OKLAHOMA CITY — On Nov. 10, the Animal Legal Defense Fund filed a complaint on behalf of Tofurky and the Plant Based Foods Association challenging an Oklahoma law under the dormant Commerce Clause, the Due Process Clause, and the Supremacy Clause of the Constitution. The challenged law imposes vague and burdensome disclosure standards on companies producing plant-based meats and also targets all products sold in Oklahoma if they use “meat” terminology — even when accompanied with language that makes clear the products are 100 percent plant-based. These products are clearly marketed and packaged, do not deceive consumers, and comply with federal regulations under the Food, Drug and Cosmetic Act — yet they are the target of the Oklahoma law. The law became effective on November 1, 2020.
The lawsuit, filed in U.S. District Court for the Western District of Oklahoma, argues that the Oklahoma law imposes additional burdensome, impractical, and unclear disclosure requirements on plant-based meat producers that go beyond federal law. Tofurky also argues there is an added patchwork of state-law labeling requirements — intended to make the sale of plant-based products impracticable on a nationwide basis. What’s more, in order to comply with the law, plant-based meat companies would need to redesign each product label and their corresponding marketing materials. The Oklahoma law requires an additional disclaimer qualifying that their plant-based products are not actually meat in the same type size and prominence to the “name of the product.”
Federal courts have recognized that the likelihood of these types of names causing any consumer confusion is “highly improbable” and “stretches the bounds of credulity.” The Ninth Circuit used similar naming conventions as Tofurky’s to deride consumers’ claims of supposed confusion, saying that “[u]nder the same logic, consumers would also have to believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”
“This is yet another unconstitutional attempt to single out plant-based producers and prevent them from competing on a level playing field with animal producers, despite the fact that customers increasingly want food products that are better for the well-being of animals, the environment and human health,” says Animal Legal Defense Fund Executive Director, Stephen Wells. “Given how animal agriculture heightens the risk of spreading new zoonotic diseases and knowing the large amount of emissions the industry releases, it’s not the time to remove consumer choice when these issues are front and center.”
“The plant-based industry has been experiencing enormous growth in recent years precisely because consumers are actively seeking out better food options,” said Jaime Athos, President and CEO of Tofurky. “They want foods that are better for the planet and for their own health and are using their dollars to vote for a better, more sustainable future. This Oklahoma law is ultimately not about protecting consumers. It’s about limiting their choices in a nakedly protectionist attempt to shore up animal agriculture industries. Plant-based consumers are some of the most well-informed and thoughtful about their food choices and it is insulting to assert — without any evidence I might add — that they are choosing plant-based products over and over at store shelves because they have been deceived. Tofurky is here to challenge this disingenuous legislation not just on behalf of our industry, but ultimately to protect our consumers’ right to make choices that are healthier for their bodies and more congruent with their values.”
The Oklahoma law is similar to meat-labeling censorship laws aimed at curtailing the truthful commercial speech of plant-based food companies, which have been passed in Arkansas, Missouri, Louisiana, and other states. A number of those laws face similar legal challenges by Tofurky and the Animal Legal Defense Fund. In December 2019, these organizations and the American Civil Liberties Union challenged the Arkansas law; the court halted its enforcement and determined that it was likely an unconstitutional restriction on Tofurky’s right to free speech.