Since 2018, 15 states have passed laws that limit the use of terms such as “burger,” “chick’n,” and “sausage”. Plant-based food companies have challenged four of these state laws. Pervious NALC articles have discussed the developments of these cases. This article discusses the most recently released court opinion out of the Eastern District of Arkansas. This article first provides a brief overview of the litigation in other states, and then discusses the Arkansas law and the Eastern District’s opinion.

Overview of litigation in other states

In 2018, Missouri was the first state to pass an alternative protein labeling law. That same year, Turtle Islands Foods, the parent company of Tofurky, filed a lawsuit against the state, challenging the constitutionality of the law. In 2019, the Western District of Missouri denied Tofurky’s request for a preliminary injunction, in part because it found that none of Tofurky’s labels violate the law because the labels include disclaimers such as “plant-based” and “vegan” and were not likely to mislead consumers. See Turtle Island Foods, SPC v. Richardson, 425 F.Supp.3d 1131, 1140 (W.D. Mo. 2022). In 2021, the Eighth Circuit upheld the district court’s denial. This, however, did not end the case. Tofurkey filed an amended complaint in 2022 arguing that the plain language of the statute and the State’s statements are contradictory, and it is unclear whether the law and guidance documents apply to Tofurky.

In 2019, Mississippi passed its alternative protein labeling law. The same day the law went into effect, Upton’s Naturals, a plant-based food company, filed a lawsuit against the state challenging the constitutionality of the law. This case, however, never was presented in front of judge and was dismissed in January 2021. The parties agreed to drop the case after the state of Mississippi promulgated regulations which clarified that the state of Mississippi will not consider plant-based products meat if the front label includes a disclaimer such as “meat free,” “meatless,” “plant-based,” or anything similar.

Louisiana’s truth in labeling law went into effect in 2020, and once again Tofurky filed a lawsuit against the state. In March of 2022, the Middle District of Louisiana ruled that Louisiana’s law was unconstitutional under the First Amendment of the United States Constitution. Because the court ruled that the law was unconstitutional under the First Amendment, it did not evaluate whether it was unconstitutional under the procedural due process clause of the Fourteenth Amendment. See Turtle Island Foods SPC v. Strain, —F.Supp.3d —, 3:20-cv-00674 (M.D. La. 2022). In April of 2022, the state of Louisiana filed an appeal with the Fifth Circuit Court of Appeals who will decide whether to uphold or reverse the District Court’s holding that the law is unconstitutional.

Oklahoma’s law also went into effect in 2020 and was also challenged that same year. Unlike the other state laws, however, Oklahoma’s law does not ban certain terms, but instead explicitly requires plant-based products to carry a disclosure. Upton’s Naturals was the original plaintiff in the case, however, after the Western District of Oklahoma denied its motion for preliminary injunction on First Amendment grounds, Tofurky took over the case. Tofurky filed an amended complaint in November 2021, in which it dropped the First Amendment complaint and argued that the Oklahoma law is unconstitutional under the supremacy clause, the dormant commerce clause, and the procedural due process clause.

Arkansas’ “Truth in Labeling” law

Although the alternative protein labeling laws in the different states are fairly similar, they are not identical. For example, Oklahoma’s law is the only one that , in the text of the statute, requires a disclosure on plant-based products. Arkansas’ law, which went into effect July 24, 2019, also has some unique aspects. For example, it prohibits the term “rice” on non-rice products, something Louisiana’s law also attempted. Arkansas law reads as follows:

A person shall not misbrand or misrepresent an agricultural product that is edible by humans, including without limitation by:

1. Affixing a label that is false or misleading;
2. Selling the agricultural product under the name of another food;
3. Omitting information required under § 20-56-209 from the label;
4. Placing information on the label in a way that does not conform with the requirements under § 20-56-209;
5. Representing the agricultural product as a food for which a definition and standard of identity has been provided by regulations under § 20-56-219 or by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as it existed on January 1, 2019, unless:
   1.  The agricultural product conforms to the definition and standard; and
   2.  The label of the agricultural product bears the name of the food specified in the definition and standard and includes the common names of optional ingredients other than spices, flavoring, and coloring present in the food as regulations require;
6. Representing the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids;
7. Representing the agricultural product as rice when the agricultural product is not rice;
8. Representing the agricultural product as beef or a beef product when the agricultural product is not derived from a domesticated bovine;
9. Representing the agricultural product as pork or a pork product when the agricultural product is not derived from a domesticated swine;
10. Utilizing a term that is the same as or similar to a term that has been used or defined historically in reference to a specific agricultural product; or
11. Affixing a label that uses a variation of rice in the name of the agricultural product when the agricultural product is not rice or derived from rice.

Ark. Code Ann. § 2-1-305 (also referred to as Act 501).

Tofurky’s Case Against Arkansas

Tofurky filed its lawsuit against the state of Arkansas on July 22, 2019. In the initial complaint, Tofurky’s arguments were very similar to its arguments in the cases against the other state laws: that the Arkansas law is unconstitutional, facially and as applied to Tofurky, under the First Amendment, the Due Process Clause, and the Dormant Commerce Clause. In August of 2019, Tofurky filed a motion for preliminary injunction, in which Tofurky asked the court to prohibit the state of Arkansas from enforcing subsections (2), (5), (6), (8), (9), and (10). On December 11, 2019, the Eastern District of Arkansas granted Tofurky’s motion, but only as applied to Tofurky. This means that Arkansas was only prohibited from enforcing these provisions against Tofurky. However, “because Tofurky challenged the constitutionality of specific provisions of Act 501 before they became effective, [Arkansas] has not taken steps to enforce” the law. Turtle Island Foods SPC v. Soman, — F.Supp.3d—, 4:19-cv-00514-KGB, 2022 WL 4627711 (E.D. Ark. 2022).

