1. On September 30, 2022, a federal Court permanently enjoined Arkansas from enforcing provisions of a state law (Arkansas Code § 2-1-305(2),(5),(6),(8),(9), and (10)) which would have prevented Plaintiff Tofurky from marketing or selling its plant-based meat products in the state with any name that uses a traditional meat term. (Turtle Island Foods SPC v. Soman, Case No. 4:19-cv-00514).

2. The Court, applying the Central Hudson doctrine for commercial speech, held that the law did not withstand First Amendment scrutiny. In particular, the Court held that the labeling of Tofurky’s products was not misleading because each product featured prominent disclosures which made it clear that the product was plant-based and not animal-based. Therefore, the government could not show that it was directly advancing its stated interest in protecting consumers from false or misleading labeling. Furthermore, the Court found that the ban was more extensive than necessary and amounted to an outright ban on non-misleading speech.

3. Notably, while Plaintiff was successful in its as-applied constitutional challenge (a challenge to the statute as applied in the particular case), the Court rejected a facial First Amendment challenge because there could be a set of circumstances where the law is valid as applied (i.e., if the law was applied to a company which did not include disclosures indicating that its product was plant based). Nevertheless, the Court’s reasoning makes clear that enforcement of the law against any company marketing plant-based meat products with appropriate qualifiers is unconstitutional.

Lauren Haas, Nicholas Prust, Frederick Stearns, and Emily Thomas also contributed to this article.