Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent "customer confusion" is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] "Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans" law.

The law, written at the behest of meat and dairy lobbyists, claims customers are "confused" by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase "cauliflower rice." Why? Because Arkansas is home to the nation's largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don't contain meat.

That law is now on death's door, having been savaged by a federal judge calling bullshit on the state's willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there's no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky's use of words like "sausage," "kielbasa," "burger," and "ham" confuse consumers despite Tofurky also using words like "white quinoa," "all vegan," "plant-based," and a big "V" to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

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.

[...]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state's attempt to carve out exceptions to the First Amendment on behalf of favored industries.

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.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I'm writing it that way because that's the only way this is going to turn out. The state doesn't have a compelling argument up its sleeve that's going to reverse what's seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they're going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don't care who's donating to whose re-election campaign.

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Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods


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  1. icon
    James Burkhardt (profile), 27 Dec 2019 @ 8:30am

    Re: Yes, but...

    You miss any of the details which are in place.

    As far as champagne, the US does not protect that Term. That is why wineries in the santa rosa and napa regions can sell their sparkling wines as champagne. The EU regulates the term champagne as region specific, but the US does not regulate those terms.

    I have never seen 'Ice Milk', but I imagine it is similar to the 'frozen dairy dessert' that is bryers. Bryers is falling afoul of Milk fat content requirements, but also other requirments such as not being more than 50% air by volume. I would contend that if there was a good modifier to use that wouldn't give away the game (such as mostly air trapped in frozen milk ala Krustyburger), they would likely keep the ice cream designation on their packaging. I see non-dairy ice cream in my local store all the time without issue. I think the issue in the US is Bryers doesn't want to admit those faults.

    Going through all of your examples, I found this one interesting:

    bacon is meat

    Because bacon is salt cured pork, typically from the pork belly or the back cuts. But you couldn't say bacon is pork, because Turkey bacon is widely accepted as a low sodium, healthier alternative. A consumer might easily not read the packaging, as you suggest, and turkey bacon does not match bacon in smell or taste or texture. So why suggest it is by labeling it bacon and making it look like bacon?

    And this is where your being contrary kinda gets weird.. The article notes that the court highlighted your very suggestions - if we see serious confusion all you need do is improve the packaging to emphasize the product is based on non-meat proteins. So your contrariness is odd, as the article agrees with your proposal to use modification language, but the earlier paragraph really suggests that such language ("Some people grab stuff off the shelf without examining the label, based on the picture on the container") is insufficient.

    And your final paragraph highlights your real reason for being contrary, you absolutely don't understand what call I the 'costume meat' market. There are several large portions of the market for these products that are not driven by a moral objection to consuming animal products. A number of health problems can be resolved by reducing red meat intake, and for those who like red meat, alternatives that satisfy the desire for red meat foods they are used to are beneficial. Turkey bacon and turkey burgers exist for that very reason. I know a few people who can't eat red meat after abstaining for a time, their bodies don't digest those proteins well. But eating is social as much as a required action for life. Normalizing non-animal-based options that aren't shit that everyone is okay with eating is valuable to them. Then there is the environmental factor. Plant based options that are indistinguishable from the animal-based products have a much lower environmental footprint. In all these cases, while there are those vegetarians who push to abolish animal based food products, overall these products provide options to consumers for whom animal based proteins create challenges and create a market that if widely adopted could be sustainable and improve the environment without outlawing animal-based proteins.


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