In the past few years, several states have passed laws governing the words or phrases that food manufacturers can use to identify alternative protein products (plant-based, insect-based, or cell-cultured). These “Truth in Labeling” laws focus almost exclusively on meat labeling, with the exceptions of Arkansas and Louisiana which also limit the use of the term “rice”. Many of these laws have been challenged in the federal court system, with plaintiffs arguing that they violate the protections promised under the First Amendment to the United States Constitution.

Many of these legal challenges are still pending, but without much recent movement.  However, on March 28, 2022, Judge Brian Jackson, a federal judge serving the United States District Court for the Middle District of Louisiana, held that Louisiana’s “Truth in Labeling of Food Products Act” was unconstitutional in the case Turtle Island Foods v. Strain, No. 20-00674-EWD (M.D.La. March 28, 2022). Turtle Island Foods, the plaintiff in this case, is the maker of Tofurky. This blog post first provides an update on litigation involving alternative meat labeling laws in states other than Louisiana, and then explains why Judge Jackson held Louisiana’s law unconstitutional.

Update on Pending Challenges in Other States

Turtle Island Foods has challenged similar laws in several states, including Arkansas and Missouri.  Another alternative protein company, Upton’s Naturals, has challenged similar laws in Mississippi and Oklahoma. None of these cases, expect for the one in Oklahoma, have seen any major developments since the National Agricultural Law Center last published blog updates on these cases. To read these blog posts, click here and here.

In the Oklahoma case, Upton’s Naturals was the original named plaintiff. See Upton’s Naturals Co. v. Stitt, No. 20-938-F, 2020 WL 6808784 (W.D.Okla. Nov. 19, 2020). However, on November 9, 2021, Turtle Island Foods filed a complaint with the United States District Court for the Western District of Oklahoma. By filing this complaint, Turtle Island Foods replaced Upton’s Naturals as the named plaintiff. A secondary plaintiff, the Plant Based Foods Association, has remained a plaintiff since the onset of the lawsuit. The Plant Based Foods Association’s continued involvement allowed Turtle Island Foods to take over for Upton’s Naturals.  Because Turtle Island Foods has taken over Upton’s Naturals place in the case, the case now has a new name, however, it carries the same case number and citation. In addition to changing a plaintiff in the case, Turtle Island Foods’ complaint also changed the plaintiffs’ claims. Upton’s Naturals’ original complaint argued that the law violated Upton’s Naturals First Amendment right to commercial speech. However, Turtle Island Foods’ complaint argues that the Oklahoma law violates the dormant Commerce Clause, the Due Process Clause, and the Supremacy Clause of the United States Constitution.

The State of Oklahoma filed its answer to Turtle Island Foods’ complaint on November 23, 2021. In its answer, the State of Oklahoma stated the following four affirmative defenses: (1) Turtle Island Foods failed to state a claim, (2) Turtle Island Foods lacks standing, (3) Oklahoma’s Governor Stitt is an improper party, and (4) the State of Oklahoma is immune from suit.

Louisiana’s Law

The Louisiana “Truth in Labeling of Food Products Act” went into effect on October 1, 2020. Less than a week later, on October 7, 2020, Turtle Island Foods filed a lawsuit challenging the law. In its complaint, Turtle Island Foods claimed that the Louisiana law was unconstitutional based on the First and Fourteenth amendments of the United States Constitution. In its answer to the complaint, the State of Louisiana argued that Turtle Island Foods did not have standing to bring the lawsuit since the State of Louisiana had not charged Turtle Island Foods with violating the law.

After both parties filed motions for summary judgement, Judge Jackson held that Turtle Island Foods had standing to bring the lawsuit, and that the law violated Turtle Island Food’s First Amendment right to commercial speech. Because the Court determined the law was unconstitutional under the First Amendment, the Court did not address Turtle Island Foods’ second constitutional challenge: whether the law was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.

