Nonprofit advocacy groups that are challenging an Arkansas labeling law that imposes fines on meatless products whose packages use meaty terminology asked a federal judge Wednesday to block the law's enforcement.
"The question in this case is whether the government can prohibit companies from using terms like 'veggie burger' or 'tofu hot dog' to describe their products," said a court brief filed in support of the request for a preliminary injunction.
It continues: "The law at issue, Arkansas Act 501 [of 2019], prohibits companies from using words like 'meat,' 'burger,' 'sausage,' and 'deli slice' to describe food products that are not made from slaughtered animals, even if the companies clearly and accurately inform consumers about the nature of their products. The law's stated purpose is to prevent consumer confusion, but there is no evidence in the legislative record that consumers are confused about whether a veggie burger comes from a cow."
On July 22, two days before the new law took effect, a lawsuit backed by the American Civil Liberties Union, Animal Legal Defense Fund, Good Food Institute and ACLU of Arkansas filed a lawsuit on behalf of Turtle Island Foods SPC, doing business as Tofurky, an Oregon manufacturer that sells its plant-based products in Arkansas.
Plant-based meats are typically made from soy, tempeh, wheat, jackfruit, textured vegetable protein or other vegan ingredients, according to a declaration filed Wednesday by Jaime Athos, the president and chief executive officer of Tofurky.
Athos said that in its "plant-based meats" sold in Arkansas and across the country, Tofurky uses terms like chorizo, ham roast and hot dogs alongside qualifers like "all vegan," "plant based," "vegetarian" and "veggie," in an effort "to show that our products are plant-based meats that can be served and consumed just like any other meats."
It notes that the company distinguishes its plant-based products from animal products through marketing and packaging, and "does not want to deceive consumers into believing our plant-based meats are made from animals." In fact, it says, the absence of animal ingredients is the company's selling point.
Federal court records indicate that Nikhil Soman, the director of the Arkansas Bureau of Standards and the sole named defendant, was served with the lawsuit last week. An answer filed Monday on his behalf by the Arkansas attorney general's office denies that Act 501, also known as Arkansas Code 2-1-305, is unconstitutional, and asserts that the purpose of the law is to prohibit "the misbranding or misrepresentation of agricultural products."
The law provides for a fine of up to $1,000 for each violation.
The request for a preliminary injunction, which would halt enforcement of the law until U.S. District Judge Kristine Baker can determine its constitutionality, asserts that according to the legislative history behind the act, "the law's true purpose is to benefit the meat industry by censoring the competition."
The filing states that Tofurky's products already comply with federal food labeling regulations and numerous state and federal consumer protection laws that prohibit the deceptive labeling and marketing of food products.
"Now, however, Tofurky must either completely overhaul its labeling and marketing practices to comply with the Act's restrictions on truthful and non-misleading commercial speech, or face the threat of ruinous civil penalties," the Wednesday filing complains, adding, "Tofurky seeks a preliminary injunction to prevent irreparable harm to its constitutional rights."
The lawsuit claims that the law unconstitutionally restricts Tofurky's truthful commercial speech in violation of the First Amendment and that its prohibitions on speech are unconstitutionally vague.
The filing argues that "the state cannot plausibly maintain that any use of words like 'meat,' 'burger,' or 'steak' on plant-based food labels is inherently misleading. For decades -- and in some cases centuries -- these words have been used to describe foods that are not made from slaughtered animals, such as coconut meat, veggie burgers and beefsteak tomatoes."
The company argues that to defend the law, the state must demonstrate that Act 501 advances a "substantial government interest" and is no more restrictive than necessary to sustain that interest.
The Arkansas law is similar to other "truth in labeling" laws recently passed in Missouri, Mississippi, Louisiana, South Dakota and other states.
Metro on 08/16/2019