Search results for: tofurky

  • Officials are urging a federal court to dismiss Tofurky’s challenge of Texas’s new food labeling law, arguing that the plant-based meat maker has only made “hypothetical” allegations and lacks standing.
  • Texas Senate Bill 664 asserts that analogues of meat, poultry, seafood and eggs will be deemed misbranded unless the product label “bears in prominent type equal to or greater in size than the surrounding type and in close proximity to the name of the product one of the following: ‘analogue’; ‘meatless’; ‘plant-based’; ‘made from plants’; or a similar qualifying term or disclaimer intended to clearly communicate to a consumer the contents of the product.”  For cultivated meat products, it imposes an identical labeling requirement with one of the following terms: “cell-cultured”; “lab-grown”; or something similar.
  • Tofurky claims that, “The law institutes an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards on Tofurky and other plant-based meat producers who use words associated with meat products to describe products that are clearly marketed and packaged as 100% plant-based/vegan.”
  • In its motion to dismiss, Texas counters that the legal action is at best premature and that Tofurky lacks standing as to the law’s provisions related to cell-cultured, since the company is solely a plant-based organization.  “It cannot be overstated that Plaintiffs have not clearly and properly alleged what, if any, provisions of the Amendment they cannot meet,” according to Texas.
  • Keller and Heckman LLP will continue to monitor and relay any developments in the labeling and litigation space.
  • Last month the U.S. District Court for the Western District of Oklahoma dismissed for lack of standing an amended complaint filed by the Plant Based Foods Association (PBFA) and the Tofurky Company challenging the “Oklahoma Meat Consumer Protection Act” (the “Act”). The Court had previously dismissed an earlier iteration of the lawsuit.
  • The Act prohibits any person “advertising, offering for sale or selling meat” from “misrepresenting a product as meat that is not derived from harvested production livestock,” but indicates that plant-based meat products do not violate the Act so long as their packaging bears a disclosure that the product is derived from plants. “Meat” is defined as “any edible portion of livestock or part thereof.”
  • The Court recited the well-known tenants of Article III standing. Namely, a plaintiff must demonstrate (1) injury in fact, (2) causation between the injury and the challenged conduct, and (3) that a favorable decision would be likely to redress the injury.
  • The Court held that Defendants could not demonstrate injury because the Act’s text literally only applied to persons “advertising, offering for sale or selling meat,” the definition of “meat” did not encompass plant-based meat products, and Defendants (including PBFA’s members) could not show that they sold meat. Although the Court recognized that this construction was clearly inconsistent with the Act’s intent to prevent misleading marketing of plant-based meat products, it stated that the task of re-writing the statute was for the legislature.
  • The Court also held that causation could not be established because neither of the Defendants (the OK Governor and the OK Commissioner of Agriculture) had the authority to enforce the Act. The State Board of Agriculture was charged with enforcing the law and the Commissioner was only one member of the Board. Furthermore, the Court held that OK does not have a unitary executive and the governor of OK is not charged with enforcement (unlike many other states). Finally, the redressability element was not met where there was no power to enforce the Act. 
  1. On September 30, 2022, a federal Court permanently enjoined Arkansas from enforcing provisions of a state law (Arkansas Code § 2-1-305(2),(5),(6),(8),(9), and (10)) which would have prevented Plaintiff Tofurky from marketing or selling its plant-based meat products in the state with any name that uses a traditional meat term. (Turtle Island Foods SPC v. Soman, Case No. 4:19-cv-00514).
  2. The Court, applying the Central Hudson doctrine for commercial speech, held that the law did not withstand First Amendment scrutiny. In particular, the Court held that the labeling of Tofurky’s products was not misleading because each product featured prominent disclosures which made it clear that the product was plant-based and not animal-based. Therefore, the government could not show that it was directly advancing its stated interest in protecting consumers from false or misleading labeling. Furthermore, the Court found that the ban was more extensive than necessary and amounted to an outright ban on non-misleading speech.
