How better to celebrate the week of Thanksgiving than by taking a look at a lawsuit involving tofurkey?

Photo by Virginia Simionato on Unsplash

In October, Turtle Island Foods (“The Tofurkey Company”) and the Plant Based Foods Association filed and Amended Complaint in a  lawsuit against the State of Texas claiming that the newly enacted Texas meat labeling law is unconstitutional. Turtle Island Foods SPC v. Abbott was filed in the United States District Court for the Western District of Texas. [Read Amended Complaint here.]

Do note that this blog post outlines the claims made by Plaintiffs in their Complaint.  Defendants have not yet filed an Answer to these claims.

The Law 

Earlier this year, the Texas Legislature passed SB 664, “an act relating to the labeling of analogue and cell-cultured products.”  [Read bill here.]  The law amended current Health and Safety Code provisions governing food labeling and branding to specifically address labeling of analogue and cell-cultured food products.  This will be referred to as “the Texas law.”

Definitions

The SB 664 amendments to the law begin with several important definitions.  See Texas Health & Safety Code Section 431.0805.

• Analogue product:  a food product derived by combining processed plant products, insects, or fungus with food additives to approximate the texture, flavor, appearance, or other aesthetic qualities or the chemical characteristics of any specific type of egg, egg product, fish, meat, meat food product, poultry, or poultry product.
• Cell-cultured product:  a food product derived by harvesting animal cells and artificially replicating those cells in a growth medium in a laboratory to produce tissue.
• Close proximity:  immediately before or after the name of the product; in the line of the label immediately before or after the line containing the name of the product, or within the same phrase or sentence containing the name of the product.

Additionally, the statute defines the terms egg, egg product, fish, meat, meat food product, poultry, and poultry product based upon their federal law definitions and expressly states that none of these include an analogue product or a cell-cultured product.

Misbranded food  – Analogue product

The existing statute included a list of situations in which food may be considered “misbranded.”  See Texas Health & Safety Code Section 431.082.  The amended statute now includes the following language as constituting misbranded food:  an analogue product of meat, a meat food product, poultry, a poultry product, an egg product, or fish, unless its label bears in prominent type equal to or greater in size than the surrounding type and in close proximity to the name of the product one of the following:  (1) analogue; (2) meatless; (3) plant-based; (4) made from plants; or (5) a similarly qualifying term or disclaimer intended to clearly communicate to a consumer the contents of the product.  See id. Section 431.082(d-1).  In other words, an analogue product is misbranded unless it includes one of these 5 labeling options on the packaging in the manner prescribed by the Texas law.

Labeling cell-cultured products

The amended statute also includes a provision related to labeling of cell-cultured products.  See Texas Health & Safety Code Section 433.0415.  This requires cell-cultured products to be labeled in prominent type equal to or greater in size than the surrounding type and in close proximity to the name of the product using one of the following: (1) cell-cultured; (2) lab-grown; or (3) a similar qualifying term or disclaimer intended to clearly communicate to a consumer the contents of the product.

The Lawsuit

The Tofurkey Company and Plant Based Foods Association allege that the Texas law violates the First Amendment, dormant Commerce Clause, Due Process Clause, and the Supremacy Clause of the Constitution.  [Read Amended Complaint here.]  They claim the law “institutes an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards” on companies selling plant based/vegan products.  They also claim it imposes vague and unnecessary restrictions on the labeling of cell-cultured meat which will be labeled in accordance with federal statute and regulations from the USDA and FDA.

The lawsuit brings several specific constitutional claims.

Preemption

The Plaintiffs argue that the federal Food, Drug, and Cosmetic Act expressly preempts the Texas law’s disclosure requirements.  They argue that the Texas law imposes disclosure requirements as a part of product naming that are different from or in addition to the federal regulations governing statements of identity.  They argue this “frustrates Congress’s intent to create a uniform labeling scheme so that the food industry can market and label products efficiently in all 50 states in a cost-effective manner.” They claim the Texas law will create and contribute to a patchwork of separate and potentially conflicting labeling requirements for products in different states and frustrate plant-based producers’ ability to comply with state and federal requirements.

Violation of Supremacy Clause

Similar to the preemption argument, the Plaintiffs claim that the Texas law conflicts with the Food, Drug, and Cosmetic Act and “impedes the accomplishment and execution of the full purposes and objectives of federal law.”

Violation of the dormant Commerce Clause – Discrimination

The Plaintiffs contend that the Texas law discriminates against out-of-state producers of meat products in violation of the dormant Commerce Clause. They claim that the Texas law has a discriminatory purpose, namely, to protect in-state Texas animal-based meat producers from out-of-state plant-based and cell-cultivated meat producing competitors.   They claim the vast majority of plant based and cell-cultured producers are outside of Texas, meaning the Texas law operates as “an impermissible protectionist trade barrier, blocking the flow of goods in interstate commerce unless out-of-state producers comply” with the Texas law’s requirements. They claim that the Texas law’s labeling requirements impose significant burdens on producers and interferes with interstate commerce.

