Loyola University Chicago School of Law, JD 2023
The plant-based food market has been exploding in recent years, with the plant-based meat market expected to reach a value of $7.4 billion by the end of 2022 and the alternative dairy market reaching a value of $23.2 billion in 2021.
In addition to plant-based alternatives, food scientists have been working on formulating meat derived from animal cells, commonly known as cultured meat or cultivated meat. Cultured meat is genuine animal meat but produced in a way that minimizes some of the harmful environmental impacts associated with raising and farming animals for food.
The meat and dairy alternative markets require regulation, but despite their widespread and growing popularity, the U.S. Food and Drug Administration (FDA) has been slow to issue regulations that encompass these markets. In January 2022, the FDA released a list of draft and final guidance topics that it intends to complete before the end of 2022. These topics include draft guidance for plant-based dairy alternatives, plant-based meat alternatives, and for cultured meat. The FDA is soliciting public comments on the proposed guidance, although as of now none of the draft guidance topics have been released to the public
In the U.S., the plant-based meat market, which started as a relatively niche market comprised of mainly vegetarians and vegans, has seen tremendous growth in recent years and is on its way to accomplishing mainstream integration. In 2020, plant-based food sales grew twice as fast as overall food sales. Plant-based milks reflect 15% of the total share of the retail milk market, with plant-based meat claiming 1.4% of the share of total retail meat market. Market research statistics indicate that plant-based meat could follow the growth trends plant-based milks experienced when they first emerged on the market, creating the possibility for parity among the plant-based meat and milk markets, a potential 14-point growth in the plant-based meat market.
Plant-based meats are gaining widespread mainstream attraction, with major fast-food chains such as Burger King introducing plant-based options to their menu. In 2019, Burger King unveiled the Impossible Whopper, a twist on their signature burger with none of the meat. The Impossible Whopper was a commercial success, with sales from the third quarter of 2019, when the Impossible Whopper was released, outperforming McDonald’s sales in that same quarter. In June of 2022, Burger King announced two additions to the Impossible Burger lineup – the Impossible King and the Impossible Southwest Bacon Whopper. While the Impossible King remains vegetarian (though not vegan) friendly, the Impossible Southwest Bacon Whopper shows that Burger King’s choice to offer Impossible Burgers is not in an attempt to attract more vegans to the store – the Impossible Southwest Bacon Whopper includes real bacon in addition to the plant-based Impossible patty.
This may be a reflection of the broader national trend among individuals in the United States to consume less meat, regardless of any intention to go fully meat or dairy free. According to Gallup, only about 5% of Americans have identified as vegetarian in the past two decades, with even fewer identifying as vegan. Despite the relatively small number of Americans identifying as vegetarian or vegan, a 2019 Gallup poll found that nearly a quarter of Americas are eating less meat, citing health concerns, environmental concerns, and food safety reasons as the main reasons for the switch.
The first cultured meat burger was unveiled in 2013, and by 2015 the first four cultivated meat companies were founded. Since 2015, the cultivated meat industry has grown to more than 60 companies on 6 continents backed by more than $450 million in investments. Although still a relative newcomer to the alternative meat market, the cultivated meat market is projected to potentially reach $25 billion by 2030.
Benefits of alternative meat
Plant-based diets can benefit individual health as well as the environment. The American Heart Association touts the benefits of consuming less meat in decreasing the risk of heart disease, stroke, high blood pressure, high cholesterol, and type 2 diabetes. While plant-based meats do offer some nutritional benefits, they are not a perfect option – while lower in fat than real beef, plant-based options are often higher in sodium.
On the environmental side, animal agriculture takes up 77% of all agricultural land on Earth, and contributes more to climate change than exhaust emissions from the entire transportation sector. The production of plant-based meats offers a reduced carbon footprint when compared to traditional meat, but still requires substantial energy and resources to produce. Because it is created entirely in a controlled lab environment, cultivated meat eliminates the need for farmland entirely.
Plant-based and cultured meat options offer consumers the opportunity to obtain the flavor they crave, but with fewer of the negative environmental or health consequences they may be seeking to avoid.
With no existing federal regulation, the alternative meat market is subject to a patchwork of state regulations. Certain states, such as Arkansas and Louisiana, have enacted legislation that expressly prohibits plant-based meat alternatives from using terms like “burger” or “sausage” on labels and packaging. In other states, such as Missouri and Mississippi, labeling laws prohibit companies from using terms like “veggie burgers” and “veggie bacon,” although both states have indicated these statutes will not be enforced against producers of plant-based meat alternatives as long as the product label clearly indicates it does not contain animal meat.
Other states that have issued regulations have similarly contradictory positions. These varying requirements result in uncertainty for producers of alternative meats with large scale national markets. As a result of the inconsistent state regulations, producers could meet the regulatory requirement in one state while simultaneously running afoul of a requirement in another state. Federal regulations are needed to correct these issues and provide clear guidance for producers.
Proposed FDA guidance
Despite not yet being released to the public, the proposed FDA guidance is already generating some controversy between the alternative and conventional meat and dairy markets. The Office of Management and Budget (OMB) has been receiving comments on the proposed FDA guidance on plant-based dairy alternative seeking essentially opposite outcomes from the regulation.
An open letter from United States Senators Booker and Lee urges the OMB to reject the FDA’s draft guidance to the extent it “asks plant-based milk to identify differences without doing the same for animal milk,” citing the hardships this would pose for producers of plant-based alternative dairy products. These concerns seem to object to the Center for Science in the Public Interest’s suggestion that non-nutritionally equivalent plant-based dairy alternatives feature a prominent disclosure on the front packaging or the National Milk Producers Federation’s petition requesting “imitation” labeling for nutritionally inferior dairy alternatives. The Senators’ letter also cites to a 9th Circuit decision which found that the use of a qualifying term (such as soy, almond or oat) before “milk” mitigates any concerns about consumer confusion regarding nutritional equivalency of dairy and non-dairy milks.
Without clear FDA guidance, producers of alternative meat and dairy products will continue to face uncertainty regarding their legal obligations relating to packaging disclosures and run the risk of costly litigation due to the patchwork of local regulations that govern in the absence of clear federal guidance. The FDA’s guidance should reflect the alternative meat and dairy market’s continued growth in the U.S. and consider finding ways to promulgate guidance that will not result in forcing producers to substantially alter their packaging and production mechanisms (i.e., regulations that do not call for new labeling requirements at odds with the current method of doing business). Market trends and consumer data should be considered in determining the market appetite for the alternative meat and dairy industries, and guidance should seek to simplify, rather than complicate, the requirements producers must comply with.