Louisana’s “Truth in Labeling of Food Products Act” adopted in 2019 does not violate any constitutional guarantees. It is also no threat to the business practice of the Hood River, OR-based Turtle Island Foods or its Tofurky brands.

A ruling by the U.S. Court of Appeals for the 5th Circuit has reversed a lower court ruling that found the labeling law violated commercial speech rights of producers like Turtle Island Foods that produce and package plant-based meat substitutes.

Turtle Island Foods was founded in 1980 and has long produced Tofurky brand products, which are popular vegetarian and vegan alternatives to turkey and other meat products.

In a 3-0 decision, the 5th Circuit reversed the March 2022 ruling by federal Judge Brian Jackson that went against Louisana. The labeling law prohibits mislabeling a meat or meat product produced without beef, pork, poultry, and the like are not present.

Tofurky products are labeled as such items as “hot dogs,” “burgers” or “sausages” but also are prominently labeled as “plant-based.”

“Everyone agrees that Tofurky does not intentionally misrepresent its products as meat and does not intend to start,” said Circuit Judge Brown Clement. But the 3-judge appeals panel also recognized Tofurky’s concern:

“Tofurky markets and sells its products in Louisiana. But now, thanks to the Act, Tofurky believes it operates under a constant threat of enforcement. Per its CEO, Tofurky lacks the financial and logistical resources to create Louisiana-specific labels and cannot guarantee that any Tofurky products meant for sale elsewhere would be excluded from Louisiana. Further, changing Tofurky’s marketing nationwide would cost almost $1,000,000. Rather than do so, Tofurky has “essentially avoided saying anything new out of fear of enforcement and has refrained from using certain words and images on marketing materials and labels.” It has also “removed content from [its] website and online marketing out of fear of enforcement . . . .”

The judges clearly found Tofurky is on solid legal ground. “We, like the district court, agree. Tofurky’s labels and marketing — which no one contends are misleading or involve illegal activity — are just the kind of commercial activity the First Amendment protects,” the ruling says.

The appellate court also speculates on what happens from here as the opinion says:

“Tofurky plainly belongs to a class that is facially restricted by the policy: it is a company that labels, markets, and sells food products in Louisiana. So, we assume a credible prosecutorial threat absent compelling evidence to the contrary.

“Nothing here compels a different conclusion. The (Agriculture) Commissioner admits that his office has formulated rules and regulations for the Act’s implementation. Once this case ends, he plans to begin enforcement.

“While the State insists that Tofurky’s nine demonstrative labels do not violate the Act, it nevertheless declines to make any “representations as to whether any other label of Tofurky would be violative of the provisions of the Act.” Even the State’s disclaimed intent to penalize the nine labels is not compelling. 

See Speech First, 979 F.3d at 336 (holding as “not compelling” evidence that the policymaker “lack[ed] any intention to penalize the intended conduct of [the plaintiff’s] members”). And besides, nothing binds the Commissioner here—he (or a future holder of his office) could change his mind and decide Tofurky’s labels do violate the statute.”

Lawyers for both sides expressed satisfaction with the outcome of the appeal. The state was pleased with the fact the court understood the Legislature’s intention in passing the law. The plant-based food producer said the decision puts to rest some of the fears it had about the law.

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