Turtle Island Foods v. Strain

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TURTLE ISLAND FOODS SPC CIVIL ACTION

VERSUS

MICHAEL G. STRAIN, NO. 20-00674-BAJ-EWD

in his official capacity as Commissioner

of Agriculture and Forestry

RULING AND ORDER

Before the Court are the parties’ Cross-Motions for Summary Judgment

(Doc. 36; Doc. 37). The Motions are opposed. (Doc. 39; Doc. 45). Plaintiff filed a Reply

Brief. (Doc. 46). Following a hearing on the matter, the parties filed supplemental

briefing. (Doe. 51; Doc. 52). For the reasons stated herein, Plaintiffs Motion is

GRANTED and Defendant’s Motion is DENIED.

I. BACKGROUND

A. Facts

This case concerns Louisiana’s 2019 Act No. 273, entitled the “Truth in

Labeling of Food Products Act,” Louisiana Rev. Stat. §§ 3:4741-4746. (Doc. 37-1, 9 1;

Doc. 45-1; Doc. 36-2, { 1; Doc. 39-1, § 1). The Act was signed into law on

June 11, 2019, with an effective date of October 1, 2020. (Doc. 37-1, § 1; Doc. 45-1).

The Act provides:

B. No person shall intentionally misbrand or misrepresent any food

product as an agricultural product through any activity including:

(1) Affixing a label to a food product that is false or misleading.

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

-(8) Representing a food product as an agricultural product for which

a definition and standard of identity has been provided by the

Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.,

unless:

(a) The food product conforms to the definition and standard.

(b} The label of the food product bears the name of the food

specified in the definition and standard and includes the

common names of optional ingredients other than spices,

flavoring, and coloring present in the food as regulations

require,

(4) Representing a food product as meat or a meat product when the

food product is not derived from a harvested beef, port, poultry,

alligator, farm-raised deer, turtle, domestic rabbit, crawfish, or

shrimp carcass.

(5) Representing a food product as rice when the food product is not

rice.

(6) Representing a food product as beef or a beef product when the

food product is not derived from a domesticated bovine.

(7) Representing a food product as pork or a pork product when the

food product is not derived from a domesticated swine.

(8) Representing a food product as poultry when the food product is

not derived from domesticated birds.

(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.

(10) Affixing a label that uses the term “rice” in the name of the food

product when the food product is not rice or derived from rice.

(11) Representing a cell cultured food product as a meat product.

(12) Representing a food product as sugar when it is not an unaltered

plant-based simple sugar or sucrose.

La. Rev. Stat. § 3:4744(B).

Plaintiff produces and packages plant-based meat products that are marketed

and sold in Louisiana and nationwide. (Doc. 37-1, { 5; Doc. 45-1). Plaintiffs labels

and marketing materials clearly state that its products are plant-based, meatless,

vegetarian, or vegan, and accurately list the product’s ingredients. (Doc. 87-1,

6-7; Doc. 45-1),

In response to the Act, Plaintiff has refrained from using certain words and

images on marketing materials and packages and has removed videos from its

website and social media. (Doc. 37-1, § 11; Doc. 45-1). It would be “incredibly

expensive” for Plaintiff to create specialized labels for products sold in Louisiana or

to change its labeling and marketing nationwide. (Doc. 87-1, § 12; Doc. 45-1).

The Louisiana Legislature designated the Department of Agriculture and

Forestry (LDAF) Commissioner to administer and enforce the provisions of the Act.

(Doc. 36-2, § 2; Doc. 39-1, 2). The Commissioner and his staff have formulated rules

and regulations to enforce the provisions of this law. (Doc. 36-2, | 3; Doc. 89-1, 4 3).

To date, the Commissioner has not sought to enforce the provisions of the Act.

(Doc. 36-2, 4; Doc. 39-1, ¥ 4).

No federal agency has brought any enforcement action against Plaintiff for the

misleading use of “meat” or related terms to describe plant-based meats based on its

food labels or marketing materials. (Doc. 37-1, 10; Doc. 45-1). The LDAF has not

received any complaints from consumers about Plaintiffs labels. (Doc. 37-1, 9 8;

Doe, 45-1). The LDAF has also not received any complaints from consumers about

labels for plant-based meat products or cell cultured food products, and the State of

Louisiana has not investigated any such labels. (Doc. 37-1, 4 9; Doc. 45-1).

Defendant has reviewed Plaintiffs labels and determined that they do not

violate the Act. (Doc. 36-2, 4 5; Doc. 39-1, 5). Defendant asserts that Plaintiff has

not been cited for violating the Act or threatened with enforcement. (Doc. 36-2, { 6).

