AUSTIN - A section of the Texas Health & Safety Code that adds provisions for food labels for “analogue” meat products “violates the First Amendment and should be facially enjoined,” a federal court ruled on Jan. 28.
The owners of Tofurky along with the Plant Based Food Association brought the suit after the Texas Legislature passed Senate Bill 664, which amended Sections 431.0805 and 431.0082 of the code, which deal with definitions and misbranded food.
The officials representing the state, which include Attorney General Ken Paxton, claim that “Tofurky and PBFA’s labels can and do mislead traditional meat-eating customers into buying their product.”
Tofurky sells its 100 percent plant-based meat products nationwide, including in Texas, using terms like “chorizo” and “burger” alongside qualifiers like “all vegan” and “plant based” to show that its products are plant-based meats that can be served and consumed just like any other meats.
The court found that Tofurky does have an injury-in-fact, citing a Fifth Circuit ruling that already held “Tofurky’s labels and marketing . . . are just the kind of commercial activity the First Amendment protects.”
“Here, no evidence of misleading speech is present, and by contrast, the record demonstrates that Plaintiffs’ speech is not misleading,” the order states. “Plaintiffs have demonstrated that Tofurky’s labels clearly indicate its products are meat substitutes that are plant-based and vegan and, thus, are not misleading.
“Tofurky’s labels state in large print that the products are ‘plant-based’ and ‘vegan.’”
According to the order, Tofurky presented testimony showing that changing the physical labels would cost “many tens of thousands of dollars” because it would require writing off “as many as two years’ worth of packaging inventory,” as well as discounting existing products and buying new products and packaging.
“Plaintiffs have demonstrated that their labels could be perceived to violate SB 664, making them susceptible to enforcement,” the order states. “The Court finds that Plaintiffs’ claims are ripe.”
The court granted Tofurky and PBFA’s motion for summary judgment, finding that the “law is invalid in a substantial majority of all applications and is appropriately enjoined facially.”
The order was signed by U.S. District Judge Robert Pitman.
Case No. 1:23-cv-01032-RP