  3. Notably, while Plaintiff was successful in its as-applied constitutional challenge (a challenge to the statute as applied in the particular case), the Court rejected a facial First Amendment challenge because there could be a set of circumstances where the law is valid as applied (i.e., if the law was applied to a company which did not include disclosures indicating that its product was plant based). Nevertheless, the Court’s reasoning makes clear that enforcement of the law against any company marketing plant-based meat products with appropriate qualifiers is unconstitutional.
  • At the end of March, U.S. federal Judge Brian A. Jackson issued a decision in Turtle Island Foods v. Strain, which blocked a Louisiana labeling law for violation of commercial free speech guarantees.  Judge Jackson concluded that the Louisiana labeling law encroached on protected commercial speech with its extensive list of prohibited language.  Commercial speech is protected by the U.S. Constitution, but the protection is more limited than other forms of speech.  When a complaint is filed for violation of commercial free speech, the party seeking to uphold the speech restriction must demonstrate that the government has a legitimate interest in restricting particular types of commercial speech, and the subject law or regulation is the least restrictive manner to regulate such speech.
  • In June 2019, the Louisiana Legislature passed the “Truth in Labeling of Food Products Act.”  The Act prohibited labeling that misrepresents a food product as an agricultural product.  In particular, the Act applied to a range of agricultural products, including, but not limited to meat.  The Act provided definitions for, and restricted the use of terms like “meat,” “beef,” “pork,” “poultry,” and “rice.” Notably, the law prohibited plant-based products from using the term “meat,” non-rice products from using the term “rice,” and sugar alternatives from using the term “sugar.”  The Act also preemptively prohibited cell-cultured meat by excluding the term from the definition of “meat.”
  • The Act became effective on October 1, 2020, and Turtle foods filed a complaint less than a week later. The company based its complaint on First Amendment freedom of speech guarantees, as well as the Fourteenth Amendment’s Due Process Clause.  The company also alleged that the purpose of the Act was to prohibit “current and intended speech.”  Although Louisiana has not taken any enforcement action against food producers, Judge Jackson concluded that the risk of enforcement is substantial.  The law provides that violators may be fined $500 per day, per offense.
  • On March 29, 2021, the U.S. Court of Appeals for the Eighth Circuit concluded that that the State of Missouri is not barred from enforcing its 2018 state law that makes it a crime for vegan food producers to imply that their products contain real meat.  However, upon affirming the lower court’s ruling that denied plaintiff Tofurky Company’s (Tofurky) motion for preliminary injunction, the Eight Circuit stated that Tofurky failed to show that the law applies to its products or that Tofurky is at risk of enforcement, as the company already informs consumers that its products are made from plants, rather than from animals.
  • Missouri’s law prohibits persons from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  In the lawsuit, plaintiffs alleged that the Missouri law violates their First Amendment rights, as it criminalizes the word “meat” and unfairly restricts how manufacturers can sell meat alternatives.  After filing the complaint, plaintiffs filed a motion for a preliminary injunction arguing that Missouri’s law could result in criminal charges against Tofurky, which sells “veggie burgers” and other similar products, while the case is being heard in court.
  • The lower court concluded that plaintiffs had not shown a substantial likelihood of success on the merits of their First Amendment claim because the law only prohibits misleading speech, not their commercial speech.  Further, the lower court cited a state guidance document that stated companies are only in violation of the statute if their marketing and labeling do not include “appropriate qualifiers,” such as “plant-based,” “veggie,” “lab-grown,” or “lab-created.”
  • Although the Eighth Circuit denied the injunction, it allowed the suit to move to trial on the merits.  A number of states, including Mississippi and Arkansas, have enacted laws to prohibit marketing a product as “meat” if it is not derived from livestock or poultry.  We will continue to monitor any developments.
