Court Allows Texas Label Censorship Lawsuit to Proceed

Contact: media@aldf.org

SAN ANTONIO — The United States District Court for the Western District of Texas has ruled in favor of the Animal Legal Defense Fund (ALDF) and Good Food Institute on behalf of Tofurky and the Plant Based Foods Association (PBFA), denying the state’s attempt to dismiss in its entirety a lawsuit over a law that imposes vague and burdensome disclosure standards on companies producing plant-based meats, even when these products clearly comply with federal law. Plant-based meat products are clearly marketed and packaged, do not deceive consumers, and comply with federal regulations under the Food, Drug, and Cosmetic Act — yet they are the target of this protectionist state law, designed more to protect Texas animal producers than Texas consumers. The law went into effect on September 1, 2023.  

In August 2023, ALDF and the Good Food Institute filed this lawsuit alleging the law violates the dormant Commerce Clause, the Due Process Clause, the Supremacy Clause, and the First Amendment of the Constitution. Plaintiffs argue that the Texas law imposes additional burdensome, impractical, and unclear disclosure requirements on plant-based meat producers that go beyond federal law. Tofurky and PBFA also argued that there is an added patchwork of state-law labeling requirements — intended to make the sale of plant-based products impracticable on a nationwide basis. What’s more, in order to comply with the law, plant-based meat companies would need to redesign each product label and its corresponding marketing materials, which would prevent them from communicating the nature and contents of their products in a way that complies with federal law, and would eviscerate companies’ ability to market and sell products on a nationwide basis. The Texas law requires an additional disclaimer qualifying that plant-based products are not actually meat in the same (or larger) type size and prominence as any “surrounding type” on the front of product packages. 

“Texas has attempted to tip the scales in the marketplace toward animal products by adding unnecessary and unlawful requirements to products sold by plant-based producers that leave consumers with less choice and more confusion,” says ALDF Managing Attorney Amanda Howell. “Consumers have many reasons for wanting to choose plant-based products that align with their values — whether for the welfare of animals, environment, or their health — and we will continue to litigate this case in court to ensure they have a choice.”  

“It is gratifying to see a Court recognize the law, and the State’s legal feints, for what they are,” says Tofurky CEO Jaime Athos. “The purpose of this law is protectionist and unconstitutional. And, thanks to this ruling, the State cannot prevent us from proving that in court. The State of Texas chose to interfere with the rights of consumers to knowingly and intentionally consume the products they prefer — and with the rights of plant-based companies to meet that consumer demand. This law benefits no one other than animal agriculture special interests, who happen to be the source of these bills. It seems we finally have a court that refuses to allow protectionism and cronyism to stand in the way of legal tenets that have long formed the bedrock of our country. This ruling suggests that in Texas, anti-free market policies will not stand in the way of innovation and consumer choice.” 

 “This Texas law only serves to confuse and frustrate consumers in the state who are increasingly seeking out plant-based food options,” says PBFA Senior Director of Policy Marjorie Mulhall. “Indeed, plant-based retail sales in the U.S. have reached more than $8 billion, growing 79% over the past five years. PBFA and our partners will continue to fight for an even playing field for our member companies and their products.” 

“Texas consumers are not confused about the foods they purchase, and this law’s unconstitutional labeling requirements for certain producers do nothing to protect consumers,” says GFI Senior Regulatory Attorney Maddie Cohen. “We look forward to continuing to challenge Texas’s law so that consumers, not the government, are the ones to pick winners and losers in the marketplace.”  

Federal courts have recognized that the likelihood that consumers might be confused about plant-based naming conventions is “highly improbable” and “stretches the bounds of credulity.” The U.S. Ninth Circuit Court of Appeals analyzed naming conventions similar to Tofurky’s and found it implausible that consumers would “believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.” 

The Texas law is similar to earlier meat-labeling censorship laws aimed at curtailing the truthful commercial speech of plant-based food companies that have been passed in Arkansas, Louisiana, Missouri, and Oklahoma, among other states. A number of those laws were similarly challenged by Tofurky and ALDF. In December 2019, these organizations and the American Civil Liberties Union challenged the Arkansas law; the court halted its enforcement and determined that it was an unconstitutional restriction on Tofurky’s right to free speech. The U.S. Fifth Circuit Court of Appeals also determined that Louisiana’s law could only be applied in the far-fetched scenario in which a plant-based meat producer might attempt to intentionally trick consumers into thinking its products came from slaughtered animals — essentially rendering the Louisiana law irrelevant. In the Missouri and Oklahoma cases, the courts ruled the laws failed to apply to plant-based producers.