The Beef Goes On: Tofurky Challenges Arkansas Meat Labeling Law

by Michelle C. Pardo

Tofurky goes to court – again. On July 22nd, Turtle Island Foods (doing business as The Tofurky Company) filed a federal lawsuit in the Eastern District of Arkansas against the Arkansas Bureau of Standards to challenge the constitutionality of an amended Arkansas law that prohibits “purveyors of plant- or cell-based meats” from using the words “meat” and related terms like “beef,” “pork,” “roast,” and “sausage.” See Ark. Code Ann. § 2-1-305. Violations of the law, which goes into effect on July 24, 2019, may be punished by civil penalty up to $1,000. Counsel for Tofurky includes animal activist group Animal Legal Defense Fund, the ACLU Foundation, and The Good Food Institute, a Washington, DC based advocacy group (whose founder previously ran vegan campaigns for PETA). All of these organizations previously teamed up with Tofurky to challenge Missouri’s amended meat advertising law.

The stated legislative purpose of the Arkansas law is to require truth in labeling and to protect consumers from being misled or confused. The law defines “meat” as “a portion of a livestock, poultry or cervid carcass that is edible by humans.” It further states that meat “does not include” “(i) synthetic products derived from a plant, insect or other source; or (ii) product grown in a laboratory from animal cells.” Ark. Code Ann. § 2-1-302(7) (A) & (B). In addition to restrictions on use of the term “meat” and related terms, the law also bans companies from labeling vegetables, such as cauliflower, as “rice.” Arkansas is the nation’s top rice producer.

In its lawsuit, plaintiff Tofurky alleges that the Arkansas law restricts commercial speech and prevents companies from sharing “truthful and non-misleading information” about their food products and “does nothing to protect the public from potentially misleading information.” Tofurky product labels include terms such as “burgers,” “chorizo style sausage,” “slow roasted chick’n,” “hot dogs” and “ham roast,” some of which are coupled with qualifiers such as “veggie,” “plant-based” and “vegetarian.” Tofurky alleges that their labels include modifiers that clearly indicate that the products do not contain meat from slaughtered animals and include package photos in the complaint. Some of the package photos show that the meat-related terms are more prominently featured on the label than the plant-based terms.

Supporters of meat advertising laws disagree with Tofurky’s allegations and claim that plant-based food manufacturers utilize meat and meat-related words to deliberately try to confuse consumers in order to get unwary customers to purchase their products.

Tofurky and The Good Food Institute disagree. They have argued that such laws are not aimed at alleviating consumer confusion, but rather a way to protect the agriculture industry’s meat producers from competition. An ACLU attorney, commenting on the Arkansas law, has stated: “It’s absurdly patronizing that the government of Arkansas is asserting that the people of Arkansas can’t tell a ‘veggie burger’ from a ‘hamburger’ or a ‘tofu dog’ from a ‘hot dog.’”  But confusion between “chicken” and “chick’n” seems much less absurd than many consumer fraud cases brought by animal and environmental activists that populate court dockets across the country.

Restrictions on meat advertising are not just a creature of American law. This past spring, the European Parliament’s Committee on Agriculture and Rural Development agreed to seek to restrict plant-based products from being labeled as steak, sausage, escalope (a thin slice of meat without any bone), burger or hamburger. Under the EU rules proposed in Brussels, veggie burgers could be re-branded as “veggie discs” and vegetarian sausages as, the incredibly appetizing “veggie tubes.”  The proposal will be voted on in the fall.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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