The Animal Legal Defense Fund filed a complaint this month against an Oklahoma plant-based labeling law on behalf of Tofurky and the Plant Based Foods Association.
It’s not the first time Tofurky and the Fund have teamed up to challenge plant-based labeling legislation: In the last couple of years, they’ve also filed suits in Louisiana and Arkansas. But there’s something different about the Oklahoma law—and that difference could make it trickier for plant-based producers to challenge.
Starting in 2018, a handful of U.S. states passed laws that restrict plant-based producers from using certain terms on their product labels. Missouri, the first state to pass such a law, attached fines and potential jail sentences to the use of the word “meat” on non-conventional product labels.
Laws like this have a chilling effect on the plant-based industry, Tofurky’s president and CEO Jaime Athos told The Spoon in a recent Zoom interview. “The specters of potential lawsuits and litigation—especially when you look at what the damages could amount to—can really influence people’s decision-making,” he said.
The laws only apply in individual states, and the inconsistencies in labeling requirements from one state to the next can make interstate commerce for plant-based products unfeasible. It would be prohibitively expensive for many smaller companies to change their labels nationwide, and impossible or impractical to develop separate labels for separate states.
On paper, the rationale behind the laws has to do with something called consumer confusion: The idea that if plant-based producers are allowed to use terms like “meat” and burger,” unwitting consumers will be tricked into buying their products.
But Athos pointed out that plant-based meat products like Tofurky’s have been around for decades. People today are familiar with the use of terms like “veggie burger” to describe plant-based products, he said—and those terms can actually help consumers to understand how to use a new product.
As one of the older players in the plant-based space, Tofurky has stepped up to pursue multiple challenges against different states’ labeling laws. “I think a lot of the confidence to take the fight on comes from being in the business for a long time,” Athos said. “We can see the absurdity of being told that we have to change the names of our products, which people have eaten millions and millions of iterations of without any confusion or complaint for decades now. I think it does put us in a different frame of mind than a newer company would have.”
Tofurky and other groups have challenged speech bans under the First Amendment, arguing that they unfairly prohibit truthful commercial speech. And because the U.S. places a strong value on free speech, it takes a lot to defend a speech restriction, according to Amanda Howell, who is a senior staff attorney at the Animal Legal Defense Fund.
“If the law is a complete ban on speech, the defendants have to show that that law is serving a substantial government interest,” Howell said—and that there’s no alternative to banning speech that could also serve that government interest.
Tofurky and the Animal Legal Defense Fund have had some success in challenging labeling laws under the First Amendment. Last year, a federal court granted an injunction to Tofurky in an Arkansas case, halting the enforcement of that state’s labeling law. “The court said we were likely to win with a First Amendment challenge, because the law is unconstitutionally restrictive,” Howell said.
Oklahoma’s Meat Consumer Protection Act was passed last year to fanfare from the state’s cattlemen’s association, which described the law as one of its “lead priorities” in a press release. It’s safe to say that industry interests influenced the law: One of the legislators who introduced it has won the Oklahoma Cattlemen’s Association’s highest award.
None of the Oklahoma state legislators who sponsored the law responded to The Spoon’s requests for comment.
The Meat Consumer Protection Act doesn’t ban the use of certain words outright. Instead, it requires plant-based meat and dairy companies to disclose the vegan or vegetarian nature of their products on their product labels. It also mandates that those disclosure statements be as large and prominent as the names of the products.
To challenge this kind of law under the First Amendment, it would be up to the plaintiff to prove that the legislation isn’t serving a reasonable government interest. Plant-based producer Upton’s Naturals and the Plant Based Foods Association have already tried to challenge the law on First Amendment grounds, but were denied an injunction last year.
Now Tofurky and the Animal Legal Defense Fund have taken over the suit. They’re taking a different approach, arguing that the law is unconstitutional for three key reasons: First, there are already federal laws concerning food product labels, which should take precedence over the state law. Second, the language of the law is vague, which could mean that it gets enforced in an arbitrary, discriminatory way. And third, the law puts a burden on interstate commerce by creating a patchwork of different state laws.
Though Howell was confident about the Fund’s arguments in the case, she expressed concern that the Oklahoma law might set a new precedent for other states. “Legislators may see that these bans on speech are uphill battles, and stop pursuing them because of the burden to show a government interest,” she said. And if that happens, “the next wave of these laws might be disclosure laws like Oklahoma’s, which would create a patchwork.”
While Tofurky and the Plant Based Foods Association pursue the legal challenge, the Association is also working on mounting collective action to discourage legislators from supporting labeling laws in the first place.
The Oklahoma case will likely serve as a signal to other state legislatures. We may see more states pick up disclosure requirements like Oklahoma’s, hoping to discourage challenges. But success for Tofurky could send a message that it just isn’t worth it for states to spend money defending plant-based labeling laws.
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