If You Don’t Have a Cow (or Chicken or Pig), You Can’t Call It Meat: Weaponizing the Dormant Commerce Clause to Strike Down Anti-Animal- Welfare Legislation

Abstract

Industrial meat producers and proponents of plant-based diets are locked in legislative and litigation battles. On the legislative battlefront, meat producers are attempting to prohibit vegetarian and vegan food manufacturers from calling their products “meat,” “burgers,” “pork,” or other similar “meaty” descriptions. At the same time, animal-welfare advocates are urging states to pass laws to better the lives of animals in various ways, such as requiring meat producers to provide farm animals more space or other enhanced conditions. On the litigation side, both the meat producers and the plant-based companies are attempting to deploy the Dormant Commerce Clause (“DCC”) to strike down the laws inimical to their industries; but each side also ardently argues that the DCC permits the laws that benefit its industry. This Article describes the legislative battle and provides a theoretical framework for understanding how the litigation battle should be resolved under the DCC.