The Nuances of 'Tag-Gag' Laws

Abstract

This Essay addresses what I have elsewhere called “Tag-Gag” Laws—laws that regulate and restrict how companies can label and advertise plant-based meat products. Plant-based meat is food made entirely from plants that replicates the taste and texture of animal meat. As plant-based meat sales have grown exponentially in recent years, increasing numbers of states have passed Tag-Gag laws; companies selling plant-based meat, in turn, have challenged these laws in court. When covering these lawsuits, the media often (and understandably) lumps them altogether. If a plant-based company wins a preliminary injunction against a state law, it is viewed as a victory for plant-based foods in the labeling wars; if a state survives a preliminary injunction, the media reports the opposite. But not all Tag-Gag laws are created equal, and this Essay draws attention to their important differences. It identifies and categorizes three Tag-Gag variants and discusses how each variant has different legal ramifications. It also proposes specific approaches that companies can follow when challenging the different categories of Tag-Gag laws.

Keywords: Plant-Based, Food, Animal Law, First Amendment, Labeling, Advertising, Meat, Agriculture

JEL Classification: K10