Wisconsin bills seek ‘Truth in Food Labeling’

Frustrated by delays and inaction at the federal level, dairy producers continue to wait for the federal Food and Drug Administration (FDA) to issue a ruling on which products can be labeled with the term “milk.” Since the FDA held hearings on the use of common names for foods, plant-based products labeled “meat” or “burger” have also gained a foothold in the marketplace and are now a target for scrutiny among farmers and their organizations.

Given the inaction from federal authorities, many states – including Wisconsin – are beginning to legislate those terms at the urging of their agricultural producers.

Three Wisconsin lawmakers are trying for a second time to pass measures that would create standards for which products can use terms like “dairy”, “meat” and “milk.” Similar legislation died at the end of last session when lawmakers didn’t take action on it.

The lead author of the legislation, state Sen. Howard Marklein (R-Spring Green) said that as a senator for one of the most agriculture-dependent districts in the state he is always looking for ways to support farmers and the agricultural economy. He was encouraged to introduce the measures in 2019 after surveys showed that 48 percent of consumers thought that fake plant-based cheese was actually real cheese.

Now, Marklein is trying a second time with three bills dubbed “Truth in Food Labeling.” He and the bill’s co-authors testified at a hearing before the Senate Committee on Agriculture recently.

MORE: Farm groups, plant-based food advocates differ on state bills

The Senate Bills all have Assembly counterparts that mirror their provisions. They are Senate Bill 83 on Milk Labeling (also AB 74); SB 82 on Meat Labeling (AB 75); and SB 81 Dairy Product Labeling (AB 73).

“This legislation is extremely important to the farmers and food processors in my district,” Marklein said. “They feel very strongly about the integrity of food labeling and are frustrated by the misleading labeling that has invaded dairy and meat cases throughout our grocery stores. It’s disappointing when you open a carton of ‘ice cream’ and discover have you mistakenly bought a flavorless, dairy-free alternative, rather than the creamy, delicious treat you expected.”

The co-author of the bills, state Rep. Travis Tranel (R-Cuba City) said: “Milk is from a cow, meat is from an animal. Consumers, farmers and producers deserve clear labeling. Buyers should be able to easily purchase the real food products they intend to purchase. When I select a package of provolone cheese, I shouldn’t have to figure out if it is made from real milk or coconut oil and modified starches. I want the real thing.”

Tranel, a dairy farmer, has served in the Wisconsin Legislature since 2011.

A third co-author of the package of bills is Rep. Clint Moses (R-Menomonie) who signed on because he feels that consumers should know exactly where their food comes from. “There are many misleading and trendy food labeling tactics. It can be difficult for consumers to understand what they are actually buying. Real, quality, whole foods are the best for consumers,” he said. “As a lamb and cattle farmer, I work hard to raise high quality animals to produce high-quality meat.”

Marklein and Tranel led the push for the Truth in Food Labeling legislation during the 2019-2020 legislative session. Moses replaced Loren Oldenburg (R-Viroqua) as author of the Truth in Food Labeling for Meat Bill.

Marklein said he knows the bills are not a silver bullet that will solve the ills in the agricultural economy but they are something that can be done to protect and promote real, healthy, high-quality agricultural products to consumers. “These bills may also help put pressure on the federal government to take action on existing food labeling regulations that are not currently being enforced,” he adds.

“First and foremost, this is about transparency for people deciding what food to buy," said Amy Penterman, president of the Dairy Business Association. "You can find any number of products that are labeled to mimic real milk, cheese and other dairy foods. Customers deserve to know the differences between those products and the real deal. Variety can be a good thing; dishonesty is not."

What the bills would do

Under SB 81 (dairy products) no person may label or sell a food product as a type of dairy product, such as cream, yogurt, or cheese, unless that food product is a dairy product. The bill also addresses dairy “ingredients” saying “no person may label or sell a product as a dairy ingredient unless it is derived from cow’s milk or hooved or camelid mammal’s milk.” Written into the bill is a requirement for the Department of Agriculture, Trade and Consumer Protection (DATCP) to promulgate rules to implement the bill’s prohibitions.

Each prohibition in the bill applies only if at least 10 states out of a group of 15 states listed in the bill enact a similar prohibition by June 30, 2031. Otherwise the prohibition does not apply. Those states are Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, North Dakota, North Carolina, Ohio, South Dakota, Tennessee, Virginia and West Virginia.