Standing

As this National Agricultural Law Center post explains, a person or entity who has standing has a legal right to bring a claim in a lawsuit. There are three elements a plaintiff must satisfy to prove they have standing. These elements include “injury in fact”, causation, and redressability. A plaintiff in a First Amendment freedom of speech case can demonstrate an “injury in fact” by showing (1) the plaintiff intended to engage in conduct “arguably affected with a constitutional interest”; (2) the challenged law proscribes or directs the plaintiff’s future conduct; and (3) there is a substantial threat of future enforcement. Turtle Island Foods v. Strain, at 7 (quoting Barilla v. City of Hous., Tex., 13 F.4th 427, 432-34 (5th Cir. 2021)). Although a plaintiff is required to have standing to file a case, it is typically argued only if the defendant alleges that the requirements for proving standing have not been not met.  This case is an example of that situation.

The State of Louisiana argued that Turtle Island Foods did not suffer an “injury in fact” because it did not face a substantial threat of future enforcement and, therefore, did not meet the standing requirements. The State of Louisiana argued that it reviewed some of Turtle Island Foods’ labels and determined they did not violate the law. Additionally, the State assured Turtle Island Foods that the State would not enforce the law while the lawsuit was pending. Turtle Island Foods, on the other hand, argued that the State’s assurances did not protect Turtle Island Foods from future enforcement. Turtle Island Foods also pointed out that in response to the Louisiana law, it refrained from using certain words and images on its marketing materials and food packages, and it removed videos from its website and social media.

Ultimately, the court agreed with Turtle Island Foods, holding that the company met the requirements for standing. The court found that Turtle Island Foods faced a substantial threat of future enforcement because it “has no way of knowing whether its additional current or future labels might violate the Act.” The court also pointed out that the assurances made by the current state government officials may not be upheld by future government officials. Because the court determined that Turtle Island Foods had standing, it was able to move on to evaluate the other claims in the lawsuit.

First Amendment Right to Commercial Speech

As explained in this National Agricultural Law Center blog post, the First Amendment to the United States Constitution restricts both federal and state governments from abridging a person’s freedom of speech. However, governments can restrict speech in certain circumstances. A government can restrict commercial speech—speech that is used for advertising purposes—if: (1) the commercial speech concerns unlawful activities or is misleading; (2) the government has a substantial interest in restricting the commercial speech; (3) the government’s restrictions directly advances the government’s stated interest; and (4) the government’s restrictions are not more extensive than necessary. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).

In this case, the court applied this four-part “Central Hudson Test” and determined that the Louisiana law is unconstitutional. The court explained that the Louisiana law “impermissibly restricts commercial speech because the speech at issue is not misleading, and while the governmental interest in likely substantial, the Act is more extensive than necessary to further the Government’s interest.” This means that the court found that Louisiana’s law failed parts one and four of the Central Hudson Test.

Under part four of the Central Hudson Test, the court found that the Louisiana law was more extensive than necessary because the State failed to prove that consumers are confused by Turtle Island Foods’ product labeling. Additionally, the court found that the State could have achieved its stated interest through less restrictive means, such as requiring food manufacturers to include disclaimers on alternative protein product labels.

What’s to Come

Although the United States District Court for the Middle District of Louisiana found that the Louisiana law was unconstitutional, the State of Louisiana can appeal the decision to the United States Court of Appeals for the Fifth Circuit. The State of Louisiana has until April 27, 2022, to file that appeal, if they choose to do so. See Fed.R.App.P. 4. If appealed, a panel of Fifth Circuit judges can either overturn or uphold the Middle District of Louisiana’s decision.

This case marks the first time a judge has declared an alternative meat labeling law unconstitutional. While this opinion is not binding on any of the other pending alternative protein labeling law cases, litigators in those cases may use it persuasively.

To read the rest of the National Agricultural Law Center’s “Truth in Labeling Law(suits)” blog series, click here, here, and here.

To watch a National Agricultural Law Center webinar on alternative protein labeling, click here.

For more National Agricultural Law Center resources on food labeling, click here.

**This article was written by former NALC Staff Attorney Jana Caracciolo.