In September 2023, both parties filed a joint motion for preliminary injunction. In a supplement to the motion, Tofurky asked the court to do the following:

• find provisions (6), (8), (9), and (10) facially unconstitutional under the First Amendment;
• find provisions (2) and (5) unconstitutional under the First Amendment as applied to Tofurky;
• find provision (10) facially unconstitutional under the Fourteenth Amendment’s due process clause;
• permanently enjoin Arkansas from enforcing provisions (6), (8), (9), and (10) generally;
• permanently enjoin Arkansas from enforcing provisions (2) and (5) against Tofurky.

Importantly, Tofurky did not challenge provisions (7) and (11), the provisions relating to labeling non-rice products as rice.

Regarding each of these requests, Judge Kristine Baker of the Eastern District of Arkansas did the following:

Provisions (6), (8), (9), and (10) do not facially violate the First Amendment

Judge Baker found that provisions (6), (8), (9), and (10) are not facially unconstitutional under the First Amendment. To determine whether the provisions are facially unconstitutional under the First Amendment, Judge Baker applied the Central Hudson test. Under which there is a preliminary question of whether the commercial speech in question concerns unlawful activity or is misleading. If the law being challenged is trying to prevent commercial speech that is unlawful or misleading, then the law is constitutional. Judge Baker explained that it is foreseeable that alternative protein products, other than those offered by Tofurky, might not include disclaimers such as “plant-based” and “vegan”. Judge Baker held that without such disclaimers a plant-based product label would be misleading. Judge Baker therefore held these provisions facially constitutional under the First Amendment, and Arkansas can enforce the law against such products.

Although Judge Baker held that the provisions are facially constitutional under the First Amendment, she also held that they are unconstitutional as applied to Tofurky. Applying all four steps of the Central Hudson test, Judge Baker first found that Tofurky’s labeling is neither unlawful or misleading because it includes disclaimers such as “plant-based” and “vegan”. Judge Baker then explained that although Arkansas has a legitimate state interest in combatting misleading and false labeling, Act 501 does not advance this interest when the label includes disclaimers such as Tofurky’s. Lastly, Judge Baker found that Act 501 is more extensive than necessary to serve the state interest and suggested that Arkansas could have required “more prominent disclosures of the vegan nature of plant-based products, create[ed] a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require[d] a disclaimer that the products do not contain meat”.

Provisions (2) and (5) are unconstitutional as applied to Tofurky

According to Judge Baker’s opinion “Tofurky asserts that [provisions (2) and (5)] are unconstitutional as applied to it because these provisions of the Act replicate provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 343(b), (g) and its state analogue Arkansas Code Annotated § 20-56-209(2), (7)”. Tofurky argued that it would be able to successfully show that the federal and state laws mentioned would violate its First Amendment right to commercial speech, and because provisions (2) and (5) replicate these laws, provisions (2) and (5) are unconstitutional as applied to Tofurky. Judge Baker agreed and held provisions (2) and (5) unconstitutional as applied to Tofurky.

Provision (10) facially violates the Fourteenth Amendment’s due process clause

Judge Baker found that provision (10) is facially void under the due process clause because it is unconstitutionally vague. A provision is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Judge Baker found that although Arkansas defined some terms in the law, “there are many other terms for ‘agricultural product[s]’ left undefined by the statute which have been used or defined historically in multiple ways including, but not limited to, meat, milk, patty, buffalo, steak, and butter.” Because these terms can have many different meanings, but Act 501 doesn’t define them, it is unclear whether provision (10) prohibits their use. Therefore, Judge Baker held provision (10) facially void for vagueness.

Arkansas is permanently enjoined from enforcing (2), (5), (6), (8), and (9) as applied to Tofurky; and provision (10) facially  

Because Judge Baker found that provisions (2), (5), (6), (8), and (9) are unconstitutional as applied to Tofurkey under the First Amendment, and provision (10) is unconstitutionally vague under the due process clause, she granted Tofurky’s permanent injunction. However, Judge Baker denied Tofurky’s request to enjoin Arkansas from enforcing provisions (6), (8), and (9) against all alternative protein manufacturers. This means that Arkansas cannot enforce provisions (2), (5), (6), (8), and (9) against Tofurky, and cannot enforce provision (10) at all.

What’s To Come

Judge Baker’s opinion appears to conflict with Judge Jackson’s opinion finding the Louisiana law unconstitutional. The Arkansas and Louisiana laws are very similar; however, Judge Jackson’s opinion did not distinguish between facial and as-applied constitutionality, nor did he evaluate the constitutionality of individual provisions. Another difference is that Judge Jackson held fully in favor of Tofurky, allowing only the State of Louisiana to appeal the case to the Fifth Circuit Court of Appeals, which it did on April 21, 2022. Under Judge Baker’s opinion, either or both Tofurky and the State of Arkansas can file an appeal with the Eight Circuit Court of Appeals.

Judge Baker’s opinion, as opposed to Judge Jackson’s opinion, will give Tofurky legal theory to pull from in its case against the Oklahoma law. Tofurky dropped its First Amendment challenge in the Oklahoma case but is still claiming the Oklahoma law is unconstitutionally vague. Judge Jackson found the Louisiana law unconstitutional under the First Amendment and did not address the whether the law was unconstitutionally vague. Therefore, Tofurky can use Judge Baker’s holding on provision (10) as persuasive authority.

To read the other articles in this series, click here, here, here, and here.

To read Judge Baker’s opinion, click here.

To learn more about food labeling generally, visit the NALC’s food labeling reading room, here.

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