BATON ROUGE, La. (CN) — Louisiana consumers interested in a vegetarian take on turkey will not be confused by the labeling and think it contains an animal product, a federal judge ruled.
The decision means the brand Tofurky won’t be in danger of a $500 a day fine for creating consumer confusion in the labeling of its product tofurkey, a vegan turkey substitute.
Turtle Island Foods, the owner of the Tofurky brand name, brought a lawsuit against state regulators in 2020, preemptively challenging a new state statute requiring plant-based food products to use descriptions other than those commonly used for meat products.
In a 20-page ruling Monday, U.S. District Judge Brian Jackson in Baton Rouge halted enforcement of the law. He said the Louisiana Department of Agriculture and Forestry "has failed to address why alternative, less-restrictive means, such as a disclaimer, would not accomplish its goal of preventing consumer confusion."
“Here, Defendant’s general argument that the Act does not prohibit Plaintiffs commercial speech, but only prohibits other misleading speech is not enough to bear its burden,” wrote Jackson, an Obama appointee. “Defendant has ‘failed to satisfy the required burden of demonstrating a reasonable fit between its regulation and the constitutionally-protected speech.’ Accordingly, the Act is an impermissible restriction on Plaintiffs commercial speech.”
Jaime Athos, president and CEO of Tofurky Company, called the decision “a victory for the entire plant-based industry."
“The Louisiana court has seen right through the disingenuous pretext under which this law was passed, and rightfully intervened to protect the First Amendment rights of companies like Tofurky and the rights of Louisianans to have unfettered access to the healthier, more sustainable foods of their choosing,” Athos said in a statement.
Louisiana’s Truth in Labeling of Food Products Act, also known as Act 273, took effect in October 2020 and prohibits companies from using meat-related labeling terms on food not containing meat products, even when the product labels include terms such as "vegan" or "plant-based."
Turtle Island's lawsuit said the rule, which had only just gone into effect at the time the complaint was filed, would have prevented Tofurky from selling its product in Louisiana because relabeling and repackaging would have been too costly.
"The Act imposes sweeping restrictions on commercial speech," the complaint states. "It prohibits companies from sharing truthful and non-misleading information about their products while doing nothing to protect the public from any conceivable harm.”
The U.S. Food and Drug Administration has long required that food producers truthfully label the nature and contents of their products using common or usual terms. Tofurky says terms like “veggie burger” accurately inform consumers how plant-based products can be served and what they taste like.
The animal agriculture industry has suggested plant-based products should have to use terms like “veggie pucks” instead of “veggie burger” and “vegan tubes” instead of “vegan hot dogs.” The state law at issue barred plant-based products from using words like "burgers," "hot dogs" and "sausages."
Stephen Wells, executive director of the Animal Legal Defense Fund, which represented Tofurky along with the Good Food Institute, said in a statement after the ruling that companies are entitled under the First Amendment to "market and label their products in truthful ways that consumers will recognize and that aligns with their values."
“Louisiana’s labeling law was a clear and unconstitutional attempt to protect the animal agriculture industry from competition amidst the growing market for foods not derived from slaughtered or confined animals, which don’t carry the same risks to human health, animals, and the environment,” Wells said,
Francis Thompson, a Democratic state representative who introduced Act 273 when he was a state senator, told New Orleans' CBS affiliate WWL-TV in 2019 that while most of the “fake" products representing themselves as meat and dairy substitutes are not made in Louisiana, there isn’t any reason they should be outlawed altogether.
Instead, they should just be forced to be upfront about what the products contain, he said.
“We are not trying to stop anyone in the industry from selling their products, we just don’t want them to put a label that is not true,” Thompson said.
Thompson did not immediately reply to an email asking for comment on Monday’s decision.
The Louisiana law is similar to food-labeling statutes passed in Arkansas, Missouri, Mississippi and other states. A number of those laws are also being challenged by Tofurky, the Animal Legal Defense Fund and the Good Food Institute. A judge in Arkansas halted enforcement of that state's law in December 2019, finding it was likely an unconstitutional restriction on Tofurky’s right to free speech.
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