Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent "customer confusion" is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] "Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans" law.

The law, written at the behest of meat and dairy lobbyists, claims customers are "confused" by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase "cauliflower rice." Why? Because Arkansas is home to the nation's largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don't contain meat.

That law is now on death's door, having been savaged by a federal judge calling bullshit on the state's willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there's no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky's use of words like "sausage," "kielbasa," "burger," and "ham" confuse consumers despite Tofurky also using words like "white quinoa," "all vegan," "plant-based," and a big "V" to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[...]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state's attempt to carve out exceptions to the First Amendment on behalf of favored industries.

Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I'm writing it that way because that's the only way this is going to turn out. The state doesn't have a compelling argument up its sleeve that's going to reverse what's seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they're going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don't care who's donating to whose re-election campaign.

Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods


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  • identicon
    Anonymous Coward, 26 Dec 2019 @ 6:49pm

    If we are talking about deceptive labeling, then I hope they do something about McDonald's or KFC.

    What they sell is anything except meat, or chicken.

    Damn, I even doubt that it came from a living being.

    reply to this | link to this | view in chronology ]

    • identicon
      Randy, 27 Dec 2019 @ 4:15am

      Re:

      Speaking of deceptive labeling, I have yet to see these buffalo that the wings come from!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Dec 2019 @ 6:34am

      Re:

      I can't speak for KFC, but believe it or not McDonald's meat patties really are meat. They are, in fact, nothing but ground beef. No filler, no substitutes (at least in North America).

      McDonald's spent a great deal of time perfecting exactly how to minimize the cooking time of beef burger patties so that it was cooked all the way through without being overcooked on the outside. Additives (even a simple binding agent like egg) would affect the result complicating the cooking process.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Dec 2019 @ 6:56pm

    Plant based foods are not more confusing than meat

    Burger implies ground beef. Anyone confused by a veggie burger would also probably be confused by a turkey burger or a buffalo burger. The later two are probably more confusing because people might think the name refers to where it's from. (The country of Turkey, or Buffalo, New York)

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 26 Dec 2019 @ 9:39pm

      Re: Plant based foods are not more confusing than meat

      Heck, “Buffalo burger” could be thought of as a regular burger with buffalo sauce.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2019 @ 11:01pm

      Re: Plant based foods are not more confusing than meat

      I wanted a beef burger but bought chicken burgers....
      I wanted pork sausages but bought beef or chicken sausage...

      said no consumer ever...

      And now they think consumers are going to be confused because there's now a vegan option? facepalms

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 27 Dec 2019 @ 5:25am

        Re: Re: Plant based foods are not more confusing than meat

        I actually just accidentally bought vegan re-fried beans.

        I noticed my mistake when I was opening the can and it clearly stated "vegan" on it.
        They tasted fine, by the way.

        It really got me thinking what the heck was in my normal re-fried beans that isn't vegan though.

        reply to this | link to this | view in chronology ]

    • identicon
      David, 27 Dec 2019 @ 10:15am

      Re: Plant based foods are not more confusing than meat

      Well, this is to avoid confusion. You can still call your product a "veggie burger" as long as it contains beef.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Dec 2019 @ 7:50pm

    If legislators are going to close their minds and open their ears when lobbying dollars come calling, they're going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars.

    Hmm, in order for them to 'make a few extra dollars' that would require vegetarians and vegans to buy meat/dairy products when they can not find the substitutes.

    However fruit has not (yet) be outlawed. There are also lots of other non mean/non-dairy foods besides the meat/dairy substitutes that were being targeted here. I highly doubt a possible reduction/removal of one set of food choices would cause anyone to rethink their entire dietary constraints (for many people those come from religious beliefs and or health concerns).

    reply to this | link to this | view in chronology ]

    • icon
      urza9814 (profile), 31 Dec 2019 @ 7:43am

      Re:

      It's not about converting vegetarians and vegans back. It's about preventing future conversions. It's about people like me. I know vegetarian eating is better in terms of health and the environment...but I also love a good cheeseburger. If you can gimme something that looks, feels, and tastes like a cheeseburger but is made without meat -- and they're getting pretty close to being able to do that -- I would buy that instead of real meat every time I had the choice. Even if it cost a bit more (within reason...I'm not paying fifty bucks for every burger).

