As an increasing number of meat-labeling laws are enacted and go into effect, the alternative foods industry is gearing up to go on the offensive, including by filing suits to block the laws and potentially have them declared unconstitutional and unenforceable. In order to fight these battles, industry players such as The Tofurky Company have partnered with social-justice organizations such as the American Civil Liberties Union (ACLU). Lawsuits are currently pending in Missouri, Mississippi, and Arkansas.

Missouri was the first state to adopt a meat-labeling law targeting producers and sellers of plant-based and cell-cultured meats. In light of this, an official of that state was sued in federal court in 2018 by Turtle Island Foods (d/b/a The Tofurky Company) and the Good Food Institute (a 501(c)(3) nonprofit in the alternative foods space), alleging that the labeling law effects a deprivation of constitutional rights. Specifically, the lawsuit seeks injunctive relief against state authorities preventing them from enforcing the law, a declaration that the law is unconstitutional, and an award of costs and attorneys’ fees. As to constitutionality, Plaintiffs allege that the law violates First Amendment free-speech protections by prohibiting truthful statements about vegan and plant-based products—particularly the use of “meat analogue” terms to describe alternative products as replacements for conventional meat products—and effectively criminalizing significant speech. Additionally, Plaintiffs allege that the law violates the protections on interstate commerce under the dormant commerce clause doctrine (which controls a state’s ability to protect local economic interests from interstate competition), excessively burdening interstate commerce by reducing Tofurky’s business, detrimentally affecting consumer welfare within and without Missouri and the public interest to keep interstate commerce affordable and accessible. Plaintiffs also allege that the law wrongfully impinges upon due process by criminalizing the representation of a product as “meat” in a manner allegedly too unclear for an ordinary person to understand the delineation, while creating law too vague for state authorities to properly enforce.

The Missouri case has a somewhat twisted procedural history in which settlement once appeared possible. Indeed, in the past year, Missouri appeared to be willing to work with the plaintiffs to arrange a settlement to the lawsuit, potentially through agreed-upon amendments to the law. The case was in fact reported settled in January 2019. In July 2019, however, the parties reported to the Court that settlement talks had failed and requested that the lawsuit be scheduled to proceed. The Court recently ordered the parties to participate in mediation.

The Mississippi litigation was filed in a federal court in that state on July 1, 2019—the very date the state’s labeling law was set to go into effect. Similar to the Missouri case, the Plaintiffs in the Mississippi action are an alternative-foods company (Upton’s Naturals Co.) and a social-justice organization (the Plant Based Foods Association). Plaintiffs are suing state authorities on a free-speech claim similar to the Missouri speech claim, alleging that the law bans honest, accurate, and non-misleading commercial speech about alternative foods. They also seek an injunction against the enforcement of the Mississippi law and a declaration that it is unenforceable. This case is early in the litigation process. Following grant of the state’s unopposed motion to extend its time to answer, the state’s answer or pre-motion dismiss was due October 2, 2019.  

The most recent suit, concerning Arkansas’ labeling law, was filed in an Arkansas federal court on July 22, 2019—two days before that state’s law went into effect. This suit, like the Missouri litigation, is brought by The Tofurky Company. The complaint is highly similar to the complaint that Tofurky filed in Missouri, and seeks to enjoin enforcement of the law and have it declared invalid on constitutional grounds. As in the Missouri case, the constitutional provisions alleged to have been violated pertain to free speech, commerce, and due process. As far as content is concerned, however, the Arkansas matter necessarily differs from the Missouri and Mississippi cases in that the law in question provides only for a civil fine and not criminal penalties. This may impact the way the court would rule on Tofurky’s claims in this newest matter. Recently, the state has filed an answer to Tofurky’s complaint, generally denying Tofurky’s entitlement to relief and asserting that its law is constitutional. Tofurky has since moved for a preliminary injunction against enforcement of the law. The Court heard oral argument on this motion on October 7, 2019.

As still additional laws go into effect around the country, it is likely that additional industry participants will continue to sue on newly enacted laws in order to fight back against this serious threat to marketing and selling alternative foods. Since the contents of labeling laws may differ from state to state, however, court rulings on these laws will likely differ across jurisdictional lines.  And since a lot is at stake for industry participants here, alternative-foods companies that do not prevail in the trial courts may appeal from unfavorable rulings, potentially generating a new and inconsistent body of case-law across federal and state courts of appeal. It is even possible that the United States Supreme Court might one day be successfully petitioned to rule on the constitutionality of these laws, given the existence already of law at least suggesting that truthful, descriptive commercial speech—imagine describing falafel as “meaty”—may be constitutionally protected on free speech grounds. One thing is clear, though: alternative foods are not going away. Neither are their fans. Nor are their opponents.