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. identicon
    Anon, 27 Dec 2019 @ 10:12am

    Fake Meat

    If you visit Egypt, or the rest of the Middle East, bacon is "beef bacon"; which is pretty much just as tasty. But... it's meat. Bacon is meat.

    As for costume meat - why bother? If you are not eating cows or pigs or chickens or chicken abortions, or stuff squeezed out of cows, why pretend you are?

    As for meat itself - humans evolved to eat meat. We honed our bipedal skills to harry animals on the savannahs of Africa until they dropped from exhaustion, while we were able to run marathon distances without problem. Our big brains need meat. The dense package of protein from successful hunt was far more nutritious and more easily obtained than picking wild beans and peas one pod at a time. Our brains are the biggest consumers of nutrients, using about 20% of our food intake.

    it is possible now, finally with highly mechanized farming and millennia of selective plant breeding, to consume non-meat meals that can come close to the quality of meat-based meals. Is it really necessary? Or are the health problems associated with red meat consumption simply the same problem of overindulgence (in plant foods) that has given us the obesity epidemic in the first place?

    the simple rule should be equally simple - if it explicitly suggests a meat product through habitual historical use, don't put it in the prominent name of the product. "burger" can be anything. "Hamburger" implies meat - beef. Hot dogs have pretty much always been primarily meat. Tofurkey - as long as nobody plays font games with the "of" in the packaging, is NOT and never has been meat. Quiche means something made of meat. Ice cream indicates a certain level of butter fat (cream). "Egg" means something that came out of a bird's butt. "Almond milk" or "Tofu Ice Cream" may not confuse the sophisticated city slicker, but food packaging should not assume everyone is a sophisticated possibly literate urban millennial, especially if the pictures on the packaging seem misleading.

    But I will agree, a law written to basically exclude any product, except on health grounds, is going too far. There needs to be a proper term.

    And in all this - we haven't even considered "lab-grown" (Vat-grown?) meat substitute, where something akin to real meat is grown without the benefit of the entire animal. Is it meat? Is it "cultured cells"? Is it still "red meat" if there's no blood? Can we call it Soylent Green if nobody was killed?

    Purina People Chow is looking like the appropriate packaging option for everything.

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