  • As our readers are aware, a number of states have enacted laws to prohibit marketing a product as “meat” if it is not derived from livestock or poultry and that several of these laws—including ones in Mississippi, Missouri, and Arkansas—have been challenged in court. (Other states that have enacted similar laws include Louisiana, North Dakota, South Dakota, Oklahoma, and Wyoming.)
  • The Arkansas Truth in Labeling Law (Act 501) includes the following definitions:
    • Beef: the flesh of a domesticated bovine, such as a steer or cow, that is edible by humans
    • Pork: the flesh of a domesticated swine that is edible by humans
    • Poultry: domestic birds that are edible by humans

Under this law, misbranding or misrepresenting an agricultural product can result in a fine of up to $1,000. As we previously reported on this blog, two days before the Arkansas law was scheduled to become effective, on July 22, 2019,  the American Civil Liberties Union (ACLU), The Good Food Institute, the Animal Legal Defense Fund, and Tofurky filed a lawsuit in the U.S. District Court for the Eastern District of Arkansas claiming that Act 501 violated the First and Fourteenth amendments.

  • Earlier this month, the Plaintiffs asked the court to issue a preliminary injunction to stop enforcement of the law while the case is being decided (see Turtle Island Foods, SPC doing business as The Tofurky Company v. Nikhil Soman, in his official capacity as Director of the Arkansas Bureau of Standards, Case No. 4:19-cv-514-KGB). In response to Tofurky’s request, the Arkansas Attorney General’s office explained that since the lawsuit challenging the constitutionality of the labeling law was filed before the law was scheduled to take effect, the Arkansas Bureau of Standards decided not to enforce it yet and, therefore, there is no threat of irreparable harm to support an injunction (Vox Media).
  • U.S. sales of plant-based meat grew 37.1% between April 2017 and April 2019 to reach $801 million in the year ending in April 2019, reports the Good Food Institute. We will continue to monitor and report on legal and regulatory activity in this area.
  • Introduced January 10, 2019, Nebraska Legislative Bill 14 would prohibit “misrepresenting a product as meat that is not derived from livestock or poultry.” The bill, which was referred to the Agriculture Committee on January 14, was introduced by Sen. Carol Blood. “I’m not bringing this bill to tell people what they can and can’t eat. All I’m asking for is truth in advertising. It’s clear that meat comes from livestock, and livestock is our livelihood in Nebraska,” Blood told AP News.
  • Missouri was the first state to limit the use of the term “meat” to products derived from livestock or poultry (see Mo. Rev. Stat. § 265.494(7)). However, as previously reported on this blog, the Good Food Institute (GFI), the Animal Legal Defense Fund, the American Civil Liberties Union of Missouri, and Turtle Island Foods (Tofurky brand) have sued the state of Missouri, claiming the law violates the Free Speech Clause of the First Amendment, among other things.
  • While clean meat (muscle tissue cultured in vitro from animal cells that is also referred to as cell-cultured meat) is not yet commercially available, debates continue to take place on how to regulate it. Tennessee, Virginia and Wyoming have introduced measures to limit the use of the term “meat” that are similar to Nebraska’s LB 14, AP reports. And, the United States Cattlemen’s Association submitted a petition asking USDA to exclude cultured products from the definition of beef and meat (see our July 11, 2018 blog).
  • While FDA and USDA have announced that they will jointly regulate cell-cultured meat products (see our November 19, 2018 blog), details on how these products will be regulated have yet to be determined. In response to a request by FDA and USDA for  public input on the oversight of cell-cultured meat, GFI and seven cell-cultured meat companies jointly submitted comments that stated:
    • “Cell-cultured meat products should thus be required to use meat nomenclatures such as beef, pork, and chicken like their conventional counterparts, as these products will be designed to meet the product-specific characteristics in terms of composition, species, origin, nutritional profile and other applicable characteristics. This is essential to both consumer safety and transparency. Of course, consumers want to know what they are buying, and if cell-cultured meat products were labeled as something other than meat, this would cause confusion and make it harder for consumers to make informed purchasing decisions.”