Senate Bill 83 addresses the labeling of food as “milk”. Under this bill no person may label or sell a food product as milk unless it is cow’s milk or milk from a hooved or camelid mammal that meets certain specifications under federal law.  As with the dairy products bill, this measure requires DATCP to promulgate rules to implement the prohibitions and also would apply only if at least 10 states out of the group of 15 enact similar prohibitions by June 30, 2031.

The ten-state clause was included in the two bills to make sure the legislation doesn’t violate the commerce clause of the U.S. Constitution, which allocates the regulation of interstate business to Congress and not to individual states, a Marklein staffer explained to Wisconsin State Farmer. She also said the measure was modeled after legislation in those other states and “tells the FDA we’re all on the same page.”

It is hoped that if enough of this core group of states pass legislation, it will spur the federal agency into taking action.

Senate Bill 82 and its Assembly companion prohibit the sale of a food product that is labeled as any type of “meat” unless it is derived from the edible part of the flesh of an animal. The measure specifically states that this does not include cultured animal tissue that is produced from animal cell cultures.

The bill defines “animal” as a mammal, bird, reptile, amphibian or mollusk. This bill, unlike the two dairy bills, does not include the clause that only makes it effective if 10 other states pass similar prohibitions.

An amendment to the measure would allow a person to label and sell a meat alternative as long as it is labeled as a “meat alternative” if that label clearly indicates that the product does not contain meat from any animal by using one (or more) of the following terms: “plant-based”, “vegan”, “meatless”, “meat-free”, “vegetarian”, “veggie”, “made from plants” or a comparable qualifier.

What other states are doing

New York legislators are working on a bill (Assembly Bill A507) to define milk as federal regulations do – the “lacteal secretion obtained from one or more healthy mammals.”

In Texas, lawmakers have passed House Bill 316 that would define “meat” as “any edible portion of a livestock carcass that does not contain lab-grown, cell-cultured, insect or plant-based food products.” The measure bans the term “beef” and “chicken” and other meat-related terms on plant-based labels and would also apply to cell-based meat products and insect proteins.

Opponents of the measure said it was merely a way to try to stifle the growth of meat alternatives. They maintain that sales of these alternative “meats” grew by triple digits when the first wave of the coronavirus pandemic hit the United States.

Apologists for the many plant-based products dispute the fact that consumers are confused by current labeling. They are suing several states that have enacted legislation similar to Wisconsin’s proposals. One of the legal arguments being used by these plant-based food advocates is that their First Amendment rights would be infringed upon by any and all of these proposed laws.

Some – but not all – court cases, appear to support their position. In 2019, an Arkansas law that tried to limit the use of meat terms on plant-based products was halted by an injunction in federal court that prevented enforcement of the state law. U.S. District Judge Kristine G. Baker ruled that a lawsuit against a state law restricting “meat” terms on plant-based products was likely to prevail on the merits of its First Amendment claim. She granted a preliminary injunction against the law.

In Virginia, Gov. Ralph Northam vetoed a bill that would have limited the use of the term “milk” on food labels to the “lacteal secretions of hooved animals”. His veto message said that the measure “could hinder some businesses’ ability to thrive” and would likely involve “conflicts” with both the U.S. and Virginia Constitution and the protection of “commercial speech” in both constitutions.

A judge in California recently oversaw a case involving the term “butter” on plant-based products from Miyoko’s Creamery. That judge said that “the state’s showing of broad marketplace confusion around plant-based dairy alternatives is empirically underwhelming.”

But not all cases are going the way the plant-based advocates would like. A judge in Oklahoma refused to block a law that requires certain size and prominence in labeling for qualifiers such as “vegan” on alternative “meat” products. In a November 2020 order, Judge Stephen Friot ruled that the court was “satisfied that the possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident.”

He further noted that “the terms do not provide… sufficient information for the reasonable consumer to conclude that the product is plant-based rather than animal-based.”

In what was considered a victory for plant-based “meats” the European Union struck down a proposal to prevent plant-based meat alternatives from using common terms like “burger” or “steak.”

On the other hand, EU lawmakers went the other way on plant-based “dairy” products when they limited the ability for dairy substitutes to be marketed as dairy “alternative” or “style.”