Plaintiff disputes that it has not been threatened with enforcement because it avers

that the statute itself is a threat. (Doc. 39-1, ¢ 6).

B. Procedural History

On October 7, 2020, Plaintiff filed suit against Defendant, asserting

jurisdiction under 28 U.S.C. §§ 1881 and 13438(a). (Doc. 1, { 7). The parties then filed

cross-Motions for Summary Judgment. (Doc. 36; Doc. 37).

II. LEGAL STANDARD

A court may grant summary judgment only “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). A dispute regarding a material fact is “genuine”

if the evidence is such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

ruling on motions for summary judgment, courts are required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v, Zenith Radio Corp., 475 U.S. 574, 587 (1986); Coleman

v. Hous, Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997).

To survive summary judgment, however, the nonmoving party must do more

than allege an issue of material fact: “Rule 56(e) ... requires the nonmoving party to

go beyond the pleadings and by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is

a genuine issue for trial.” Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402

(5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “Rule 56

does not impose upon the district court a duty to sift through the record in search of

evidence to support a party's opposition to summary judgment.” Aagas v.

Tenn. Gas Pipeline Co., 1386 F.8d 455, 458 (5th Cir. 1998) (citations and quotation

marks omitted). A party that fails to present competent evidence opposing a motion

for summary judgment risks dismissal on this basis alone. F.g,, Broussard v.

Oryx Energy Co., 110 F. Supp. 2d 582, 5386 (H.D. Tex. 2000) (“Plaintiff produced no

genuine issue of material fact to prevent the granting of Defendant's Motion, and

therefore, the Court could grant Defendant’s Motion for Summary Judgment on this

basis alone.”).

IH. DISCUSSION

A, Standing

Before the Court may proceed to the merits of this case, the Court must

determine whether Plaintiff has standing to challenge the Act. Defendant argues that

Plaintiff does not have standing because Plaintiffs labels are neither misleading nor

proscribed by the Act. (Doc. 45, p. 3). Accordingly, Defendant contends that Plaintiff

does not have an “actual injury” that is redressable by the Court. Ud.). Because there

is no concrete dispute between the parties, Defendant asserts that the Court does not

have jurisdiction. (fd.).

Plaintiff responds that it has standing for three main reasons: (1) the plain

language of the Act applies to Plaintiffs speech; (2) Plaintiff has a reasonable fear of

enforcement; and (8) Plaintiffs intended commercial speech has been chilled by the

Act. (Doc. 39, p. 8-5).

i. Legal Standard

To establish standing, a plaintiff must demonstrate (1) an “injury in fact” that

is “concrete and particularized” and “actual or imminent”; (2) is fairly traceable to the

defendant's actions; and (8) is likely to be redressed by a favorable decision. Barilla

v. City of Hous., Tex, 138 F Ath 427, 4381 (5th Cir. 2021) (citing Lujan □□□

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

In pre-enforcement cases alleging a violation of the First Amendment's

Free Speech Clause, the Supreme Court has recognized that chilled speech or

self-censorship is an injury sufficient to confer standing. Barilla, 13 F.4th at 431

(citing Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965); Va. v. Am. Booksellers

Ass'n, 484 U.S. 388, 392 (1988); accord Ctr. For Individual Freedom v. Carmouche,

449 F.3d 655, 660 (5th Cir. 2006); Hous. Chron. Publ'g Co. v. City of League City,

488 F.3d 618, 618 (5th Cir. 2007)). A plaintiff bringing such a challenge need not have

experienced “an actual arrest, prosecution, or other enforcement action” to establish

standing. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citing Steffel

Thompson, 415 U.S. 452, 459 (1974)). Instead, such a plaintiff may demonstrate an

injury-in-fact by showing that it: (1) has an ‘intention to engage in a course of conduct

arguably affected with a constitutional interest’: (2) its intended future conduct is

arguably proscribed by the policy at issue; and (3) the threat of future enforcement of

the challenged policy is substantial. Barilla, 13F 4that 482-34. (citing

Speech First, Ine. v. Fenves, 979 F.8d 319, 330 (5th Cir. 2020) (alterations in original)

(quoting Susan 8B. Anthony List, 573 U.S. at 161-64; citing Babbitt ov.

United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). The Court will analyze

each of the three prongs in turn.

ii. Discussion

a. Whether Plaintiff Intends To Engage In A Course Of

Conduct Arguably ‘Affected With A Constitutional

Interest’

First, Plaintiff asserts that its conduct constitutes protected commercial

speech and is therefore ‘affected with a constitutional interest.’ (Doc. 52, p. 3).

