Enforcement of a state agricultural law alternately described as a "truth in labeling" law and a "censorship law" was banned Wednesday by a federal judge in Little Rock.
The law, Act 501 of 2019, was originally scheduled to go into effect July 24 but hasn't been enforced as a result of a lawsuit filed July 22 claiming it is unconstitutional.
U.S. District Judge Kristine Baker heard arguments in October on a request from Turtle Island Foods, doing business as The Tofurky Co., to halt enforcement of the law. The Oregon manufacturer, backed by the American Civil Liberties Union of Arkansas, the Animal Legal Defense Fund and the Good Food Institute, called the law an effort by the state's meat producers to "limit access to healthier, more sustainable food choices."
But Attorney General Leslie Rutledge's office described Act 501 as a truth-in-labeling law designed to protect consumers from being confused by meatlike terminology on packages of plant-based or cell-based food.
Tofurky uses terms like "chorizo," "ham roast," "sausage" and "hot dogs" alongside qualifiers such as "all vegan," "plant-based" and "vegetarian" to show that the company's products can be served and eaten "just like any other meats," according to Jaime Athos, chief executive officer of the company, whose products are sold in retail and grocery stores across the country, including Arkansas. But the law makes it illegal to use the meatlike terms and imposes fines of up to $1,000 for each violation.
"Today's ruling is good news for the First Amendment and for Arkansas families who shouldn't have to contend with confusing government-mandated labeling requirements when they purchase plant-based products," said Holly Dickson, interim executive director of the ACLU of Arkansas. "We're glad the court saw this law for what it is: an unconstitutional attempt to stifle competition, suppress free speech and confuse consumers."
Rebecca Jeffrey, deputy communications director for Rutledge, said, "The Attorney General is disappointed" in the injunction and "is currently determining next steps."
Baker's ruling will remain in effect until the law's constitutionality is resolved. Baker issued the preliminary injunction on the basis of the threat of irreparable harm to Tofurky if it takes effect, the balance between that harm and any harm caused by banning the law's enforcement, the probability that Tofurky will ultimately win its case and the public interest.
Baker's 34-page order said Tofurky challenges six provisions of Act 501, codified at Arkansas Code Annotated 2-1-305. The company says those provisions "represent a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products," while failing to protect the public from misleading information and creating confusion for the purpose of impeding competition.
The Arkansas law is substantially similar to meat-labeling laws recently passed in Mississippi, Louisiana, South Dakota and other states, according to the ACLU, which notes that "a number of those laws face similar legal challenges."
To that end, ACLU attorney Brian Hauss, who argued for the injunction before Baker, said Wednesday, "We're glad the court blocked the state's blatantly unconstitutional effort to stifle competition by censoring speech. Legislatures that have passed or are considering similarly absurd laws in their states should take note of this ruling and correct course now."
According to Baker's order, "The dispute regarding Act 501 notwithstanding, Tofurky's products, including its plant-based meat 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."
She noted that Tofurky contends it cannot accurately and effectively describe its products "without comparison to the conventional meat products with flavor profiles (its) products are designed to invoke."
The challenged sections of Act 501 say, in part, that "a person shall not misbrand or misrepresent an agricultural product that is edible by humans ... by ... selling the agricultural product under the name of another food."
It outlaws representing an agricultural product as meat, beef or pork when the product isn't derived from "harvested livestock, poultry, or cervids;" "a domesticated bovine;" or "a domesticated swine."
Noting the penalties imposed by the law, Baker said, "Given the volume of Tofurky's business in Arkansas, Tofurky fears that it is exposed to ruinous civil liability under Act 501."
She said Tofurky fears that the law would leave it with only four choices: risking massive civil penalties and associated harms; creating specialized marketing and packaging practices just for Arkansas; changing its marketing and packaging practices nationwide; or refraining from marketing or selling its products in Arkansas.
She discussed the difficulties of each choice, as argued by Tofurky, such as a nationwide marketing and packaging change that would cost close to $1 million, as well as the "bad will" the law would create for the company by causing customers to be confused about what they are buying.
Baker dismissed the state's arguments that the company lacked legal standing to pursue the lawsuit and that she should defer to the state courts to interpret the law. She noted that where there is no ambiguity in a state statute, a federal court shouldn't abstain, but should decide the federal constitutional claim.
"Tofurky is likely to prevail on its arguments that its labeling is neither unlawful nor inherently misleading and that Tofurky's commercial speech warrants First Amendment protection," Baker said.
In a news release, Athos said the company is pleased that the law is blocked while the lawsuit proceeds, "so that consumers can continue to have access to familiar plant-based products in Arkansas for the foreseeable future."
Jessica Almy, director of policy for The Good Food Institute, added, "This is a victory for free speech, free markets and consumer choice. ... The court has put a stop to the significant government overreach and Arkansas consumers are now free to have all the choices available to consumers in other states."
Stephen Wells, executive director of the Animal Legal Defense Fund, called the ruling "a victory for consumers and animals alike," adding, "More and more consumers want plant-based foods that don't require animal cruelty to be produced."
Metro on 12/12/2019