Plant-based 'meat' battle heats up in Arkansas as Tofurky challenges 'unconstitutional' law

Act 501​​ prohibits firms from representing their wares as meat or meat products “when the agricultural product is not derived from harvested livestock, poultry, or cervids ​[deer],” ​and would also ban terms such as 'cauliflower rice.'

It also takes a pre-emptive strike against insect-based and cell-cultured meat (which is not yet commercially available), adding that, “Meat does not include a synthetic product derived from a plant, insect, or other source; or product grown in a laboratory from animal cells​.”

So moving forward, Tofurky can keep its existing labels (which all feature qualifiers such as 'vegan or 'plant-based') "at substantial risk of ruinous civil liability​;" it can spend a fortune designing and distributing different labels just for products sold in Arkansas - which may confuse shoppers; it can change its packaging nationwide; or it can stop selling its products in Arkansas altogether, said CEO Jaime Athos.

"Each of these options put Tofurky at a significant commercial disadvantage.”​

Act violates the First Amendment​

In a lawsuit​*​ filed on Monday on Tofurky's behalf by the American Civil Liberties Union, The Good Food Institute, the Animal Legal Defense Fund, and the ACLU of Arkansas, Tofurky said fear of competition – not consumer protection – was behind Act 501, noting that existing food labeling laws already prohibit misleading labeling.  

Act 501​​ violates the First Amendment and the Fourteenth Amendment’s due process clause by “improperly censoring truthful speech and creating consumer confusion in order to shore up the state’s meat and rice industries​,” claimed Tofurky.

“The only confusion here seems to be on the part of the Arkansas legislature, which seems to have forgotten its responsibility to its constituents in its rush to pass an unconstitutional law at the behest of its special interest donors​,” claimed Athos, who noted that he can't effectively market his plant-based products without comparision to conventional meat products they are designed to replace.

"The First Amendment does not allow the government to censor speech in order to pick winners and losers in the marketplace."​

The American Civil Liberties Union (ACLU)​

GFI: 'A gross overstep of state power'​

Good Food Institute director of policy Jessica Almy noted that labels on Tofurky and other plant-based brands ​all include modifiers such as ‘vegan,’ or ‘plant based’ that clearly indicate that the products do not contain meat from slaughtered animals​,​ adding: “We are confident that the court will strike down this gross overstep of state power.” ​

Her comments came shortly after the Plant Based Foods Association (PBFA) and member company Upton’s Naturals filed a lawsuit in Mississippi​​​ challenging a labeling law [SB 2922]​​​​ that could make using ‘meaty’ terms to describe plant-based and cell-cultured meat subject to criminal penalties.

Meanwhile, settlement talks in a lawsuit over similar legislation in Missouri have reached an impasse​​, with the parties now set to move forward with the litigation.

"The Act [501] does not include any evidence or legislative findings indicating that consumers are misled or confused about the use of meat or related terms on labels for plant-based meats. Nor does it include any evidence or legislative findings indicating that consumers are likely to be misled or confused about the use of such terms on labels for cell-based meats."​

Turtle Island Foods, SPC, d.b.a. The Tofurky Company v Nikhil Soman, director of the Arkansas Bureau of Standards 4:19-cv-00514-KGB ​

ALDF: 'We will continue to challenge these unconstitutional laws as long as they are on the books'​

Lead attorney for the ALDF Amanda Howell told FoodNavigator-USA that the vague language of many of the state-level bills​​ attempting to restrict meaty terms to products from slaughtered animals meant it was hard to determine if something labeled as a 'plant-based sausage,' for example, would clearly violate the law (eg. does that count as 'misrepresenting a product as meat?).

"Because the​ [Arkansas] law is written so broadly—and is void for vagueness—plant- and cell-based producers have no way of knowing whether the use of qualifiers protects them from prosecution."​

Unlike most other state bills challenging plant- and cell-based meat labeling, the Arkansas law "also takes aim at plant-based dairy products by attempting to force them under the umbrella of inapplicable standards of identity for conventional dairy products​," she added.

Speaking to FoodNavigator-USA last summer after filing a challenge against Missouri bill SB 627,​​ Athos at Tofurky said: “I don’t think it’s appropriate for the legislature to take up the cause of one particular industry or to choose winners or losers ​​​[in a given industry]. Consumers will vote with their taste buds and their pocket books.”​​​

Asked about the labeling of Tofurky​​​​ products - which use terms such as chick’n, burgers, bacon, ham and sausages – all with modifiers such as ‘vegan,’ ‘vegetarian,’ or ‘plant-based,’ – he said: “For so many of us growing up with an animal-centric diet, meat products serve as a the best reference points for consumers, ​​​but it’s never been our intention to deceive consumers. Our value proposition is because​​​ we’re plant-based, that’s why consumers are buying our products. ​​​

“Why should consumers have to navigate a confusing new nomenclature that we’d all have to invent?”​​​​

Jaime Athos: 'This is absurd'

Speaking to us this week, he added: "The author of the Arkansas law... has shared the opinion that producers 'realize the only way they can get people to try their product is to confuse them.' This is absurd. Consumers have been successfully navigating plant-based products for years. The year-over-year annual growth in the history of our culture and meteoric momentum of plant-based meats in recent years is no accident; it did not come from confused consumers thinking they were purchasing beef, poultry, or pork products derived from animals."​

The GFI’s Almy added: “There is no evidence that consumers are confused by plant-based turkey slices or veggie burger labels… ​​The government’s role is to ensure that consumers are safe and that they understand what they’re buying. Beyond that, it’s an overstep of state power to censor labels like this.”​​

• Further reading: ​​Plant-based and cell-cultured 'meat' labeling under attack in 25 states​​​​​

*The lawsuit​​ is Turtle Island Foods, SPC, d.b.a. The Tofurky Company v Nikhil Soman, in his official capacity as director of the Arkansas Bureau of Standards. Case # 4:19-cv-514-KGB filed in the Eastern District of Arkansas Western Division on July 22, 2019. The plaintiffs want the court to declare Act 501 as unconstitutional, grant an injunction preventing its enforcement, and award costs and attorneys' fees.