fake meat law reinstated on appeal: intentionally misleading commercial speech gets no protection

Turtle Island Foods, S.P.C. v. Strain, No. 22-30236 (5^th Cir. Apr. 12, 2023)

Reversing the district court, the court of appeals found that Tofurkey’s facial challenge to a Louisiana anti-fake meat law failed because the law plausibly could be read only to cover intentional deception.

Louisiana’s 2019 Truth in Labeling of Food Products Act bars, among other things, the intentional “misbrand[ing] or misrepresent[ing of] any food product as an agricultural product” through several different labeling practices. Those practices include “[r]epresenting a food product as meat or a meat product when the food product is not derived” from various animals.

Tofurkey’s products include plant-based “chick’n,” deli slices, burgers, sausages, tempeh, and roasts. Each of its labels, while employing meat-esque words like “sausage” or “burger,” prominently indicates that the product is “plant-based.”

representative packages

Tofurkey had Article III standing: it intended to engage in conduct arguably affected by a constitutional interest. “Tofurky’s labels and marketing— which no one contends are misleading or involve illegal activity—are just the kind of commercial activity the First Amendment protects.” And its intended actions were arguably proscribed by the law given its dictate that “[n]o person shall intentionally misbrand or misrepresent any food product as an agricultural product through any activity including:

[ . . . ]

(2) Selling a food product under the name of an agricultural product.

[ . . . ]

(4) Representing a food product as meat or a meat product when the food product is not derived from a harvested beef, pork, poultry, alligator, farm-raised deer, turtle, domestic rabbit, crawfish, or shrimp carcass. [similar for beef, pork, and poultry]

[ . . . ]

(9)       Utilizing a term that is the same as or deceptively similar to a term that has been used or defined historically in reference to a specific agricultural product.

The statute defines “misbrand” as “intentionally identify[ing] or label[ing] a food product in a false or misleading way.” To “misrepresent” also requires intention.

Louisiana argued that Tofurkey lacked standing because it didn’t intend to mislead or to break the law. But “intent” can mean different things, including intentionally making a statement that turns out to be misleading. Thus, the law was arguably broad enough to cover Tofurkey’s conduct. There was no explicit safe harbor for “meat-like, plant-based products as found in similar statutes in other states. See, e.g., Okla. Stat. tit. 2 § 5-107 (‘[P]roduct packaging for plant-based items shall not be considered in violation of [this statute] so long as the packaging displays that the product is derived from plant-based sources.’).”

And Tofurky faced a substantial (or credible) threat of enforcement. In a pre-enforcement challenge “to recently enacted (or, at least, non-moribund) statutes that facially restrict expressive activity by the class to which the plaintiff belongs, [we] will assume a credible threat of prosecution in the absence of compelling contrary evidence.” While Louisiana conceded that Tofurky’s nine demonstrative labels do not violate the Act, it declined to make any “representations as to whether any other label of Tofurky would be violative of the provisions of the Act.” And nothing bound the state from changing its mind and deciding Tofurky’s labels do violate the statute.

Merits: This was a facial challenge, which is a big deal. In the commercial speech context, “[t]o succeed in a typical facial attack, [Tofurky] would have to establish ‘that no set of circumstances exists under which [the Act] would be valid,’ or that the statute lacks any ‘plainly legitimate sweep.’”

Here, the law covered only speech that was completely unprotected: actually misleading commercial speech. Courts are required “to accept a narrowing construction of a state law in order to preserve its constitutionality.” The state’s preferred interpretation was that the law prohibits a company from intentionally misleading a consumer by claiming a product is made from beef, pork, poultry, crawfish, shrimp, meat, sugar, or rice when it is not. These would be “actually misleading representations” and thus not within the coverage of the First Amendment. The district court erred by applying Central Hudson to its reading of the statute, when it should have accepted this narrowing construction.