Burger King’s Plant Burger, State Meat Label Laws Could Collide

Fast food icon Burger King may face hurdles selling plant-based Whoppers in some states due to laws that don’t allow blurring of the lines between real meat and plant-based alternatives.

The partnership between Burger King and Impossible Foods was announced April 1. The newly branded Impossible Whopper is available in 59 Burger Kings in the St. Louis area and the company plans to expand to other locations within the U.S. by the end of the year.

While Burger King said it has nothing to worry about, seven states have laws making the mislabeling of non-meat based products as meat illegal. Federal laws would likely preempt them, but uncertainty about the scope of the preemption “might conceivably dissuade a company like Burger King from offering a plant-based option in a certain state,” said Thomas Gremillion, director of food policy at the Consumer Federation of America.

If a fast-food company like Burger King, the second-largest fast food hamburger chain nationally, faces roadblocks with trying to sell plant-based products, other plant-based companies could be locked out of one of the biggest markets for hamburgers and beef, according to public health advocates. The state laws also may impede newly public Beyond Meat Inc., whose products will soon be available in more than 50 store locations in a launch announced May 8 by Chanticleer Holdings Inc., which owns and runs restaurants under the American Burger Company, BGR – Burgers Grilled Right, Little Big Burger and Just Fresh brands.

Consumer demand is rising for meat alternatives. Supermarket sales of meat alternatives surged 19.2 percent to $878 million for the year ended Jan. 5, according to date from Nielsen Holdings PLC.

“About one in every three Americans eats at a fast food restaurant on any given day, and a big proportion of the ground beef we eat is eaten at these restaurants,” said Sarah Sorscher, deputy director of regulatory affairs at the Center for Science in the Public Interest.More than 5 billion pounds of beef were sold at retail in 2018, according to a Beef at Foodservice volumetric study.

If plant-based competitors are looking to seize a substantial piece of the ground beef market, “they’ve picked the right battleground,” she said.

The announcement of the Impossible Whopper itself boosted Burger King’s profile, generating more than 6 billion media impressions since the launch, said José Cil, CEO of Burger King’s parent company Restaurant Brands International, Inc. in an April 29 earnings call.

“It’s very much in line with our brand position, which is all about delivering flame-grilling excellence. This fits right in the sweet spot,” said Cil.

‘Clear in Our Messaging’

The Food and Drug Administration oversees all non-meat based products and doesn’t have federal regulations on meat alternatives. However, the Federal Food, Drug, and Cosmetic Act (Public Law 75-717), does prohibit false or misleading advertising and labeling of food products.

Missouri has a state meat labeling law, though the language only applies to a person or company selling meat and wouldn’t apply to plant-based products. State laws vary and the cases where specific plant-based language is included are the ones that could cause problems.

Burger King believes “we’re in compliance with applicable state laws” and are “clear in our messaging that this product is not made with beef or meat,” according to a Burger King spokesperson.

“It’s an issue we’re grappling with, but Burger King, we’re not too worried about it,” said Michel Simon, executive director of the Plant-Based Food Association. “It wouldn’t make sense not to explain what it is,” said Simon. “No one is getting fooled.”

State-By-State

Proposed laws introduced in more than than a dozen state legislatures, backed by groups such as the National Cattlemen’s Beef Association, would limit the definition of the word “meat.” The group’s main concern is making sure consumers are not misled by products not derived from animals being labeled as “meat,” according to NCBA.

While the language on labeling differs from state to state among those that already have laws, Mississippi’s and Wyoming’s could be the most problematic.

Under Mississippi’s law, a “plant-based or insect-based food product shall not be labeled as meat or a meat food product.” The part of the law that might bring the Impossible Whopper into question would be “meat food product,” because the legislation lacks a definition of which products it includes. For instance, the term “Whopper” could be associated with meat and could theoretically be considered a “meat food product.”

Wyoming’s law is more specific and instructs plant-based companies to label products as “vegetarian”, “veggie”, “vegan”, “plant-based” or “other similar terms indicating that the product is plant based.”

Advertising samples provided by Impossible Foods showed a label saying “100 percent Whopper, 0 percent Beef” but they did not list any of the terms specified in the Wyoming law.

The California-based Impossible Foods, whose products are sold in more than 5,000 restaurants already, said restricting what its products can be called would hurt it.

“If we aren’t able to use terms that customers understand in describing the product, then we will have an extra hurdle to overcome,” said Impossible Foods in a statement.

Stuck in the Middle

Many of the state meat labeling laws that may ensnare the Impossible Whopper have been aimed at meat grown from cell cultures, not plant-based products.

Still, plant-based companies could get caught up as an “in-between category,” said Emily Strunk, a senior associate at Washington-based Mayer Brown law firm who focuses on regulatory and consumer protection issues. “The Impossible Whopper is intended to represent meat,” said Strunk.

Companies are touting a new way to produce meat with the stem cells of animals, which will require fewer resources than the typical farm operation. Beef and poultry producers say consumers would be confused if a cell-based product has the word “meat” in its name.

Cell-based meat also has powerful backers: Conventional meatpackers such as Tyson Foods Inc. and Cargill Inc. have previously backed the lab-grown meat startup Memphis Meats Inc., which is based in San Francisco.

Tyson announced earlier this month it’s preparing to introduce its own meat-alternative products on a limited basis around the middle of the year and on a much larger scale soon after that, Chief Executive Officer Noel White told analysts on an earnings call May 6.

“It’s difficult to determine how these laws will be administered and whether products like the Impossible Burger will be affected,” Doug Farquhar, environmental health program director at the National Conference of State Legislatures, said in an interview.

Farquhar said Burger King appears “pretty transparent” that the Impossible Whopper is not made from meat. However “there are no guarantees.”

To contact the reporter on this story: Teaganne Finn in Washington at tfinn@bgov.com

To contact the editors responsible for this story: Paul Hendrie at phendrie@bgov.com; Jonathan Nicholson at jnicholson@bgov.com; Bernie Kohn at bkohn@bloomberglaw.com