When it comes to product labeling Big Meat thinks consumers have the brains of a Regulan bloodworm (yeah, a Star Trek reference). For reasons beyond comprehension, Big Meat believes Walmart shoppers are unable to distinguish the difference between meat from an animal and meat alternatives from plants.
Under Big Meat lobbying pressure, state legislatures are regulating what language can be used to identify plant-based meat alternatives by enacting “truth in labeling” laws that typically prohibit products marketed with the word “meat” if they are not derived directly from livestock, or poultry.
Getting a truth in labeling law on the books has become in vogue – the National Conference of State Legislatures reports 14 states passed a total of 17 meat labeling restriction laws in 2019 alone.
Naturally, plant-based meat alternative companies don’t think much of states cramping their style and many of these laws are being challenged on First Amendment grounds.
But mostly there’s been nothing definitive from the courts.Until now. For the first time, a judge has ruled an alternative meat labeling law unconstitutional.
Here’s the skinny. The Louisiana State Legislature passed the “Truth in Labeling of Food Products Act” in 2019. In part, the act prohibits the intentional misbranding or misrepresentation of any food product as an agricultural product through any activity including:
· Affixing a label to a food product that is false or misleading.
· Selling a food product under the name of an agricultural product.
· 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.
· Representing a food product as beef or a beef product when the food product is not derived from a domesticated bovine.
· Representing a food product as pork or a pork product when the food product is not derived from a domesticated swine.
· Representing a food product as poultry when the food product is not derived from domesticated birds.
· 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.
· Representing a cell-cultured food product as a meat product.
Enter Turtle Island Foods, the maker of Tofurky and indisputably the biggest defender of plant-based alternative First Amendment rights. Less than a week after Louisiana’s law went into effect on Oct. 1, 2020, Turtle Island Foods filed a lawsuit, Turtle Island Foods v. Strain, claiming violation of its First Amendment and, for good measure, Fourteenth Amendment rights.
Turtle Island Foods argued that the law has illegally refrained the company from using certain words and images on its labels and marketing materials. In response to the Louisiana law, it removed marketing videos from its website and social media platforms.
In other words a classic government versus private commercial First Amendment speech case.
In the landmark decision Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, the U.S. Supreme Court ruled that governments can restrict commercial speech if:
“(1) the commercial speech concerns unlawful activities or is misleading; (2) the government has a substantial interest in restricting the commercial speech; (3) the government’s restrictions directly advances the government’s stated interest; and (4) the government’s restrictions are not more extensive than necessary.”
In his ruling handed down March 28, U.S. District Court for Middle District of Louisiana Judge Brian A. Jackson applied the Central Hudson four-part test. Jackson found the speech at issue was not misleading and it was more extensive than necessary to further the government’s interest:
“Plaintiff presents compelling evidence indicating that consumers are not confused by its labeling. In response, Defendant fails to produce evidence that consumers are confused by Plaintiff’s labeling. Therefore, the Act’s limitations on Plaintiff’s commercial speech likely do not directly advance the state’s interest of avoiding consumer confusion.”
Jackson adds: “Defendant has failed to address why alternative, less restrictive means, such as a disclaimer, would not accomplish its goal of preventing consumer confusion.”
A slam dunk. Grocery shoppers are not morons. But you knew that right?
Louisiana is appealing the ruling at the Fifth Circuit U.S. Court of Appeals. How that comes out may have implications at the Food and Drug Administration. The FDA has spent the past four years (four years??) trying to write a rule on meat and dairy terms for alternative meat products.
As you might imagine the meat and dairy lobbies have a huge vested interest. Whether the FDA can stand the heat is debatable. If Turtle Island wins the day in court, maybe it will give the FDA enough backbone to create a harbor for plant based-meat labels – one that is useful to consumers and might put an end to the state paranoia at the root of goofy labeling laws. If not, Turtle Island Foods v. Strain will be quoted by a whole lot of other constitutional lawsuits.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at dave.dickey@investigatemidwest.org.
