Background

In June 2019, Louisiana signed into law the “Truth in Labeling of Food Products Act”¹ (the Act). The Act prohibits, among other things:

• “Representing a food product as meat or a meat product when the food product is not derived from a harvested beef, port, poultry, alligator, farm-raised deer, turtle, domestic rabbit, crawfish, or shrimp carcass.”

• “Representing a cell cultured food product as a meat product.”

• Representing a food as rice and “affixing a label that uses the term “rice" in the name of the food product when the food product is not rice or derived from rice.”

• “Utilizing a term that is the same as or deceptively similar to a term that has been used or defined historically in reference to a specific agricultural product.”

While, the Act went into effect in October 2020, the Louisiana Department of Agriculture and Forestry (LDAF) has not sought to enforce any provisions of the Act to date.

Turtle Island Foods SPC, which does business as Tofurky Company, filed a lawsuit challenging the constitutionality of the Act, alleging the company’s speech was unconstitutionally chilled by the Louisiana law. In particular, Tofurky claimed to have “refrained from using certain words or images on marketing materials and packages and . . . removed videos from its website and social media” in an effort to comply with the Act.

Decision

The opinion granting summary judgment to Tofurky states: “Applying the Central Hudson test, the Act impermissibly restricts commercial speech because the speech at issue is not misleading, and while the governmental interest is likely substantial, the Act is more extensive than necessary to further the Government's interest.” See Attachment A.

While the first and second prongs of the Central Hudson test were met in the court’s view, the Act fails the third and fourth prongs of the test – whether the challenged regulation advances the government’s asserted interest and whether the regulation is no more extensive than necessary to further the government’s interest:

• Advancing the governmental interest. The court found compelling both (a) evidence indicating that consumers are not confused by Tofurky’s labeling and (b) the fact that the State was unable to produce evidence indicating that consumers are confused by such labeling. Therefore, reasons the court, the Act’s limitations on the commercial speech “likely do not directly advance the State’s interest of avoiding consumer confusion.” 

• Narrow tailoring of the regulation. The court found that the State “failed to address why alternative, less restrictive means, such as a disclaimer, would not accomplish its goal of preventing consumer confusion,” and therefore fails to meet the burden of demonstrating a reasonable fit between the regulation and the speech.

The state can appeal the decision. 

References

1 Louisiana Rev. Stat. §§ 3:4741-4746.