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Tofurky takes Arkansas to court over the word ‘meat’

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Under Arkansas law, beginning Wednesday, meatless meat products such as vegetarian hot dogs and plant-based deli lunch meat can no longer be called either of those things. In an effort to prevent consumer confusion, the state passed a law in March that imposes fines on companies making meatless meat if they use words that describe meat — such as “turkey” or “steak” or “bacon” — when describing products that aren’t derived from animals. The same goes for makers of nut-based milks, which risk a fine for using the word “milk,” and even cauliflower rice, which must be called “riced cauliflower,” instead.

But is the law really about consumer confusion, or is it about protecting the state’s meat, dairy and rice farmers? That’s what a lawsuit filed in U.S. District Court by the American Civil Liberties Union, Good Food Institute, Animal Legal Defense Fund and ACLU of Arkansas alleges.

According to the complaint, filed Monday, “The Act is a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products. It does nothing to protect the public from potentially misleading information. Instead, it creates consumer confusion where none existed before in order to impede competition.” The suit, filed on behalf of Turtle Island Foods, which does business as the Tofurky Co., says the act violates the free speech clause of the First Amendment by censoring companies that are truthfully describing their products. The suit also says the act violates the due process clause of the Fourteenth Amendment, and the dormant Commerce Clause, which affects interstate commerce.

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The lawsuit is not the first of its kind. Several states, including Louisiana, Missouri and Mississippi, have adopted laws governing the use of language regarding plant-based products, and vegetarian meat companies have filed suit in the latter two states. Labeling laws aren’t just an American thing, either: In April, a committee in the European Parliament passed an amendment prohibiting plant-based products from being labeled as steak, sausage, escalope, burger or hamburger. The proposal will be put to a vote by the European Parliament in the fall.

If states are worried about meat and dairy farmers losing ground to plant-based food companies, they have a good reason for concern: Nondairy milk sales increased 61 percent between 2012 and 2017. The investment firm UBS has projected that the market for plant-based meat will increase from $4.6 billion in 2018 to $85 billion in 2030.

People aren’t choosing veggie burgers because they’re being tricked into thinking they’re meat, say plant-based protein companies. They’re choosing them precisely because they are not meat, and mandating less-precise labeling (“veggie discs,” anyone?) will just make it harder for consumers to understand the flavor profile of the plant-based meat alternative they’re buying. “Tofurky Co. cannot accurately and effectively describe its products without comparison to the conventional meat products whose flavor profiles they are designed to invoke,” the suit says, noting that all of the company’s products clearly state they are meatless, and comply with the federal Food, Drug and Cosmetic Act’s labeling requirements.

Nikhil Soman, the director of the Arkansas Bureau of Standards, was named as a defendant in the suit. He declined to comment to The Washington Post.

“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. “The government should focus on genuine consumer protection problems instead of playing word games to benefit special interests at the First Amendment’s expense.”

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