Further, the Plaintiffs argue Texas has no legitimate interest in protecting consumers from confusion through the Texas law because consumers are not confused by current practices. They claim there is no non-biased, empirical evidence to show that consumers are confused by current marketing and labeling of plant based products, let alone evidence to show the Texas law’s requirements would prevent any such confusion. Additionally, Plaintiffs claim, there are already federal regulations to ensure product names are truthful and not misleading such as requiring statements of identity on principal display panels.

Violation of the dormant Commerce Clause – Excessive Burden

Next, Plaintiffs claim that the Texas law imposes unreasonable burdens on interstate commerce that are “clearly excessive in relation to any legitimate local benefits.”  They claim that compliance with the Texas law would require “extensive and costly changes to plant-based meat products’ marketing and labeling practices.”  They estimate millions of dollars in changed marketing and packaging costs alone and claim there may be even more in lost market access and decreased sales. They also claim that the Texas law “may cause selling plant-based meat products to become cost-prohibitive nationwide and may prevent fledgling companies from reaching financial solvency.”

Plaintiffs allege the Texas law “presents out-of-state producers with a host of unpalatable choices: (1) choose to continue to have products sold in the State of Texas as packaged, at a substantial risk of ruinous liability; (2) design, produce, and distribute different, specialized marketing and packaging for products destined for Texas, creating a logistical nightmare in distribution channels that service neighboring states or with online retailers that reach Texas consumers; (3) change the entirety of their marketing packaging nationwide to comply with the Texas law, at considerable expense; or (4) refrain from marketing or selling products in Texas at all, including in non-Texas media markets and on online sales platforms that may reach Texas consumers, which may be practically impossible given the nature of food distribution in the United States.   The result of any of these options, they claim, will be to decrease the  number of plant-based meat companies providing products to consumers, at higher prices, which, they claim, was “likely the Texas law’s true purpose.”

These burdens, Plaintiffs argue, “clearly exceed any legitimate local benefit” and the law cannot be justified.

Violation of the Due Process Clause

Plaintiffs claim that the statute is unconstitutionally vague, thereby violating the Due Process Clause of the Constitution. They offer a number of examples of alleged vagueness including it being unclear whether the Texas law requires a second product name in addition to a product’s statement of identity and what constitutes “surrounding type” related to font size, for examples.

They claim the law “fails to provide persons of ordinary intelligence a reasonable opportunity to understand when or how their product labels violate the Texas law.”

Violation of the First Amendment

Plaintiffs claim the Texas law is a content-based regulation of speech as it prescribes two different sets of rules: one for those making plant-based or cell-cultured products and another for all other food producers including animal producers.  The law, they claim, favors animal producers and targets plant-based/cell-cultured producers for disfavored treatment.  Plaintiffs allege the required disclosures are unreasonably burdensome and that there is no substantial interest served by the Texas law.

Declaratory Judgment

Finally, the Plaintiffs seek a number of declaratory judgments from the court depending on the court’s decision in the case.  For example, should the court determine that the Texas law does not prohibit Tofurkey’s labels or those of other plant-based meat producers because their conduct complies with the law, they seek a judgment declaring so.  Other requested declarations should the court find they exist include that the Texas law does not require disclosures different from or in addition to federal law, that the Texas law requires disclaimers in the same size and prominence in the name of the product, that the name of the product is synonymous with “statement of identity” under federal law, and that the Texas law does not apply to marketing or advertising materials.

Relief

Plaintiffs request the law be declared unconstitutional, both preliminary and permanent injunctive relief, declaratory relief, attorney’s fees and costs, and any other relief the court deems proper.

Answer

The Defendants have not yet filed an Answer in this case.  One will likely be forthcoming soon.

Thoughts

As I read the Complaint, I was struck by how many of the arguments are similar to those made by the National Pork Producers Council in NPPC v. Ross, the US Supreme Court lawsuit challenging California’s Proposition 12.   Read more here.  In NPPC, the meat industry argued that the requirements of Proposition 12 discriminated against out-of-state producers and imposed an excessive burden on interstate commerce.  Here, it is the plant-based producers making similar arguments while claiming the Texas law is designed to protect the meat industry.

Keep in mind, Texas is not the only state to pass this type of law, and this is not the only legal challenge to a state meat labeling law.  The Penn State Center for Agricultural and Shale Law has a website with great overviews and the status of pending lawsuits around the country related to state labeling requirements.  It is interesting to note that in several states, the challenge to the meat labeling law was filed by the same plaintiffs as the Texas lawsuit.