The COVID-19 pandemic that upended the country last year put health even more top of mind for individuals, and food labeling litigation and regulation has reflected novel developments consistent with consumers’ increased focus on healthy products. From the rollout of plant-based proteins that test our understanding of what it means to be “meat,” elixirs masquerading as cures for the virus, and new takes on what it means to be “all natural,” recent months presented food and beverage manufacturers, class action plaintiffs, and regulators with myriad new labeling issues. The Biden administration is yet another factor likely to impact this area going forward, so the issues implicated in recent food labeling legal action—the conflict between labeling requirements and the First Amendment, the efficacy of administrative action versus private litigation, and the role of agency guidance—will remain relevant in the near future.

State Action Spurs Private Litigants

There can be no question that plant-based proteins are no longer just a niche market but have officially entered the mainstream. Beyond Meat’s market cap climbed almost 800% within two months of its mid-2019 IPO (Carmen Reinicke, Beyond Meat extends its post-IPO surge to 734%, breaking the $200-a-share threshold for the first time (BYND), Business Insider (July 23, 2019)), McDonald’s unveiled the “McPlant” sandwich in November 2020 (Danielle Wiener-Bronn, McDonald’s announces new chicken sandwich and ‘McPlant’ burger, CNN Business (Nov. 10, 2020)), and Starbucks plans to roll out oat milk to every store in the nation by spring 2021, Adam Campbell-Schmitt, Starbucks Will Offer Oat Milk Nationwide Next Year, Food & Wine (Dec. 10, 2020)). With their growing popularity, however, has come increased attention to how these products must be labeled to avoid misleading consumers, including whether they can be labeled “meat” and “milk” without confusing consumers who may be expecting animal products.

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