Food labeling on products sold by Tofurky, which sued the state in July, are not “inherently misleading,” U.S. District Judge Kristine Baker said in her decision, issued Wednesday, Dec. 11.
“We are pleased that the court blocked this unconstitutional law from being enforced while our underlying lawsuit proceeds, so that consumers can continue to have access to familiar plant-based products in Arkansas for the foreseeable future,” Tofurky CEO Jaime Athos said.
Rebecca Jeffrey, spokesperson for Arkansas Attorney General Leslie Rutledge, said Rutledge is “disappointed” by the decision but is still determining “next steps.” The injunction means Arkansas cannot enforce the law while the lawsuit proceeds.
“The state appears to believe that the simple use of the word ‘burger,’ ‘ham,’ or ‘sausage’ leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label,” Baker said, adding that each label has “the letter ‘V’ in a circle on the front of the packaging, a common indicator that a food product is vegan or vegetarian.”
After looking at seven Tofurky product labels, including “Slow Roasted Chick’n,” “Original Sausage Kielbasa,” “Hot Dogs,” and “Vegetarian Ham Roast,” the judge concluded consumers had ample information to determine the products were not made from animals and granted Tofurky an injunction on its claim the law violated the First Amendment.
“The court concludes that Tofurky is likely to prevail on the merits of its argument that the labels’ repeated indications that the food products contained in these packages contain no animal-based meat dispel consumer confusion and render the speech not inherently misleading,” Baker said.
The judge said there was “no indication” any consumers were confused by Tofurky’s labels and said Tofurky faced “irreparable harm” without an injunction stopping the enforcement of the law.
“Given the number of Tofurky products throughout Arkansas and the fact that each violation of Act 501 could result in a fine up to $1,000, Tofurky likely faces ruinous civil liability, enormous operational costs, or a cessation of in-state operations were Act 501 enforced against it,” the judge said.
Arkansas had not taken any enforcement action since the law's passage in March, choosing to wait until the constitutional challenge was resolved.
The judge offered a possible pathway for future legislation if the current law is ultimately struck down by the courts.
“As opposed to the prohibition in Act 501, the state could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose,” she said.
Other states have taken similar steps to stop plant-based products from using meat-related terms. A federal judge upheld Missouri’s law in October, while in Mississippi, the Plant-Based Foods Association and Upton’s Naturals dropped a lawsuit against the state after it changed the language in its law to allow advertising of plant-based foods as meat if they contain other descriptors such as “meat-free,” “meatless,” “plant-based,” “vegetarian,” “vegan” or other comparable terms.
PBFA recently released the “first-of-its kind standard for the labeling of plant-based meat alternatives,” the group said Dec. 10. “The goal of the voluntary standard is to promote consistency in labeling across the plant-based meat category, which grew by over 10% last year in grocery stores and is now featured in numerous chain restaurants across the country,” PBFA said.
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