Tofurky is suing Louisiana for the right to label its veggie burgers “veggie burgers”

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A package of Tofurky brand plant-based Italian sausage.

People buying this package probably understand that these sausages are not made of meat. | Tofurky

Consumers are not actually confused about whether veggie burgers are made out of beef, Tofurky argues.

As of October 1, a new law in Louisiana bans grocery stores from calling veggie burgers “veggie burgers,” as well as many similar product labels like “plant-based sausages” or “seitan-based vegan bacon.”

The justification? That consumers might get confused about whether veggie burgers are made of beef. It’s the latest of a series of attempts by meat companies to ban their plant-based competitors from grocery store shelves — and many legal experts say it’s probably unconstitutional.

Now, Tofurky — a 35-year-old company that makes plant-based deli products, sausages, and roasts — has sued, arguing that the vague, expansive restrictions Louisiana has put in place are an unconstitutional burden on free speech.

This debate has happened before. Last year, Arkansas tried a nearly identical law, and Tofurky sued. A judge issued an injunction a few months later, finding that the law violated the free-speech protections of the US Constitution and telling Arkansas it may not enforce the law while the case proceeds through the courts. Mississippi tried a similar law, too, and backed down, promising to revise it, when sued. That didn’t stop Louisiana from proceeding with its own, nearly identical law, but it is likely no more constitutional than the Arkansas or Mississippi ones.

Why are we fighting about Tofurky? There are no indications that consumers are confused about whether veggie burgers are made out of meat. But as plant-based products get more popular, these labeling laws are one of the meat industry’s favorite tools to fight back — even though courts keep on soundly rejecting them.

Plant-based products are getting big. Meat companies feel threatened.

In the last few years, the plant-based foods industry has seen extraordinary growth. Products from plant-based meat companies like Impossible Foods and Beyond Meat have become available around the country, and they’ve been a hit with customers.

The pandemic has seen the industry boom further, just as conventional meat production has taken a hit from supply-chain disruptions and news of inhumane policies killing workers. Plant-based meat producers have released improved products that taste even meatier, and have raised eye-popping sums of money. It used to be the case that plant-based foods were primarily marketed just to vegans and vegetarians, but they’re increasingly being consumed by meat-eaters — who might prefer plant alternatives for health, animal welfare, or environmental reasons.

“Plant-based eating trends are really blowing up now, with exponential growth,” Tofurky CEO Jaime Athos told me when we spoke last year about Tofurky’s nearly identical lawsuit in Arkansas. “We have this great moment of innovation in our industry where these products are better than ever. They’re more widely available, too. And suddenly people are worried consumers might be confused. The reality is that this is a proactive decision on the parts of consumers — they understand that plant-based products are healthier for them and healthier for the environment.”

That, of course, has made some livestock producers nervous — even though sales of animal-based meat haven’t fallen at all. Animal agriculture industry representatives have called plant-based foods one of the “major challenges” the industry faces.

So meat producers are pushing back. In testimony in the Louisiana state legislature, supporters of the bill argued it was necessary to “protect our industries” in the face of “a growing trend” of consumers deciding to purchase different products. “We must protect our industry in this state: agriculture. It’s the number one industry in the state of Louisiana,” the bill’s Senate sponsor, Francis Thompson (D-Delhi) argued during legislative hearings.

(Not all meat companies are fighting the rise of plant-based meats; many have invested in plant-based options themselves.)

The Louisiana law prohibits companies from “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.”

That is, since the word “burger” has historically been used to refer to a product made out of meat, it’s illegal to use the word “burger” to refer to a product that isn’t — like “veggie burger.” The same principle rules out labels like “plant-based deli slices” or “plant-based jumbo hot dogs.”

But is that constitutional? Would such a law run afoul of the First Amendment? Tofurky’s lawsuit filed today argues that it does. The lawsuit argues:

The Act imposes sweeping restrictions on commercial speech. It prohibits companies from sharing truthful and non-misleading information about their products while doing nothing to protect the public from any conceivable harm. By censoring familiar terms (like “veggie sausage”) that any reasonable consumer understands, the Act only creates needless consumer confusion. And it does so with the clear purpose of suppressing free market competition for the benefit of specific state-defined competitors. In so doing, the Act violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.”

Past court decisions broadly support this constitutional argument.

