meat alternatives. Most familiar includes vegan meat in the form of “veggie burgers.” These burgers are often made of protein substitutes like beans, mushrooms, or grains. American consumers, with a more conscious eye toward the future, have taken a liking to this “meat-less” meat. In just 2019, sales skyrocketed by 11 percent, outpacing the overall U.S. retail food market by a factor of five.

However, the powerful meat industry isn’t sitting back, it’s fighting back. But instead of implementing more environmentally conscious practices of its own, the industry is weaponizing product labeling requirements. The United States Department of Agriculture (USDA)––the administrative body most responsible for these product labeling requirements––has become a critical battleground for meat industry lobbyists. And while the industry awaits effectuating its proposed federal regulations, it has successfully wielded its labeling influence at the state level.

The problem with these product labeling regulations is that they don’t do what they claim: promote the truth. The commercial speech doctrine carves out an exception to First Amendment protections for misleading or false advertising. But there is nothing misleading or false about a meat-less burger labeled “veggie burger.” Rather, these regulations are nothing more than blatant market protectionism tactics.

And the government knows this. In 2019, the Institute for Justice successfully challenged Mississippi’s bogus ban on the label “veggie burgers.” Significantly, this ban and bans like it, carry penalties costing thousands of dollars in fines and even jail time. But with just the threat of litigation, the state’s Department of Agriculture abandoned the regulation all together.

The meat industry justifies these bans on the grounds of transparency and “ending deception.” Meanwhile, the industry routinely exploits positive USDA-granted labels. For example, the term “free range” only means “the poultry has been allowed access to the outside.” There are no standards for length or frequency of the outside access, the population density outside, nor quality of the outside land. Poultry that is limited to just minutes of heavily crowded outdoors time would certainly distort what the term “free range” implies. Yet these conditions would still satisfy the USDA’s “free range” standard. The product labeling laws enable the meat industry to “greenwash” their products meanwhile placing bans on honest efforts to describe plant-based products.

In fact, these honest efforts were recently measured. A study conducted by the University of Louisville found consumers weren’t confused by vegan food product labels like “veggie burger” and “vegan butter” ––but quite the opposite. When labels were forced to omit words referencing animal products the result was actual confusion. Without the proper label, consumers were unsure about the product’s taste and use. Which means these product labels not only satisfy the commercial speech doctrine, but the bans do more to violate it.

Particularly problematic is the courts’ routine acceptance of speculation for misleading speech claims. But anyone can speculate. And our Constitution ought to require more than baseless conjecture before stripping away freedoms. The burden of proof falls on the government. But courts continue to rubber stamp agency determinations. For example, the district court held in Ocheese Creamery, LLC v. Putnam a label was misleading merely because it conflicted with the state’s definition. But of course, a label will conflict with the definition private interest has crafted against it. And this conflict has nothing to do with actual consumer impression.

This rubber stamping completely eviscerates the burden our Constitution mandates. The consequence is an unjustified loss of constitutional protection for speech. But the solution to this is simple: Require evidence to support the claims. When agencies assert that particular commercial speech is misleading or inducing consumer confusion, they must prove it. This is what reason requires––but more importantly, this is what our Constitution requires.

A perfect example of where the courts require this sort of proof, is trademark law. The courts conduct a likelihood of confusion analysis to determine if a trademark is being infringed. Under such analysis the courts will look to specific factors and compare the two marks at issue. Including, notably, evidence of actual confusion.

Under a similar framework, the courts should consider a multi-factor test for claims of misleading commercial speech. These factors might include: (i) actual evidence of consumer deception, (ii) intent to mislead, (iii) the content’s popular meaning, (iv) third party use of the speech, and (v) similarity between the speech’s meaning and its product. Implementing factors would fix objective criteria to gauge misleading commercial speech accusations. Which in turn would deter these market protectionism tactics. The criteria would ensure more consistent and accurate application of the commercial speech doctrine.

In the domain of commercial speech, constitutional rights are often stripped away with nothing more than a judge’s cursory glance. To restore protections, the courts should require agencies to meet their burden. And installing objective criteria would reinforce the protections our Constitution intended.