As Arkansas Act 501 (HB 1407) stands (it took effect on July 24), firms are prohibited from using terms such as 'burger,' 'sausage,' and 'roast' to describe products that are not made from animals, even if they are modified by qualifiers such as 'vegan,' 'veggie,' or 'plant-based.'
Violations of the law – which is similar to those passed in Mississippi, Louisiana, South Dakota and other states - would carry fines of up to $1,000 for each individual offending label.
The ACLU, ACLU of Arkansas, The Good Food Institute, and Animal Legal Defense Fund - representing plant-based brand Tofurky – claim Act 501 violates the First Amendment and the Fourteenth Amendment’s due process clause by improperly censoring truthful speech and creating consumer confusion in order to shore up the state’s meat and other industries.
ACLU: State legislators should ‘take note of this ruling and correct course now’
In granting the plaintiff’s motion for a preliminary injunction, US District Judge Kristine G. Baker wrote: “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.”
Jessica Almy, director of policy at The Good Food Institute, said the ruling was a “victory for free speech, free markets, and consumer choice. Had this law been enforced, Tofurky would have faced a terrible choice: create confusing new labels for Arkansas with absurd language like ‘veggie tubes’ and ‘veggie discs,’ risk violating the law, or stop selling food in Arkansas altogether.”
Brian Hauss, the ACLU staff attorney who argued the case, added: “Legislatures that have passed or are considering similarly absurd laws in their states should take note of this ruling and correct course now.”
Act 501 prohibits firms from representing their wares as meat or meat products “when the agricultural product is not derived from harvested livestock, poultry, or cervids [deer],” and would also ban terms such as 'cauliflower rice.'
It also takes a pre-emptive strike against insect-based and cell-cultured meat (which is not yet commercially available), adding that, “Meat does not include a synthetic product derived from a plant, insect, or other source; or product grown in a laboratory from animal cells.”
According to court filings, Tofurky asserts that provisions in ACT 501 “represent a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products, does nothing to protect the public from potentially misleading information, and creates consumer confusion where none existed before in order to impede competition.”
Speaking to FoodNavigator-USA last summer after filing a challenge against Missouri bill SB 627, Athos at Tofurky said: “I don’t think it’s appropriate for the legislature to take up the cause of one particular industry or to choose winners or losers [in a given industry]. Consumers will vote with their taste buds and their pocket books.”
Asked about the labeling of Tofurky products - which use terms such as chick’n, burgers, bacon, ham and sausages – all with modifiers such as ‘vegan,’ ‘vegetarian,’ or ‘plant-based,’ – he said: “For so many of us growing up with an animal-centric diet, meat products serve as a the best reference points for consumers, but it’s never been our intention to deceive consumers. Our value proposition is because we’re plant-based, that’s why consumers are buying our products.
“Why should consumers have to navigate a confusing new nomenclature that we’d all have to invent?”
*The lawsuit is Turtle Island Foods, SPC, d.b.a. The Tofurky Company v Nikhil Soman, in his official capacity as director of the Arkansas Bureau of Standards. Case # 4:19-cv-514-KGB