Tuesday, October 11, 2022

Court permanently enjoins Arkansas anti "fake meat" law

Turtle Island Foods SPC v. Soman , 2022 WL 4627711, -- F. Supp. 3d --, No. 4:19-cv-00514-KGB (E.D. Ark. Sept. 30, 2022)

After previously winning a preliminary injunction, plaintiff (Tofurky) got Arkansas’s prohibition on using meat terms to describe non-meat products permanently enjoined, some entirely and some as applied to its conduct.

Tofurky uses terms like “chorizo,” “ham roast,” and “hot dogs,” alongside qualifiers like “all vegan,” “plant based,” “vegetarian,” and “veggie.” “Tofurky has never been the subject of enforcement action by any federal agency for marketing or labeling its products in a misleading manner. Tofurkey is not aware of a single consumer communication sent to Tofurky or to any government agency complaining that a consumer mistakenly believed Tofurky’s plant-based meat products were, or contained meat, from slaughtered animals.” Further, Tofurky argued that it couldn’t “accurately and effectively describe its products without comparison to the conventional meat products with flavor profiles Tofurky’s products are designed to invoke.”

But Arkansas banned selling edible agricultural products “under the name of another food”; representing it as a food for which the FDA has a definition and standard of identity unless it matched; representing it “as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids” with similar provisions specific to beef/“derived from a domesticated bovine” and pork/“derived from a domesticated swine”; or using “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.” This was touted as consumer protection legislation.

Although it seems like even the last provision could have been read to exclude Tofurkey’s conduct without much strain, the state seemed to disavow an interpretation that excluded “veggie chorizo” from counting as “representing” itself as meat, etc. Thus, Tofurkey had Article III standing (many pages’ discussion omitted) and abstension was inappropriate.

Starting with the as-applied challenges, the state 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,” and “Tofurky designs its food products to approximate the texture, flavor, and appearance of meat derived from slaughtered animals” (to distinguish it from, e.g., “almond butter”).

Tofurky 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.” Plus, its labels and marketing materials prominently identified its products as “all vegan,” “plant based,” “vegetarian,” “veggie,” or “made with pasture raised plants” on the front of its packages. As to texture/flavor/appearance, Tofurkey argued that it couldn’t “accurately and effectively describe its products without comparison to the conventional meat products with flavor profiles Tofurky’s products are designed to invoke.”

Considering the label as a whole, the court found Tofurky’s use of the terms not inherently misleading. The words that the law banned Tofurky from using “convey meaningful, helpful information to consumers about the products they are purchasing, and Tofurky’s repeated indications that the food products contained in these packages contain no animal-based meat dispel consumer confusion.” Tofurky wasn’t burying key information in miniscule type, and removing the animal-based names might be more confusing. The state hadn’t shown that reasonable consumers would disregard the other words on the label.

Although theories of potential misleadingness might justify a disclosure requirement, this was a speech ban not subject to Zauderer treatment. Nor could the state short-circuit constitutional analysis by adopting definitions of, e.g., “chorizo.” “[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.”

Thus, Central Hudson applied. While “combatting deceptive, misleading, or false advertising is a legitimate and substantial interest,” the law at issue didn’t “directly and materially” advance the state’s asserted interest in “protect[ing] consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans,” given that Tofurky’s speech was neither false nor misleading. [This analysis merges Central Hudson’s third prong with its fourth, making it into a narrow tailoring requirement. Does that matter?]

Thus, the law was “more extensive than necessary to serve the State’s interest.” In the narrow context of an as-applied constitutional challenge, the government “must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” But the state didn’t. It could instead “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.”

Tofurkey was entitled to a permanent injunction against application of the Arkansas-specific/meat-specific provisions of law to its (existing) labels.

It was also entitled to a permanent injunction against application of parts of the law that copied the FDCA to its existing labels. The FDCA, which is also therefore held unconstitutional if applied to prohibit “fake meat” labels, deems a food misbranded “[i]f it is offered for sale under the name of another food” or if it “purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations … unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and standard ….”

Noting that the feds hadn’t tried to enforce this against Tofurky, the court found that the as-applied analysis was the same for these more broadly worded provisions.

Facial challenge to the Arkansas fake meat-specific provisions: Although overbreadth analysis doesn’t generally apply to commercial speech regulation, a plaintiff whose own constitutionally protected speech is prohibited can bring a facial challenge.

Tofurky argued that “the State may not place an absolute prohibition on speech that is potentially misleading if the information may also be presented in a way that is not deceptive.” But although Tofurky’s use of the terms wasn’t inherently misleading, the court wasn’t willing to conclude that all uses of the terms wouldn’t be inherently misleading. Tofurky couldn’t rely on its own labels to establish that “no set of circumstances exists” under which the law would be valid. The court could envision plant-based products without qualifiers on their packaging identifying the products as “plant-based” or “vegan,” and those might be inherently misleading. [It follows that the state could actually punish those sellers, not just make them use disclosures in the future. Whether that’s framed as a ban on unmodified use of meat terms for plant-based meat or a disclosure requirement, that result seems correct.]

One Arkansas-specific provision was also void for vagueness. The provision at issue bars “[u]tilizing 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.” Tofurky pointed out that, while the law defined “meat” as “a portion of livestock, poultry, or cervid carcass that is edible by humans,” other sources, including the King James Bible and FDA guidance documents, use “meat” for the flesh of fruits or nuts. Since the 1930s, likewise, “burger” has been used to describe all sorts of sandwiches, including nut burgers, fish burgers, turkey burgers, and veggie burgers. This provision could cover peanut butter, oat milk, buffalo wings, and beetballs. [Ed. note: beetballs?] Thus, it was not clear to a manufacturer or distributor of ordinary intelligence what the statute prohibits, even taking the entire law as a whole as relevant context. The state didn’t explain what was meant by “same as or similar to a term that has been used or defined historically in reference to a specific agricultural product.” Thus, this provision was facially invalid.

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