  • We will continue to report on regulatory activity in this area.
  • As previously reported on this blog, the Good Food Institute (GFI), the Animal Legal Defense Fund, the American Civil Liberties Union of Missouri, and Turtle Island Foods (Tofurky brand) sued the state of Missouri over a new law, Mo. Rev. Stat. § 265.494(7), which prohibits labeling a product that is not derived from harvested production livestock or poultry as meat. No other state has enacted a similar law.
  • In the lawsuit, filed in the U.S. District Court for the Western District of Missouri on August 27, 2018, the plaintiffs argue that, “the Statute is a content-based, overbroad, and vague criminal law that prevents the sharing of truthful information and impedes competition by plant-based and clean-meat companies in the marketplace.” Furthermore, they claim that the Statute does not protect the public from potentially misleading information and, therefore, violates the Free Speech Clause of the First Amendment.
  • On October 30, those plaintiffs filed a motion for a preliminary injunction at the U.S. District Court for the Western District of Missouri, Central Division. The groups argued that the law should not be enforced until there has been a legal ruling on whether the statute is constitutional. Plantiffs’ request for a preliminary injunction comes just days after a joint FDA/USDA meeting to discuss the use of cell culture technology to develop products derived from livestock and poultry. While it is still unclear which agency will take the lead in the regulation of cell-culture meat products, with USDA Secretary Sonny Perdue stating there should be “bright lines” in carving out rules for FDA and USDA, it is without question that those agencies are moving toward regulation of these products at the federal level. Oversight and regulation at the federal level may likely impact the Missouri law, so we will continue to report on regulatory activity in this area.
  • The Good Food Institute (GFI), the Animal Legal Defense Fund, the American Civil Liberties Union of Missouri, and Turtle Island Foods (Tofurky brand) sued the state of Missouri over a new law, Mo. Rev. Stat. § 265.494(7), which prohibits labeling a product that is not derived from harvested production livestock or poultry as meat. The plaintiffs requested both a preliminary injunction and a permanent injunction preventing enforcement of the Statute, in addition to a declaration that the Statute is unconstitutional and attorneys’ fees.
  • By way of background, the Missouri House approved House Committee Bill 16 in April 2018, which would have banned companies from labeling lab-grown meat products or meat substitutes as meat (see our May 1, 2018, blog). While that bill died in a senate committee, a provision that prohibits “misrepresenting” a product that does not come from a slaughtered animal as “meat” was added to an omnibus bill. Missouri Senate Bills 627 & 925 were signed by the governor in June 2018 and are scheduled to take effect today, Aug. 28. A violation of the law can result in incarceration up to one year and a fine of up to $1,000.
  • In the lawsuit, filed in the U.S. District Court for the Western District of Missouri, the plaintiffs argue that, “the Statute is a content-based, overbroad, and vague criminal law that prevents the sharing of truthful information and impedes competition by plant-based and clean-meat companies in the marketplace.” Furthermore, they claim that the Statute does not protect the public from potentially misleading information and, therefore, violates the Free Speech Clause of the First Amendment.
  • The aim of the Statue, according to the plaintiffs, is to protect the animal agriculture industry from competition from plant-based meat and clean meat producers. The lawsuit mentions that Tofurky fears prosecution under the Statute since its labels include terms that are also applied to conventional meat, like “kielbasa,” “hot dogs,” “ham roast,” “burgers,” and “bologna.” The Missouri Cattlemen’s Association, which supported the Statute, said its concern isn’t with products like Tofurky that make clear that they are from plants but with how meat grown by culturing animals cells will be labeled (National Post).
  • While clean meat (muscle tissue cultured in vitro from animal cells) is not yet commercially available, debates are taking place on how to regulate it. As we mentioned in a previous blog, the United States Cattlemen’s Association submitted a petition asking USDA to exclude cultured products from the definition of beef and meat. Missouri is the first state to address this issue. We will continue to report on regulatory activity in this area.