The ACLU, the Animal Legal Defense Fund, and the Good Food Institute are suing Arkansas on behalf of The Tofurky Company to challenge a new law that restricts producers of plant-based food products from using words like “meat,” “burger,” or “sausage” to label these items. The complaint argues that the law restricts commercial speech, and thereby violates the First and Fourteenth Amendments, and the dormant Commerce Clause. The law “creates consumer confusion where none existed before in order to impeded competition.”
The stated purpose of the Arkansas law is to “protect consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.” Tofurky’s complaint states that there is actually no evidence that consumers are confused about plant-based meats, nor does the Arkansas law point to any such evidence. Moreover, existing laws, both federal (FDCA, FMIA, PPIA, and FTCA) and state, prohibit misbranding and deceptive marketing.
The lawsuit asks for a declaration that the Arkansas law is unconstitutional and an injunction against its implementation.
Along with questions about state power, this case raises questions regarding the “reasonable” consumer. Does a consumer buying a veggie burger think that burger contains meat? Or that Tofurky deli slices made with “slow-smoked tender plant-based non-gmo ingredients,” are meat? In most circumstances, the answer is no. Consumers of plant-based meat products actively seek these items. If we expect consumers to know that a “crunchberry” isn’t a real berry, and to have the wherewithal to check the nutrition facts label for the sugar content in a product labeled “healthy,” surely we can trust a consumer to understand that a veggie burger contains no animal meat.