A federal judge on Tuesday roasted Arkansas’ law banning makers of meatless meat products from using words such as “burger,” “sausage,” “roast,” and “meat” in their labeling. The law also established fines of $1,000 for each individual label in violation.
Known as Act 501, the law passed state lawmakers in March but has yet to be enforced.
If it had, meatless-meat makers, such as Tofurky, would be forced to stop selling their products in the state, face a ruinous amount of fines, or change their labeling of meatless burgers and sausages to unappetizing and vague descriptors, such as “savory plant-based protein” and “veggie tubes.”
The American Civil Liberties Union (ACLU), The Good Food Institute, and Animal Legal Defense Fund challenged Act 501 on behalf of Tofurky in July. Together, the groups argued that the law amounted to a ham-fisted attempt by meat-backed lawmakers to protect the profits of the dairy and meat industry and stifle popular meatless competition.
On Tuesday, the group earned a first win in the case.
Judge Kristine Baker, of the US District Court for the Eastern District of Arkansas, granted a preliminary injunction that prevents the state from enforcing the law while the legal case is ongoing. In her order, Judge Baker made clear that the law appears to violate the Free Speech Clause of the First Amendment—as Tofurky argued. She determined that the state will likely lose the case.
On the butcher block
Arkansas argued in the case that the purpose of the law is to protect consumers from being misled or confused by false or misleading labeling on meatless products that use meat-associated terms.
“The State argues that Tofurky’s labels for its plant-based products are inherently misleading because they use the names and descriptors of traditional meat items but do not actually include the product they invoke, including terms like ‘chorizo,’ ‘hot dogs,’ ‘sausage,’ and ‘ham roast,'” Judge Baker noted. Such misleading or false labels would not be protected commercial speech under the First Amendment, the state claimed.
But Judge Baker essentially called that argument bologna.
“The State appears to believe that the simple use of the word ‘burger,’ ‘ham,’ or ‘sausage’ leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label,” Judge Baker wrote in her order. She noted that Tofurky product labels contained many terms, qualifiers, and other clues that the products are not, in fact, animal products.
She went on to cite a ruling in a similar case that determined that “Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”
“That assumption is unwarranted,” she went on. “The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products.” Moreover, she adds, there’s no evidence that any consumer was actually confused as to whether Tofurky’s products contain animal-based meat.
“As a result, Tofurky is likely to prevail on its arguments that its labeling is neither unlawful nor inherently misleading and that Tofurky’s commercial speech warrants First Amendment protection,” she concluded.
In a statement, Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, who argued the case, said, “We’re glad the court blocked the state’s blatantly unconstitutional effort to stifle competition by censoring speech. Legislatures that have passed or are considering similarly absurd laws in their states should take note of this ruling and correct course now.”
Jaime Athos, CEO of Tofurky, said in an emailed comment: “I am thrilled by the Court’s ruling today, but not particularly surprised. The actions of the Arkansas state legislature were a betrayal of their duty to their constituents and a blatant perversion of the purpose of government. Unfortunately, it is a little early to break out the champagne because this injunction currently only protects Tofurky in Arkansas, and there are many other plant-based companies that are still at risk there, and many other states have passed similarly unconstitutional legislation.”
Meat and dairy industry groups have been increasingly working to try to limit the use of terms like “milk” and “meat” in other states and contexts as meatless and diary-free products continue to grow in popularity. Missouri, Mississippi, Louisiana, and South Dakota have similar anti-veggie-meat labeling laws. In Wisconsin, lawmakers have considered banning non-dairy products from using the word “milk,” such as beverages labeled almond milk.
The latter issue led former FDA commissioner Scott Gottlieb to quip last year that “You know, an almond doesn’t lactate.” He said that the Food and Drug Administration is working on a guidance for the use of the term.