Brian Hauss is a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. This was originally published on the ACLU blog.
The state of Arkansas thinks you’re confused about whether a veggie burger comes from a cow. In fact, it thinks you’re so confused that it passed a law making it illegal for companies to use words like “meat,” “roast,” and “sausage” to describe products that are not made from animals. Under the law, it doesn’t matter if those words are modified by “vegan,” “veggie,” or “plant-based.”
Rather than focusing on genuine consumer concerns — such as rising healthcare and education costs — Arkansas politicians have decided to take on an imaginary crisis: confusing a veggie burger for a hamburger, or almond milk for cow’s milk.
Why? To “protect the agricultural producers in the state,” one of the law’s proponents admitted.
Not only is Arkansas’ latest law absurd and unnecessary, it’s also unconstitutional. It violates the First Amendment by censoring truthful speech in order to protect the economic interests of the meat industry. Together with the Good Food Institute, the Animal Legal Defense Fund, and the ACLU of Arkansas, we filed a lawsuit today on behalf of Tofurky challenging the law.
From oat milk to meatless burgers, consumers are increasingly interested in alternatives to food products derived from live animals. Right now, most of those alternatives are made from plants. But companies are also investing in technologies that cultivate meat from animal cells, effectively allowing them to make beef without the cow. The meat and dairy industries are worried about these new competitors, identifying them as one of the “major challenges” the animal meat industry faces in 2018. But instead of competing in the free market, industry groups have enlisted friendly state legislatures and regulators to give them an upper hand. Over the past year, states throughout the country, including Missouri, Mississippi, Louisiana, and South Dakota, passed a new wave of “truth in labeling” laws that prohibit companies from using terms like “veggie bacon,” “cauliflower rice,” or “almond milk.”
The laws’ proponents insist that they’re just trying to prevent consumers from being misled. One former FDA commissioner memorably declared that almond milk is a contradiction in terms because “almonds don’t lactate.” But consumers know that, of course, and it’s absurd to suggest otherwise. As Republican Senator Mike Lee explained, “No one buys almond milk under the false illusions that it came from a cow. They buy almond milk because it didn’t come from a cow.”
Businesses often rely on figurative language to help communicate information about the flavor, texture, or appearance of their products. Consumers know that “peanut butter” is not made from cows, but the product’s name efficiently informs them that it spreads like butter. “Veggie bacon” is appealing to consumers who enjoy the distinctive taste, smell, and crunch of conventional bacon, but who prefer plant-based foods for any number of personal reasons. If companies are forced to describe their products as “savory plant-based protein,” consumers are likely to be much more confused about exactly what it is they’re putting on their plates. And that’s the real purpose of these label censorship laws: creating confusion to protect favored economic interests.
But the First Amendment does not allow the government to censor speech in order to pick winners and losers in the marketplace. After all, consumers rely on the free exchange of truthful information to make their own choices. As the Supreme Court put it in a landmark decision recognizing constitutional protection for commercial speech, “[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.”
In other words, when the government plays word games to prevent businesses from communicating truthfully about their products, consumers are ultimately the ones who suffer.
Arkansas’ law, and similar laws in other states, must be struck down.