      Humans are creatures of habit. It's far easier to change your actions if you can keep the habits surrounding them. It's hard to figure out a whole new set of vegan meals; it's very easy to just replace one box of meat with another box of "meat".

      reply to this | link to this | view in chronology ]

  • icon
    freakanatcha (profile), 26 Dec 2019 @ 8:25pm

    deceptive labeling: there is no buffalo in buffalo wings.

    The irony here is that the consumer appeal of the alternative products is that THEY DO NOT CONTAIN MEAT. The last thing the vegetable-based products want is to make consumers believe is that they are buying a meat product.

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 27 Dec 2019 @ 5:08am

      Re: deceptive labeling: there is no buffalo in buffalo wings.

      I'm waiting to see the reaction when the meat industry comes out with meat substitutes for veggies. "Ham Yams" has a nice ring to it.

      reply to this | link to this | view in chronology ]

  • icon
    ysth (profile), 26 Dec 2019 @ 8:39pm

    no effect?

    Because it went this route, the new law may as well have never been written, massaged, and put into effect.
    Does that mean the legislators will be returning their industry campaign contributions?

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 26 Dec 2019 @ 8:50pm

    It's really too bad

    I was looking forward to all of the non-meat names. You know, like "Protein Puck"...

    reply to this | link to this | view in chronology ]

  • identicon
    Lorgskyegon, 26 Dec 2019 @ 9:10pm

    I showed up to the case argument in a tank top and nylon shorts.

    But nowhere in this court was there a basketball hoop. Who can I sue?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Dec 2019 @ 9:54pm

    I was expecting that to get thrown out as soon as I read about it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 4:38am

    If legislators are going to close their minds and open their ears

    Their ears were not what they were opening.... wallets, that is what they were opening.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 27 Dec 2019 @ 4:47am

    the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don't contain meat

    I wonder how the law would deal with hamburgers since they don't contain ham.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 27 Dec 2019 @ 6:15am

    Yes, but...

    I'm going to take a contrary view. We don't allow "New York Chanpagne" or similar labelling. Some words are reserved. Some sugar-milk treats are "ice milk" because they don't contain cream. "Tofu Ice Cream" is a non-sequitur because it implies there is cream in a product that does not contain cream. Cream means something specific (Unless it's "Cream of..." ) Peanut butter need to contain peanuts. Corn meal needs to contain corn. Fruit juice needs to contain actual juice of the fruit, not flavouring and sugar water. Burger I don't understand as a reserved word, since we've had "Veggie burger" since time immemorial (the sixties?), it just means "all ground up". But bacon is meat, ham is meat from pigs, meat is animal products. Some people grab stuff off the shelf without examining the label, based on the picture on the container.

    I think the law is a problem in going so far that it attempts to exclude, rather than correctly label. Disallowing negatives - "non-dairy" treat - simply confuses matters - it's an attempt to exclude a product by giving it no way to describe itself.

    But it points out a basic hypocrisy if left to stand - if the point of a product is that it contains no meat - and we all know what "meat" means - then why hint that it looks, smells, and tastes like a meat? Isn't the whole point of vegetarianism/vegan is that you don't want this? Or is it like the abortion debate, imposing a point of view "we don't eat meat so you meat eaters should not do so either".

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 27 Dec 2019 @ 8:30am

      Re: Yes, but...

      You miss any of the details which are in place.

      As far as champagne, the US does not protect that Term. That is why wineries in the santa rosa and napa regions can sell their sparkling wines as champagne. The EU regulates the term champagne as region specific, but the US does not regulate those terms.

      I have never seen 'Ice Milk', but I imagine it is similar to the 'frozen dairy dessert' that is bryers. Bryers is falling afoul of Milk fat content requirements, but also other requirments such as not being more than 50% air by volume. I would contend that if there was a good modifier to use that wouldn't give away the game (such as mostly air trapped in frozen milk ala Krustyburger), they would likely keep the ice cream designation on their packaging. I see non-dairy ice cream in my local store all the time without issue. I think the issue in the US is Bryers doesn't want to admit those faults.

