fake meat law reinstated on appeal: intentionally misleading commercial speech gets no protection

Turtle Island Foods, S.P.C. v. Strain, No. 22-30236 (5th
Cir. Apr. 12, 2023)

Reversing the district
, the court of appeals found that Tofurkey’s facial challenge to a
Louisiana anti-fake meat law failed because the law plausibly could be read
only to cover intentional deception.

Louisiana’s 2019 Truth in Labeling of Food Products Act bars,
among other things, the intentional “misbrand[ing] or misrepresent[ing of] any
food product as an agricultural product” through several different labeling
practices. Those practices include “[r]epresenting a food product as meat or a
meat product when the food product is not derived” from various animals.

Tofurkey’s products include plant-based “chick’n,” deli
slices, burgers, sausages, tempeh, and roasts. Each of its labels, while
employing meat-esque words like “sausage” or “burger,” prominently indicates
that the product is “plant-based.”

Tofurkey had Article III standing: it intended to engage in
conduct arguably affected by a constitutional interest. “Tofurky’s labels and
marketing— which no one contends are misleading or involve illegal activity—are
just the kind of commercial activity the First Amendment protects.” And its
intended actions were arguably proscribed by the law given its dictate that
“[n]o person shall intentionally misbrand or misrepresent any food product as
an agricultural product through any activity including:

[ . . . ]

(2) Selling a food product under
the name of an agricultural product.

[ . . . ]

(4) Representing a food product as
meat or a meat product when the food product is not derived from a harvested
beef, pork, poultry, alligator, farm-raised deer, turtle, domestic rabbit,
crawfish, or shrimp carcass. [similar for beef, pork, and poultry]

[ . . . ]

(9)       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.

The statute defines “misbrand” as “intentionally
identify[ing] or label[ing] a food product in a false or misleading way.” To
“misrepresent” also requires intention.

Louisiana argued that Tofurkey lacked standing because it
didn’t intend to mislead or to break the law. But “intent” can mean different
things, including intentionally making a statement that turns out to be
misleading. Thus, the law was arguably broad enough to cover Tofurkey’s conduct.
There was no explicit safe harbor for “meat-like, plant-based products as found
in similar statutes in other states. See, e.g., Okla. Stat. tit. 2 § 5-107 (‘[P]roduct
packaging for plant-based items shall not be considered in violation of [this
statute] so long as the packaging displays that the product is derived from
plant-based sources.’).”

And Tofurky faced a substantial (or credible) threat of
enforcement. In a pre-enforcement challenge “to recently enacted (or, at least,
non-moribund) statutes that facially restrict expressive activity by the class
to which the plaintiff belongs, [we] will assume a credible threat of
prosecution in the absence of compelling contrary evidence.” While Louisiana
conceded that Tofurky’s nine demonstrative labels do not violate the Act, it declined
to make any “representations as to whether any other label of Tofurky would be
violative of the provisions of the Act.” And nothing bound the state from
changing its mind and deciding Tofurky’s labels do violate the statute.

Merits: This was a facial challenge, which is a big deal. In
the commercial speech context, “[t]o succeed in a typical facial attack,
[Tofurky] would have to establish ‘that no set of circumstances exists under
which [the Act] would be valid,’ or that the statute lacks any ‘plainly
legitimate sweep.’”

Here, the law covered only speech that was completely
unprotected: actually misleading commercial speech. Courts are required “to accept a narrowing construction of a state law in order
to preserve its constitutionality.” The state’s preferred interpretation was
that the law prohibits a company from intentionally misleading a consumer by
claiming a product is made from beef, pork, poultry, crawfish, shrimp, meat,
sugar, or rice when it is not. These would be “actually misleading
representations” and thus not within the coverage of the First Amendment. The district
court erred by applying Central Hudson to its reading of the statute,
when it should have accepted this narrowing construction.


from Blogger http://tushnet.blogspot.com/2023/04/fake-meat-law-reinstated-on-appeal.html

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