Suit backed by ACLU alleges labelling restrictions violate first amendment. 

By Tim Nelson
July 24, 2019
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It’s no secret that plant-based alternatives to meat and dairy products are on the rise. That’s led some states to pass controversial labelling laws, which aim to protect real meat and dairy products by preventing their vegan competitors from using certain marketing terms. Now, an ACLU-backed lawsuit is challenging Arkansas’ newly-enacted “truth in labelling” bill in what could be a decisive moment for plant-based food companies and their competitors. 

On Monday, July 22nd, two days before Arkansas’ law was to take effect, the American Civil Liberties Union, Good Food Institute, Animal Legal Defense Fund and ACLU of Arkansas filed a suit in U.S. District court on behalf of Tofurky Co. It alleges that the Arkansas bill in question isn’t about protecting confused consumers from accidentally grabbing a veggie “burger”, but about protecting meat, dairy, and rice farmers (Arkansas’ labelling legislation is the first to include provisions about mislabelled “rice”) from competition at the expense of the first amendment rights of companies selling plant-based alternatives. 

Watch: Is Nut Milk Really Milk?

Those involved with the lawsuit argue that no reasonable consumer is actually confused by the absence of labelling laws. “It’s absurdly patronizing that the government of Arkansas is asserting that the people of Arkansas can’t tell a ‘veggie burger’ from a ‘hamburger,’ or a ‘tofu dog’ from a ‘hot dog,’” ACLU attorney Brian Hauss said in a statement quoted by The Washington Post. “The government should focus on genuine consumer protection problems instead of playing word games to benefit special interests at the First Amendment’s expense.”

Given the plaintiffs’ assumption that a reasonable consumer would understand that a product labelled as a veggie burger doesn’t contain beef, the suit alleges that the law, which forbids the use of terms like “burger”, “meat”, or “milk” for products derived from plants, would instead create confusion in supermarkets. 

Specifically, the suit posits that “Tofurky Co. cannot accurately and effectively describe its products without comparison to the conventional meat products whose flavor profiles they are designed to invoke,” also noting that the company’s products are already labelled as meatless and comply with federal Food, Drug and Cosmetic act labelling requirements. 

For their part, producers of (real) meat, dairy, and rice in Arkansas argue the protectionism is necessary to prevent upstart plant-based companies from piggybacking on associations with the real thing while distorting the idea of what “milk” or “rice” really means. 

“That's not milk," Arkansas rice farmer John Hamilton said in his testimony supporting the bill earlier this year, according to the Arkansas Democrat Gazette. "And I don't want to see rice get into a situation where we're having to fight this fight for 20 years like the dairy [industry].” 

It’s unclear how quickly the case will progress, or what might result from it. But with other southern states like Louisiana, Missouri, and Mississippi putting similar laws on the books— and the market for plant-based options expected to grow almost exponentially in the years ahead— any ruling is sure to have implications far beyond Arkansas’ borders. 

 

 

 

 

 

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