In January, the United States District Court for the Western District of Texas held a Texas law related to labeling of analogue meat products was unconstitutional in Turtle Island Foods Inc. v. Shuford. [Read Order here.]
Photo via Like Meat on Unsplash
Background
In 2023, the Texas Legislature passed Senate Bill 664, a statute requiring specific labeling be included on any “analogue” meat products. The statute defines “analogue product” as “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.” See Tex. Health & Human Safety Code 431.0805. Further, the statute deems an analogue product misbranded unless it bears the following language in a certain size in close proximity to the name of the product on the label: analogue, meatless, plant-based, made from plants, or a similar qualifying term or disclaimer intended to clearly communicate the contents of the product to a consumer. See Tex. Health & Human Safety Code 431.082.
Litigation
Plaintiffs, manufacturers of Tofurky and the Plant Based Food Association (PBFA), a nonprofit trade association whose members manufacture and sell plant-based products filed suit claiming this statute was unconstitutional. Specifically, they argued the statute was preempted by federal law, violated the Supremacy Clause, violated the dormant Commerce Clause, violated the 14th Amendment Due Process Clause, and violated the First Amendment.
After some initial motion decisions related to the propriety of certain named defendants, the case came before the court on cross Motions for Summary Judgment.
Order on Summary Judgment Motions
First, the court addressed the issue of standing in this case, holding that both Turtle Island Foods and the Plant Based Food Association had standing to bring this suit and that the claims were ripe.
Next, the court turned to the Plaintiffs’ First Amendment claims.
Plaintiffs’ speech is not misleading.
Commercial speech is protected by the First Amendment if it is neither “misleading nor related to unlawful activity.”
Commercial speech cases have held that speech is only misleading when it deceives or is inherently likely to deceive. Statements that are only “potentially” misleading are protected by the First Amendment.
The court held Tofurky’s labels clearly indicate that their products are meat substitutes that are plant-based and vegan. Therefore, the court held, their labels are not misleading. Plaintiffs hired experts to conduct a survey of Texans, in which 96% correctly identified the meatless products were plant-based and not made from animals. The rate of accuracy was not higher where the meatless products had a label altered to conform with SB 664. In fact, the survey showed an increase in confusion for Beyond Meat Ground Beef when the label was modified in accordance with SB 664. Experts also reviewed existing literature, which similarly found no consumer confusion regarding plant-based product labels. The court also noted that in other cases challenging similar laws in other states, courts have found plant-based product labels do not cause confusion.
Defendants claimed that Tofurky and PBFA’s labels do mislead traditional meat-eating consumers into purchasing their products, but the court noted they did not offer any evidence in support of this assertion. Defendants did not conduct or review any studies on consumer understanding of plant-based meat labels.
Thus, there was no material dispute of fact that Plaintiffs’ labels are not misleading and do not deceive consumers.
SB 644 fails the three-part commercial speech test.
To restrict commercial speech, the government must satisfy a three-part test:
(1) the state must assert a ‘substantial’ interest in justifying the restriction;
(2) the restriction must “directly advance the governmental interest asserted; and
(3) the restriction must not be ‘more extensive than is necessary to serve that interest.
Here again, the court found in favor of the Plaintiffs.
First, the court found Defendant did not demonstrate that SB 664’s restrictions target a substantial government interest. Their stated interest, to protect consumers and ensure they understand the products they are purchasing, was undercut by their own representatives, who repeatedly stated they were unaware of any consumer confusion. This lack of ability to point to confusion is true, despite the fact that these meatless products have been in existence for decades.
Second, both federal and state consumer protection laws prohibit unfair or deceptive trade practices, including the sale of misbranded products. Were the State of Texas to receive complaints about confusion, they could enforce existing law to address such violations.
Third, Defendants offered no reason why the statute would advance the government interest asserted. They offered no evidence rebutting the survey results that the statutorily required language caused more consumer confusion.
Fourth, Defendants failed to show that SB 664 was not more extensive than necessary to meet the state’s interest. The state could enforce existing laws to meet it’s interest. It could require labeling of a smaller size than that required by the statute, as has been done in other states.
Based on this, the statute is unconstitutional as applied to the Plaintiffs in this case.
The statute is also facially unconstitutional.
Generally, to succeed on a facial challenge, a plaintiff must show not only that the statute is unconstitutional as applied to them, but also that there are no set of circumstances under which it could legally be applied. For First Amendment cases, the bar is slightly lower, requiring courts to ask whether “a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
First, courts look at the statute’s scope. As noted above, the law applies to non-misleading commercial speech.
Second, court look to determine which of the laws’ applications violate the First Amendment, and measure them against the rest. The constitutionally impermissible applications of the law substantially outweigh the permissible ones. This is particularly true because any misleading labels would be prohibited by other laws. Despite regulations prohibiting misbranded food being in place for decades, there was no evidence of consumer confusion over plant-based food labels.
Thus, the court found the law facially unconstitutional.
The court did not reach remaining claims.
Because the court held the statute violated the First Amendment, it did not reach the remaining claims.
Conclusion
It does not appear that an appeal has been filed at this time. As it stands, Texas will be unable to enforce SB 664’s labeling requirements for plant-based meat products in Texas.