      Going through all of your examples, I found this one interesting:

      bacon is meat

      Because bacon is salt cured pork, typically from the pork belly or the back cuts. But you couldn't say bacon is pork, because Turkey bacon is widely accepted as a low sodium, healthier alternative. A consumer might easily not read the packaging, as you suggest, and turkey bacon does not match bacon in smell or taste or texture. So why suggest it is by labeling it bacon and making it look like bacon?

      And this is where your being contrary kinda gets weird.. The article notes that the court highlighted your very suggestions - if we see serious confusion all you need do is improve the packaging to emphasize the product is based on non-meat proteins. So your contrariness is odd, as the article agrees with your proposal to use modification language, but the earlier paragraph really suggests that such language ("Some people grab stuff off the shelf without examining the label, based on the picture on the container") is insufficient.

      And your final paragraph highlights your real reason for being contrary, you absolutely don't understand what call I the 'costume meat' market. There are several large portions of the market for these products that are not driven by a moral objection to consuming animal products. A number of health problems can be resolved by reducing red meat intake, and for those who like red meat, alternatives that satisfy the desire for red meat foods they are used to are beneficial. Turkey bacon and turkey burgers exist for that very reason. I know a few people who can't eat red meat after abstaining for a time, their bodies don't digest those proteins well. But eating is social as much as a required action for life. Normalizing non-animal-based options that aren't shit that everyone is okay with eating is valuable to them. Then there is the environmental factor. Plant based options that are indistinguishable from the animal-based products have a much lower environmental footprint. In all these cases, while there are those vegetarians who push to abolish animal based food products, overall these products provide options to consumers for whom animal based proteins create challenges and create a market that if widely adopted could be sustainable and improve the environment without outlawing animal-based proteins.

      reply to this | link to this | view in chronology ]

      • icon
        allengarvin (profile), 27 Dec 2019 @ 9:54am

        Re: Re: Yes, but...

        "As far as champagne, the US does not protect that Term. That is why wineries in the santa rosa and napa regions can sell their sparkling wines as champagne. The EU regulates the term champagne as region specific, but the US does not regulate those terms."

        The US does regulate it since the mid 2000s (this was following years of demands from France), but grandfathered in companies that had previously used the term, which is a lot. Unless something has changed recently, no new wine makers get to call their products "champagne".

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Jan 2020 @ 9:00am

        Re: Re: Yes, but...

        A couple of points re: alternate bacon sources:

        • Pork-bacon can also be made from the shoulder of the pig -- this is sometimes used to produce a leaner product

        • There are other poultry bacons besides turkey -- fattier fowl such as duck has been used, and IME works much better than turkey for this.

        reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 27 Dec 2019 @ 9:29am

      Re: Yes, but...

      I'm going to take a contrary view. We don't allow "New York Chanpagne" or similar labelling.

      This is a different, though equally problematic, issue known as "geographical indicators." These are popular in Europe which likes to limit the ability to declare certain foods can only come from specific regions. It's lame, either way.

      reply to this | link to this | view in chronology ]

    • icon
      urza9814 (profile), 31 Dec 2019 @ 7:53am

      Re: Yes, but...

      "But it points out a basic hypocrisy if left to stand - if the point of a product is that it contains no meat - and we all know what 'meat' means - then why hint that it looks, smells, and tastes like a meat? Isn't the whole point of vegetarianism/vegan is that you don't want this? Or is it like the abortion debate, imposing a point of view 'we don't eat meat so you meat eaters should not do so either'."

      I love cheeseburgers. I don't like that producing them requires mass slaughter and environmental destruction. I would guess that only a small minority of people who choose to be vegan/vegetarian do it solely because they don't like the taste/texture/appearance of meat. Most of them have other reasons.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 6:44am

    Anyone who thinks customers read product labels at all has obviously never worked in retail.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 7:24am

    In the past, the us had truth in advertising laws. Not sure what happened to them.
    Now it seems some want special protections for their products.

    reply to this | link to this | view in chronology ]

  • icon
    Code Monkey (profile), 27 Dec 2019 @ 7:52am

    So what about luncheon meat?

