Turtle Island Foods SPC v. Soman, No. 4:19-cv-00514-KGB
(E.D. Ark. Dec. 11, 2019)
Unsurprisingly, the court here enjoins provisions of
Arkansas law that tried to restrict the use of “meat” terms for meatless
alternatives. The worrying part is that the breadth of the decision throws into
doubt FDA’s general ability to set standards of identity for food products,
though there are also ways to distinguish at least some of the reasoning. The big
looming issue, as with the skim milk case relied on by the court here, is what
should happen when consumers don’t actually understand the characteristics of
the food at issue: (how) can the government protect them from mistaken beliefs
that could harm them in those circumstances?
Where we think there’s a relatively robust consumer understanding, e.g.
that almond milk is not dairy milk, then perhaps we can be less worried—though I
will note that I haven’t seen good evidence about what consumers think about
the comparability between almond and dairy milk on measures of nutrition as
opposed to taste/function in a beverage.
Anyhow, plaintiff Tofurkey uses traditional meat-based terms
like “chorizo,” “ham roast,” and “hot dogs,” alongside qualifiers like “all
vegan,” “plant based,” “vegetarian,” and “veggie.” Tofurky alleged and the
court accepted that Tofurkey’s products “comply with federal food labeling
regulations as well as numerous state and federal laws that prohibit false and
deceptive labeling and marketing for food products and consumer products more
generally,” though see below for a possible qualification.
Arkansas law relevantly provides:
A person shall not misbrand or
misrepresent an agricultural product that is edible by humans, including
without limitation, by:. . .
(2) Selling
the agricultural product under the name of another food;. . .
(5) Representing
the agricultural product as a food for which a definition and standard of
identity has been provided by regulations under § 20-56-219 or by the Federal
Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as it existed on January
1, 2019, unless:
(A) The
agricultural product conforms to the definition and standard; and
(B) The
label of the agricultural product bears the name of the food specified in the
definition and standard and includes the common names of optional ingredients
other than spices, flavoring, and coloring present in the food as regulations
require;
(6) Representing
the agricultural product as meat or a meat product when the agricultural
product is not derived from harvested livestock, poultry, or cervids [a mammal
of the deer family];. . .
(8) Representing
the agricultural product as beef or a beef product when the agricultural
product is not derived from a domesticated bovine;
(9) Representing
the agricultural product as pork or a pork product when the agricultural
product is not derived from a domesticated swine;
(10) Utilizing a term that is the same as or similar to a term that
has been used or defined historically in reference to a specific agricultural
product. . . .
[As you can see, the successful as-applied challenge to (5)
does directly implicate FDA’s power, although there is no indication in this
record that FDA considers Tofurkey to be in violation.]
The stated legislative purpose of the law was to protect
consumers from being misled or confused by false or misleading labeling of
agricultural products that are edible by humans. As applied, it barred Tofurky from using
words like “meat,” “beef,” “chorizo,” “sausage,” and “roast” to describe its
plant-based meat products, since there was no exception for plant-based meat
producers that clearly identify their products as being vegetarian, vegan, or
made from plants. Each violation was punishable
by a civil penalty of up to $1,000. Although the relevant agency didn’t intend
to begin enforcement of the subsections challenged by Tofurky until this
dispute was resolved, the parties have not entered into a non-prosecution
agreement, and the State didn’t contend that Tofurky would not face retroactive
liability. Unsurprisingly, the court found that Tofurkey had standing and that
it should not abstain.
Tofurkey brought both facial and as-applied challenges;
facial challenges are hard to win, especially since the overbreadth doctrine
doesn’t apply to commercial speech. Thus, the court confined its analysis to Tofurkey’s
as-applied challenge.
On to Central Hudson: Arkansas argued that Tofurkey’s
labels were 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.” Moreover,
Tofurky designs its food products to approximate the texture, flavor, and
appearance of meat derived from slaughtered animals, which would further the
misleadingness.
Tofurkey responded that words such as “meat,” “burger,” and
“steak” have been used for decades—and in some cases centuries—to describe
foods that are not made from slaughtered animals, and that its labels clearly
identified its products “all vegan,” “plant based,” “vegetarian,” “veggie,” and
“made with pasture raised plants” on the front of the packages. On this record, Tofurkey’s speech wasn’t
inherently misleading. “[T]he simple use of a word frequently used in relation
to animal-based meats does not make use of that word in a different context
inherently misleading,” especially given the label disclosures. For example,
the “Veggie Burger” label used “veggie” to motify “burger” and included the
words “all vegan” in the middle of the and “white quinoa” next to a picture of
the burger. Tofurky was likely to prevail on its argument that the labels’
repeated indications that its packages contain no animal-based meat dispelled
consumer confusion and rendered the speech not inherently misleading. “[T]his
is not a case of key information in minuscule type buried deep among many
ingredients.” Reasonable consumers would
not disregard all those other words, any more than they’d think that “flourless
chocolate cake contains flour, or that e-books are made out of paper.” Nor was there evidence that consumers or
potential consumers had been misled by the packaging, labeling, or marketing.
The court analogized to Ocheesee Creamery LLC v. Putnam, 851
F.3d 1228 (11th Cir. 2017), which helt that plaintiffs’ use of the term skim
milk wasn’t inherently misleading just because it conflicted with the State’s
definition of “skim milk,” according to which skim milk had to include
replenished vitamin A. While “[i]t is undoubtedly true that a state can propose
a definition for a given term …, it does not follow that once a state has done
so, any use of the term inconsistent with the state’s preferred definition is
inherently misleading.”
Because the speech wasn’t false or inherently misleading,
the court moved to the rest of Central Hudson’s test. The court assumed without deciding [!] that
the state had a substantial interest in “protect[ing] consumers from being
misled or confused by false or misleading labeling of agricultural products
that are edible by humans.” But the law
didn’t, as required, “directly and materially” advance that interest, because
Tofurkey’s speech was neither false nor misleading. And the challenged
provisions were likely “more extensive than necessary to serve the State’s
interest.” Although the state isn’t required to show that its restriction is
the least restrictive means possible, the “blanket” restriction in the Arkansas
law was “far more extensive than necessary, and Arkansas “disregard[ed] far
less restrictive and precise means” for achieving its stated purpose, such as
laws directed at prohibiting deceptive labeling and marketing of food products,
and consumer products more generally. “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.” In addition, if it was still
worried about “fake meat” in general, 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.”
Because of this analysis, the court declined to consider
whether the real purpose of the law was to benefit the meat industry against a
competitor.
So, the court held that requiring
producers to comply with FDA standards of identity is unconstitutional without
evidence of producer deceptiveness (provision (5) of the challenged law). Suppose I want to put random red dye into my
food products and list it as FD&C Red Dye No. 3: it is beyond dispute that
the average consumer has no idea what’s in No. 3. Can there be any deception given that
incomprehension? Will courts accept the idea that the government can
legitimately bootstrap an understanding into existence? (E.g., I don’t know
what’s in Red Dye No. 3, but I believe that when Producer A uses the term it
will be identical to Producer B’s use, making variant uses deceptive.)
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