Wednesday, December 11, 2019

District Judge finds First Amendment Problem with Arkansas "Misrepresentation" of Foods Statute

In an opinion in Turtle Island Foods SPC d/b/a Tofurky Co. v. Soman, Judge Kristine Baker of the Eastern District of Arkansas considered a First Amendment challenge to >Arkansas Code §§ 2-1-305(2), (5), (6), (8), (9), and (10). The provisions prohibit misbranding or misrepresenting agricultural products; central to the issue was subsection 6 which prohibits

Representing the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids.

Judge Baker considered seven labels for products she referred to as “Veggie Burger,” “Deli Slices,” “Chorizo Style Sausage,” “Slow Roasted Chick’n,” “Original Sausage Kielbasa,” “Hot Dogs,” and “Vegetarian Ham Roast.” These products were not derived from "harvested livestock, poultry, or cervids" and were vegetarian.

After finding that Tofurky had standing and that abstention was not appropriate, Judge Baker analyzed the merits of the First Amendment claim. The parties agreed and the court found that the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), for commercial speech governed:

  • (1) whether the commercial speech at issue concerns unlawful activity or is misleading;
  • (2) whether the governmental interest is substantial;
  • (3) whether the challenged regulation directly advances the government’s asserted interest; and
  • (4) whether the regulation is no more extensive than necessary to further the government’s interest.

Arkansas argued that the first prong regarding misleading speech was not satisfied and thus the speech did not warrant First Amendment protection, but Judge Baker found that taken as a whole the labels were not misleading:

It is true, as the State contends, that these labels use some words traditionally associated with animal-based meat. However, the simple use of a word frequently used in relation to animal-based meats does not make use of that word in a different context inherently misleading. This understanding rings particularly true since the labels also make disclosures to inform consumers as to the plant-based nature of the products contained therein.

The “Veggie Burger” label has the word “veggie” modifying the word “burger” and includes the words “all vegan” in the middle of the package. Further, the “Veggie Burger” label features the words “white quinoa” next to a picture of the burger. The “Deli Slices” label also includes the words “all vegan” in the middle of the label, features the words “plant-based” next to a picture of the product, and describes the product as “smoked ham style.” (emphasis added). The “Chorizo Style Sausage” label includes the words “all vegan” and states that the product was “made with pasture raised plants.” The “Slow Roasted Chick’n” label has the words “all vegan” right next to the product’s name and describes the product as “plant-based” in the bottom left corner. The “Original Sausage Kielbasa” label includes the words “all vegan” next to the word “sausage” and identifies the product as “Polish-style wheat gluten and tofu sausages.” The “Hot Dogs” label has the words “all vegan” next to the word “dogs” and “plant-based” under the word “dogs.” The “Vegetarian Ham Roast” has the word “vegetarian” modifying the words “ham roast.” Each of these labels also feature the letter “V” in a circle on the front of the packaging, a common indicator that a food product is vegan or vegetarian. Finally, each of these labels feature the company name “Tofurky,” which clearly contains the word “tofu” in a play on the word “turkey.”

Applying the other prongs of Central Hudson, Judge Baker found that while the state had an interest in preventing misleading labels, the statute did not substantially further that interest (given that these labels were not misleading), and that a ban on these descriptions was more extensive than necessary.

Thus, Judge Baker issued a preliminary injunction, finding that the factors for a preliminary injunction had been met.

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https://lawprofessors.typepad.com/conlaw/2019/12/district-judge-finds-first-amendment-problem-with-arkansas-misrepresentation-of-foods-statute-.html

First Amendment, Food and Drink, Opinion Analysis, Speech | Permalink

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