    DON'T YOU DARE BAD MOUTH MY CAN OF SPAM! I know it's made of hooves and cow ass, but damn, it's tasty!!!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 9:00am

    this has nothing to do with "free speech"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Dec 2019 @ 9:07am

      companies aren't allowed to print "a healthy snack!" on cartons of rat poison. they're not allowed to write contracts agreeing to pay you for your work if they had no intention of paying you. they aren't allowed to write "0 grams of sugar" in the ingredients list if it contains 100 grams

      and they shouldn't be allowed to write things like "milk" on cartons of coconut juice, or "cheese" on squares of cheddar-flavored plastic, or, yes, "ham" on something that contains no cured pork leg

      reply to this | link to this | view in chronology ]

    • icon
      Code Monkey (profile), 27 Dec 2019 @ 9:14am

      Re: this has nothing to do with "free speech"

      I would disagree. The meat industry getting upset because a company makes a plant based product and calls it "meat" absolutely has the right to redress from the courts.

      The verdict would be up to the courts to suss out.

      I can understand their position, as a vast majority of the great, unwashed masses could get corn-fused by seeing a package of "hot dogs" that labelled as "hot dogs" but are in actuality made from plants, rather than hooves and cow ass. Those same great, unwashed masses would in all likelihood be the first ones at the same court suing over the labeling.

      This could just be a pre-emptive lawsuit on the part of the meat industry.

      ‾_(ツ)_/‾

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Dec 2019 @ 5:09am

        Re: Re: this has nothing to do with "free speech"

        and yet they are "allowed" to call pink slime meat.

        reply to this | link to this | view in chronology ]

      • icon
        urza9814 (profile), 31 Dec 2019 @ 7:57am

        Re: Re: this has nothing to do with "free speech"

        "Those same great, unwashed masses would in all likelihood be the first ones at the same court suing over the labeling."

        Various forms of "veggie burgers" have been on store shelves since the 80s. If people were going to sue over that, it would have happened already.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 10:08am

    Remember this is Arkansas

    Are we sure Arkansas consumers aren't too stupid to confuse vegan and meat products?

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 27 Dec 2019 @ 10:12am

    Fake Meat

    If you visit Egypt, or the rest of the Middle East, bacon is "beef bacon"; which is pretty much just as tasty. But... it's meat. Bacon is meat.

    As for costume meat - why bother? If you are not eating cows or pigs or chickens or chicken abortions, or stuff squeezed out of cows, why pretend you are?

    As for meat itself - humans evolved to eat meat. We honed our bipedal skills to harry animals on the savannahs of Africa until they dropped from exhaustion, while we were able to run marathon distances without problem. Our big brains need meat. The dense package of protein from successful hunt was far more nutritious and more easily obtained than picking wild beans and peas one pod at a time. Our brains are the biggest consumers of nutrients, using about 20% of our food intake.

    it is possible now, finally with highly mechanized farming and millennia of selective plant breeding, to consume non-meat meals that can come close to the quality of meat-based meals. Is it really necessary? Or are the health problems associated with red meat consumption simply the same problem of overindulgence (in plant foods) that has given us the obesity epidemic in the first place?

    the simple rule should be equally simple - if it explicitly suggests a meat product through habitual historical use, don't put it in the prominent name of the product. "burger" can be anything. "Hamburger" implies meat - beef. Hot dogs have pretty much always been primarily meat. Tofurkey - as long as nobody plays font games with the "of" in the packaging, is NOT and never has been meat. Quiche means something made of meat. Ice cream indicates a certain level of butter fat (cream). "Egg" means something that came out of a bird's butt. "Almond milk" or "Tofu Ice Cream" may not confuse the sophisticated city slicker, but food packaging should not assume everyone is a sophisticated possibly literate urban millennial, especially if the pictures on the packaging seem misleading.

    But I will agree, a law written to basically exclude any product, except on health grounds, is going too far. There needs to be a proper term.

    And in all this - we haven't even considered "lab-grown" (Vat-grown?) meat substitute, where something akin to real meat is grown without the benefit of the entire animal. Is it meat? Is it "cultured cells"? Is it still "red meat" if there's no blood? Can we call it Soylent Green if nobody was killed?

    Purina People Chow is looking like the appropriate packaging option for everything.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 12:13pm

    In the world of today, I do not expect anything to accurately describe its self in an ad, press release, endorsement, or other such deceptive advertising.
    Why should I believe anything I see and or hear in an ad? ANd keep in mind, everything is an ad, from the nightly news to the morning traffic report - everything is an ad. It could be that the most honest shows on tv are the weather.

    reply to this | link to this | view in chronology ]


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