Defendant does not appear to dispute that this case involves a constitutional interest.

Accordingly, the Court finds that Plaintiffs intended conduct is arguably affected

with a constitutional interest.

b. Whether Intended Future Conduct Is Arguably

Proscribed By The Policy At Issue

Second, Plaintiff argues that “both its current and intended speech is

proscribed by the Act because the Act prohibits representing plant-based products []

using terms the Act defines as applying only to products derived from slaughtered

animals, without providing any safe harbor for labels that make clear that products

are derived from plants.” (Doc. 52, p. 3).

Defendant contends that Plaintiffs intended future conduct——labeling of its

products—is not proscribed by the Act. (Doc. 36-1, p. 8). Indeed, the Commissioner

has determined that nine of Plaintiffs labels for currently marketed products do not

violate the Act.! (Doc. 36-1, p. 8; Doc. 39, p. 6).

The Court finds that Plaintiff has presented a basis to find that its future

conduct is arguably proscribed by the Act. The Act specifically prohibits any person

from “intentionally misbrand[ing] or misrepresentling] any food product as an

agricultural product through any activity including:”

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

(3) Representing a food product as an agricultural product for which

a definition and standard of identity has been provided by the

Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 ef seq.,

unless:

(a) The food product conforms to the definition and standard.

(b) The label of the food product bears the name of the food

specified in the definition and standard and includes the

common names of optional ingredients other than spices,

flavoring, and coloring present in the food as regulations

require,

(4) Representing a food product as meat or a meat product when the

food product 1s not derived from a harvested beef, port, poultry,

alligator, farm-raised deer, turtle, domestic rabbit, crawfish, or

shrimp carcass.

(6) Representing a food preduct as beef or a beef product when the

food product is not derived from a domesticated bovine.

1 The labels that the Commissioner has determined do not violate the Act include nine of

Plaintiff's labels submitted to the Court. These nine labels are merely illustrative and do not

include all of Plaintiffs product labels. (Doc. 52, p. 4).

(7) Representing a food product as pork or a pork product when the

food product is not derived from a domesticated swine.

(8) Representing a food product as poultry when the food product is

not derived from domesticated birds.

(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.

(11) Representing a cell cultured food product as a meat product.

La. Rev. Stat. § 3:4744(B). The Act defines “meat” as:

“Meat” means a portion of a beef, pork, poultry, alligator, farm-raised

deer, turtle, domestic rabbit, crawfish, or shrimp carcass that is edible

by humans but does not include a:

(a) Synthetic product derived from a plant, insect, or other source.

(b) Cell cultured food product grown in a laboratory from animal

cells.

La. Stat. Ann. § 3:4748(10).

Plaintiffs use of “meat” terms to define non-meat products is arguably

proscribed conduct according to the plain language of the Act outlined above.

c. Whether The Threat Of Future Enforcement Of The

Challenged Policy Is Substantial

Accordingly, whether Plaintiff has standing turns on whether the threat of

future enforcement of the Act is substantial. Plaintiff argues that the threat of future

enforcement 1s substantial, relying on the Fifth Circuit’s decision in Barilla v. City of

Houston, Texas. 13 F.4th 427, 483 (6th Civ. 2021). Plaintiff argues that there, the

Circuit held that courts must assume a credible threat of prosecution in the absence

of compelling contrary evidence. (Doc. 52, p. 4 (citing Barilla, 13 F.4th at 482)).

Plaintiff also relies on the Fifth Circuit’s decision in Speech First, Inc. v. Fenves to

argue that declarations by enforcing officials showing a lack of intention to penalize

plaintiffs intended conduct in a pre-enforcement First Amendment challenge do not

qualify as “compelling contrary evidence” sufficient to overcome the presumption of a

threat of future enforcement. 979 F.3d 319, 888 (5th Cir. 2020), as revised

(Oct. 30, 2020). (Doc. 52, p. 5).

Contrarily, Defendant argues that the threat of future enforcement is not

substantial, relying on the following evidence. First, the Commissioner submitted an

Affidavit attesting that nine of Plaintiffs current labels do not violate the Act because

they are neither misleading nor do they constitute a misbranding.? (Doc. 36-3, 5;

Doc. 39, p. 6). Second, the Commissioner asserts that Plaintiff has never been cited

for violating the Act. (Doc. 36-1, p. 8). Third, the Commissioner has agreed not to

enforce the Act during the pendency of this lawsuit. Ud. at p. 6). Finally, the

Commissioner asserts that Plaintiff faces no threat of enforcement as the LDAF will

not retroactively determine that Plaintiffs nine labels violate the Act. (Doc. 51, p. 5).

