NEW ORLEANS (CN) — Louisiana can enforce a state law aimed at keeping companies from deceiving consumers by using meat-like descriptions on packaging for plant-based food products, a three-judge panel at the Fifth Circuit held Wednesday.
The 3-0 ruling reverses a federal judge's decision to halt enforcement of the law last year in a case brought by Tofurky, the brand name behind the vegan turkey substitute known as tofurkey.
Senior U.S. Circuit Judge Edith Brown Clement wrote for the panel that the state’s Truth in Labeling of Food Products Act does not mean that Tofurky’s labels using meat terms such as “chik’n” and “burger” in addition to “plant-based” are in danger of facing a penalty under the law because Tofurky is not out to make consumers think its products contain meat.
The ruling noted that Tofurky’s interpretation of the act used a broader reading to protect itself ahead of a court ruling, even while the state insisted on a narrower interpretation of the law aimed at stopping unscrupulous companies from confusing consumers into believing meatless items contain meat.
Clement, a George W. Bush appointee, agreed with the state’s narrower interpretation, reversing last year’s ruling from U.S. District Judge Brian A. Jackson, a Barack Obama appointee who placed a hold on the state’s ability to enforce the law.
"Nothing in the statute’s language requires the State to enforce its punitive provisions on a company that sells its products in a way that just so happens to confuse a consumer," Clement wrote. "The State’s construction limits the Act’s scope to representations by companies that actually intend consumers to be misled about whether a product is an 'agricultural product' when it is not. This interpretation is not contradictory to the Act, and we thus accept it for the present purposes of evaluating Tofurky’s facial challenge."
Clement was joined on the panel by U.S. Circuit Judges Jerry E. Smith and Cory T. Wilson, appointees of Ronald Reagan and Donald Trump, respectively.
Jaime Athos, president and CEO of Tofurky and the dairy-free company, Moocho, replied to a request for comment Wednesday evening by saying Torfurky is happy with the ruling.
“What the Court did was to narrow this law to only apply if a company is intentionally misleading consumers," Athos said. "That situation would always have been prohibited by longstanding state and federal consumer protection laws, and this ruling essentially removes any additional ambiguity or scrutiny for plant-based companies.”
Athos added that “Louisiana lawmakers were clearly doing the bidding of the animal agriculture lobby when they passed this protectionist law, but the Court’s ruling neutralized those unconstitutional efforts and restored some fairness to the marketplace."
Attorneys for Louisiana's agricultural and forestry commissioner, Mike Strain, did not immediately reply to emailed requests for comment.
Amanda Howell, an attorney for the Animal Legal Defense Fund who represents Tofurky, called the ruling a pleasant surprise and said the decision should put the minds of plant-based food producers at ease.
“Companies like Tofurky can rest easier,” Howell said. “If you’re not trying to trick consumers, such as by selling sawdust as a hamburger, then you should be OK."
She added that it was an unusual way for the Fifth Circuit to affirm Tofurky but a welcome one.
"I wouldn't have picked this as a way to win, but I feel very satisfied," Howell said in an interview with Courthouse News.
Turtle Island Foods, the owner of the Tofurky brand name, brought the underlying lawsuit against state regulators in 2020, preemptively challenging the then-new statute requiring plant-based food products to use descriptions other than those commonly used for meat products.
Enacted that same year, the law banned companies from using terms “meat or a meat product” when animal meat products are not ingredients.
Tofurky said it would cost millions of dollars to change its product descriptions on labels and national advertising to comply with the law, which carries a penalty of up to $500 a day.
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 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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