Federal laws prohibit labeling food in ways that are deceptive to consumers. You can’t call a product gluten-free if it isn’t, or call it “olive oil” if it’s not made from olives. When laws have tried to push beyond that, they’ve generally met a skeptical audience in the courts.

In a California case, the courts ruled that a claim that terms like “soy milk” and “almond milk” would confuse consumers was nonsense. “The crux of the claims is that a reasonable consumer might confuse plant-based beverages such as soymilk or almond milk for dairy milk, because of the use of the word ‘milk,’” the US District Court for the Northern District of California wrote, dismissing the case. “The claim stretches the bounds of credulity. 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.”

A Florida case directly examined free speech rights as they apply to food labels. Skim milk is routinely fortified with vitamin A (which prevents blindness, and which is removed in the skimming process). A law in Florida prohibited producers of milk and milk products from selling their products if the vitamin A was left out, demanding that milk without added vitamin A be called “imitation skim milk.” A small Florida milk producer sued, arguing that its product was skim milk and that it should be able to be labeled that way. The courts sided with the milk producer.

And finally, a nearly identical law in Arkansas last year was suspended by an injunction. “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,” the judge in that case concluded. The injunction is still in effect, preventing Arkansas from enforcing its law while the court battle is ongoing.

The free speech question

Does it even make sense to say that a creamery or Tofurky manufacturer has a right to free speech? The answer is yes.

The First Amendment can be applied to commercial speech — though the law is a bit complicated. In the 1940s, the Supreme Court ruled unanimously that there were no First Amendment protections for purely commercial speech. By the 1970s, the Court had reconsidered that and overturned it in 1976.

In 1980, the Court supplied the rules for First Amendment protections on commercial speech that are still applied today. Those rules are called the “Central Hudson” test because they were laid out in Central Hudson Gas and Electric Corp. v. Public Service Commission.

Here are the rules: First, commercial speech “must concern lawful activity and not be misleading.” Supporters of Louisiana’s law might argue that the term “almond milk” is misleading, while opponents argue that consumers know perfectly well what almond milk is — that, as Utah Sen. Mike Lee (R-UT) put it, “No one buys almond milk under the false illusion that it came from a cow. They buy almond milk because it didn’t come from a cow.”

“There’s nothing misleading about the name of a veggie burger, or vegan hot dog, or seitan bacon,” Jessica Almy, an attorney and director of policy at the Good Food Institute, told me when we spoke about a similar Missouri case. “The packages clearly disclose that this is plant-based food that has the taste or texture of this familiar food.”

“There is not one consumer complaint to the AG’s office ever filed,” Amanda Howell, co-counsel on the Louisiana case, told me. “All plant-based products I’ve seen are doing their best to make sure consumers know that they’re plant-based.”

Even if the speech concerns lawful activity and is not misleading, the government can still regulate it. But it has to meet the following standards: The government must have a “substantial interest” at stake, the regulation must “directly and materially advance the government’s substantial interest,” and “the regulation must be narrowly tailored.”

There’s a strong case that bans on “veggie burger” and “tofu sausage” labels don’t meet this standard. “Tofurky Co.’s packaging and marketing materials clearly indicate that their products are plant based and accurately convey the products’ ingredients,” the ACLU wrote in the Arkansas lawsuit. “Consumers are not likely to be confused by the appropriate use of the word ‘meat’ or related terms on vegetarian or vegan products. A consumer who is looking for food that has the flavor, texture, and appearance of bacon but was not derived from a live pig would find the label ‘veggie bacon’ more useful than a label that says only ‘plant-based protein.’”

In the Louisiana case, “the Act does not meet the Central Hudson test, because the government’s interest in restricting the speech is not substantial, and the law does not directly advance that interest and is not narrowly tailored to serve that interest,” the lawsuit filed today argues. “The Act further does not meet the requirements of the Central Hudson test, because its stated purpose is protectionist favoritism of specific state industries.”

“It’s bemusing that these laws keep getting passed,” Howell told me. “It’s bemusing that given the win in Arkansas the states don’t see these laws as clear losers. It’s a waste of state resources and it’s insulting to all consumers. Passing laws to protect one industry over another is not the job of our government.”

The argument against the Louisiana law is one that has prevailed in court in other cases. It is exhausting, and somewhat frustrating, to be fighting it yet again. It’s past time for meat companies to move past trying to outlaw their competition and toward addressing the problems that are driving consumers toward plant-based meat: environmental concerns, the mistreatment of slaughterhouse workers, animal cruelty, and public health.

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