Plaintiff responds that Defendant’s assurances do not remove the threat of

future enforcement because the labels that the Commissioner has determined do not

2 Specifically, Defendant argues that “Commissioner Strain has formally established that

[Plaintiff] will not face any threat of civil enforcement (there is no criminal penalty here) of

the [Act] because [Plaintiffs] labels presented to the [C]ourt are not violative of that law.”

(Doc. 51, p. 5). In his Affidavit, the Commissioner attested that the LDAF reviewed the labels

that Plaintiff presented to the Court and determined that they do not violate the Act.

(Doc. 36-3, 5). The Commissioner attested that “LDAF does not find [the labels] misleading

nor do they constitute a misbranding.” (/d.).

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violate the Act are merely illustrative, and do not include all of Plaintiffs product

labels. (Doc. 52, p. 4). Indeed, although the Commissioner has found that the nine

labels Plaintiff submitted to the Court de not violate of the Act, the Commissioner

“makes no representations as to whether any other label of [Plaintiff] would be

violative of the provisions of the Act.” (Doc. 36-1, n.1).

Plaintiff argues that it has a “serious intent” to engage in proscribed conduct

because it would have used certain marketing words and images but for the existence

of the Act, (Doc. 52, p. 3; Doc. 37-1, □□□ 11-12; Doc. 45-1). In response to the Act,

Plaintiff has already refrained from using certain words and images on marketing

materials and packages and has removed videos from its website and social media.

(Doc. 37-1, | 11; Doc. 45-1). Additionally, Plaintiff has a “depth of marketing” that

was not included in Plaintiffs illustrative list of labels provided to the Court that the

State may determine runs afoul of the Act, “including years of online marketing.”

(Doc 52, p. 5). Defendant does not dispute that it would be “incredibly expensive” for

Plaintiff to create specialized labels for products sold in Louisiana or to change its

labeling and marketing nationwide. (Doc. 37-1, | 12; Doc. 45-1).

The Court finds that the threat of future enforcement is substantial. “In pre-

enforcement cases alleging a violation of the First Amendment's Free Speech Clause,

the Supreme Court has recognized that chilled speech or self[-]censorship is an injury

sufficient to confer standing.” Barilla v. City of Houston, Texas. 13 F.4th 427, 431-32

(5th Cir. 2021). Here, Plaintiff has engaged in self-censorship as it has already

changed its marketing practices in Louisiana in response to the Act. Additionally,

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Plaintiffs speech has been chilled by the Act. The Commissioner’s determination that

nine of Plaintiff labels do not violate the Act does not persuade otherwise. The Court

does not doubt that the Commissioner will uphold his qualified agreement that he

will not seek enforcement of the Act regarding these labels. However, the

Commissioner expressly acknowledged that he may find Plaintiffs other labels

objectionable.? Accordingly, Plaintiff has no way of knowing whether its additional

current or future labels might violate the Act.4 Indeed, a new Commissioner may take

a different approach in response to the Act and seek enforcement against Plaintiff for

its vast array of labeling not included in its “illustrative” labels included in its

Complaint. In making this finding, the Court finds the following opinion informative.

In Speech First, the Fifth Circuit found that the defendant-university’s policies

hkely established a substantial threat of future enforcement against those in a class

whose speech was arguably restricted.5 979 F.3d 319, 338 (5th Cir. 2020), as revised

(Oct. 30, 2020). The Circuit emphasized that this likelihood is all that is necessary to

3 Indeed, even if the Commissioner reviewed all of Plaintiffs current labels, the threat of

future enforcement would still be substantial. The Commissioner’s Affidavit specifically

makes no representation regarding whether Plaintiffs additional current labels or future

labels might violate the Act. Accordingly, Plaintiff may suffer a chilling effect in bringing new

products to market, or in maintaining current products on the market that appear to run

afoul of the Act.

The Commissioner’s qualified disavowal of any future intention to enforce the Act against

Plaintiff appears arbitrary, as the plain language of the Act appears to proscribe Plaintiff's

conduct. Moreover, the Commissioner’s Affidavit to the Court does not have the binding effect

of a regulation. Not only could the current Commissioner change his mind, but a new

Commissioner could take a different course of action.

5 The Court notes that this decision was made at the preliminary injunction phase, and the

instant case is decided on summary judgment. Noting this distinction, the Court finds the

case informative.

