Lawsuits Keep Rolling Back Unconstitutional Vegan 'Meat' Bans
No one is confused about whether Tofurky is turkey.
Tofurky is a food that may be best known as, say, the meat-free entrée your cousin's vegan boyfriend insists on eating at the Thanksgiving table, potentially perturbing your cousin's carnivorous dad—the one who killed, gutted, scalded, plucked, brined, seasoned, stuffed, and roasted the actual turkey on the table.
One thing Tofurky and similar meat alternatives are not known for? Kicking ass. But that may be changing.
Last month, a federal court ruled an Arkansas law that banned makers of meat alternatives such as Tofurky from using commonly understood words to describe their products was unconstitutional.
"The law prohibited the labeling of any food product as 'meat' unless that food product was derived from livestock, and it banned such terms as 'veggie sausage' and 'veggie burger' from food labeling in Arkansas," the Northwest Arkansas Democrat-Gazette reported in the wake of the court's ruling. The same court had in 2019 granted Tofurky an injunction preventing the state from enforcing the law shortly after it took effect and the suit was filed.
The Arkansas law, U.S. District Court Judge Kristine Baker explained in her ruling, unconstitutionally barred Tofurky from "convey[ing] meaningful, helpful information to consumers about the products they are purchasing, and Tofurky's repeated indications that the food products contained in these packages contain no animal-based meat dispel consumer confusion."
The Arkansas suit is one of several filed by Tofurky and others—including other vegan-food producers and the American Civil Liberties Union, Good Food Institute, Animal Legal Defense Fund, Plant-Based Foods Association, and Institute for Justice—against several states that have adopted laws similar to that in Arkansas.
Last year, another lawsuit—this one filed by Upton's Naturals—forced Mississippi's agriculture department, which adopted rules similar to those in Arkansas at the behest of the state's powerful beef lobby, to backtrack and amend those rules.
"Under the new regulation, which officially took effect today, plant-based foods will not be considered to be labeled as a 'meat' or 'meat food product' if their label also describes the food as: 'meat-free,' 'meatless,' 'plant-based,' 'vegetarian,' 'vegan' or uses any other comparable terms," the Plant-Based Foods Association, which was also a plaintiff in the case, reported last year.
Also last year, Tofurky challenged a similar Oklahoma law. And earlier this year, a federal judge in Louisiana overturned that state's don't-say-meat-meat-alternative ban.
Why the sudden clamor to adopt rules against using some words to describe meat alternatives? Supporters of such laws typically claim they want to help consumers avoid confusion. But that argument's all hat and no cattle. Such laws sow confusion rather than mitigating it. Research and common sense suggest consumers aren't confused by terms such as "veggie burger" or the like. Worse, linguistic bans generally prohibit accurate and honest labeling even if—as the federal court in Arkansas found was the case with Tofurky's labeling—"the product [in question] also states on the label that it's 100% vegan, plant-based or meatless," Bloomberg News reported in 2019.
Ultimately, the basis of such laws can be tied to simple and pure protectionism. Indeed, the protectionist urge is strong, historically, among the powerful producers of animal products—including meat and dairy. For example, as I've discussed in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable and elsewhere, rent-seeking dairy interests have, over generations, leaned on lawmakers to force competitors to change the name and even the appearance of their foods. In Wisconsin, the state long forced makers of margarine—who compete with the dairy state's butter makers—to color their products pink. In New York, the state forced makers of non-dairy creamers to label those foods as "melloream"—whatever the hell that is.
Notably, though, this type of protectionism isn't wholly limited to meat-industry-led attacks on vegan competitors. As I explained in a 2019 column, Arkansas has sought to protect its dominant rice industry against competition from makers of riced cauliflower (a law I characterized at the time as "veg-on-veg crime").
The single most important fact to remember about these laws is that they seek to undermine the First Amendment to prop up sales for certain elements of the food industry. That's as unconstitutional as it is unwise. Such laws don't' serve the interests of consumers. After all, neither your hypothetical cousin's boyfriend nor your uncle was confused in the least by the differences between Tofurky and turkey. Indeed, it was those differences that drew them to choose those respective favored foods in the first place.