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In 2018, Missouri became the first state to pass a law restricting the labeling of plant-based products as meat. Other states such as Arkansas, Mississippi, South Dakota, Wyoming, and Louisiana followed suit by passing similar laws. In general the need cited for the passage of the meat labeling laws is consumer confusion. In other words, the laws are necessary to prevent consumers from unwittingly buying plant-based products labelled as meat.
This post will focus on two of the recent federal cases filed by plant-based food manufacturer Turtle Island Foods d/b/a The Tofurky Company (Tofurky) and the Good Food Institute challenging the Louisiana and Missouri laws. The basis of the claims is that by restricting what type of products can be labelled as meat, parties are deprived of their First Amendment rights.
Louisiana Labeling Law Challenge
The Louisiana “Truth in Labeling of Food Products Act” went into effect on October 1, 2020 and days later Tofurky filed a lawsuit in the U.S. District Court for the Middle District of Louisiana challenging the law on First Amendment grounds. The First Amendment to the restricts federal and state governments from depriving citizens of their freedom of speech. The Louisiana Act includes "representing a cell cultured food product as a meat product" and "presenting a food. product as meat or a meat product when the food product is not derived from a harvested beef, port, poultry, alligator, farm-raised deer, turtle, domestic rabbit, crawfish, or shrimp carcass" as intentional misbranding or misrepresentation of a food product as an agricultural product.
Although Plaintiffs were not cited for violating the Act or threatened with enforcement, the Supreme Court has recognized that "chilled" speech or self-censorship, such as changing marketing practices in response to the law, is an injury sufficient to allow a party to challenge a law pre-enforcement based on a violation of the First Amendment's Free Speech Clause. See Barilla v. City of Hous., Tex., 504 U.S. 555, 560-61 (1992).
Governments, however, can restrict speech in certain circumstances, such as commercial speech that is misleading. To decide if the Louisiana law was unconstitutional the court applied a four part test, asking whether: (1) the commercial speech concerns unlawful activities or is misleading; (2) the government has a substantial interest in restricting the commercial speech; (3) the government’s restrictions directly advances the government’s stated interest; and (4) the government’s restrictions are not more extensive than necessary. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).
Applying the Central Hudson test to the Louisiana law, the court found the law was an impermissible restriction on speech because the speech at issue, the labeling on plant-based meat products, is not misleading and failed the third and fourth parts of the Central Hudson test. The restrictions established in the law did not advance the government's stated interest because the state provided no proof of the claimed consumer confusion caused by plant-based meat products. Additionally, the court held that the law is more extensive than necessary to further the government’s interest, noting that the Louisiana government could have achieved its stated interest through less restrictive means, such as requiring food manufacturers to include disclaimers on alternative protein product labels. As a result of the decision, Louisiana is prohibited from enforcing the provisions of the Act.
To read more about this decision, check out this article from the National Ag Law Center. This case is subject to appeal.
Missouri Labeling Law Challenge
The Missouri labeling law criminalizes “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Two days after the Missouri labeling law became effective, Tofurky and the Good Food Institute, brought a case in the U.S. District Court for the Western District of Missouri challenging the constitutionality of the law (§ 265.494(7), referred to herein as the Missouri labeling law).
According to Tofurky and the Good Food Institute, the marketing and labeling of plant-based meat substitute products requires label comparisons to meat products to be effective. For example, plant-based products using references to traditional meat products, such as “slow-roasted chick’n,” “vegetarian ham roast" and "veggie bacon strips". The plaintiffs argued that the Missouri labeling law, by disallowing them from using references to meat products, deprived them of their First Amendment right of free speech. The relief sought by the plaintiffs was a preliminary injunction to prevent the state from enforcing the Missouri labeling law.
In order for a party to get a preliminary injunction (a temporary form of relief that prevents a party from taking an action) a he/she has to prove that the claim has a good chance of being granted. This legal standard is referred to as a substantial likelihood of success on the merits of the claim. In this case, the District Court denied the preliminary injunction and found the plaintiffs had not met the required legal threshold of proving a substantial likelihood of success on the merits of their First Amendment claim. Specifically, the District Court held that the Missouri labeling law only prohibited misleading speech and not the commercial speech utilized by the plaintiffs on their products. Additionally, the District Court cited a state guidance document that stated companies are only in violation of the statute if their marketing and labeling do not include “appropriate qualifiers,” such as “plant-based,” “veggie,” “lab-grown,” or “lab-created.”
On March 29, 2021 the Eighth Circuit Court of Appeals affirmed the decision. Although the Eighth Circuit Court of Appeals affirmed the denial of the preliminary injunction, the case is scheduled to move to a trial on the merits.
The ALEI legal specialists will keep an eye on these cases and will update this blog with future updates.