12

establish the final element of an injury-in-fact for standing.

There, the court considered the defendant's “contrary evidence” to the

presumption of enforcement, including declarations establishing the defendant’s lack

of intention to penalize the intended conduct at issue and an absence of past

enforcement of the policy. /d. at 336. The Fifth Circuit found that the declarations

together with the absence of past enforcement was “not compelling” evidence. (“[T]his

evidence is not compelling.”). fd. The Circuit emphasized that the officials’ disavowal

of any future intention to enforce the policies at issue simply reinforced the open-

ended language in those policies, stating:

Even more to the point, if there is no history of inappropriate or

unconstitutional past enforcement, and no intention to pursue discipline

against students under these policies for speech that is protected by the

First Amendment, then why maintain the policies at all? At least, why

maintain the plethora of potential sanctions?

id. at 337-38 (Surely it reasonably implies that the University will protect and

enforce its verbal harassment policy as far as possible, but the distance to that

horizon is unknown by the University and unknowable to those regulated by it.”). The

court also expounded that “[p]ast enforcement of speech-related policies can assure

standing, but [| a lack of past enforcement does not alone doom a claim of standing.

fd. (citing Carmouche, 449 F.3d at 660 (Controlling precedent ... establishes that a

chilling of speech because of the mere existence of an allegedly vague or overbroad

[law] can be sufficient injury to support standing.”)).

The Court finds this case to be similar. Because Plaintiff has demonstrated a

“serious intent” to engage in proscribed conduct, Plaintiffs desired conduct is

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arguably proscribed by the Act, and the threat of future enforcement is substantial,

Plaintiff has a justiciable injury. Barilla v. City of Houston, Texas. 13 F.4th 427,

432-35 (5th Cir. 2021). Plaintiff has standing to challenge the Act.®

B. Whether the Act is an Unconstitutional Violation of Plaintiff's

First Amendment Right to Free Expression

i. Legal Standard

Although the Constitution protects commercial speech, that protection is more

limited than for most other forms of speech. Express Oil Change, L.L.C. □□□

8 The Court’s finding is bolstered by the Kighth Circuit’s holding in Turtle [sland Foods,

SPC vu. Thompson, 992 F.3d 694, 697 (8th Cir, 2021). There, the Eighth Circuit found that

Tofurky had standing to challenge a Missouri statute that criminalizes “misrepresenting a

product as meat that 1s not derived from harvested production livestock or poultry.” /d. The

Kighth Circuit apphed the same standard discussed here, noting that “[t]his is a forgiving

standard, satisfied so long as [plaintiffs’] ‘intended future conduct is arguably .. . proscribed

by the statute it wishes to challenge.” Jd. at 699. The Kighth Circuit found that although it

was not clear whether all of Tofurky’s intended commercial speech would be proscribed by

the Missouri statute, it was at least “arguable” at the early preliminary injunction stage of

the litigation. fd. at 700. The court also emphasized that because plaintiffs’ claim was “largely

a legal question” and involves the chill of “allegedly protected First Amendment expression,”

it was ripe for adjudication. Id.

In Turtle [sland Foods SPC v. Soman, the U.S. District Court for the Kastern District

of Arkansas found that Tofurky had standing to challenge a similar statute in Arkansas.

424 F. Supp. 3d 552, 566 (E.D. Ark. 2019). There, the State argued that Tofurky did not have

standing to challenge the Act because it was not faced with a credible threat of prosecution.

The court found that “[t]he State's arguments misunderstand what Tofurky must show to

demonstrate appropriate standing.” fd. at 566. In a pre-enforcement suit, “a plaintiff satisfies

the injury-in-fact requirement,” and thus has standing, “where [it] alleges ‘an intention to

engage in a course of conduct arguably affected with a constitutional interest, but proscribed

by a statute, and there exists a credible threat of prosecution thereunder.” Jd. Finding that

Tofurky had standing, the court emphasized that:

[F]here is nothing stopping the State from simply changing its mind and

deciding to prosecute Tofurky during the pendency of this litigation... Thus,

the credible threat of incurring significant liability for continued actions in

violation of [the] Act |] demonstrates sufficient injury and ripeness to grant

Tofurky standing. . .

Id. at 567. The court made this finding at the preliminary injunction phase.

14

Miss. Bd. Of Licensure for Pro. Engrs & Surveyors, 916 F.3d 483, 487 (5th Cir. 2019)

(citing Ohraltk v. Ohio State Bar Ass'n, 486 U.S. 447, 456 (1978)). The test for when

a government actor may regulate commercial speech was set forth in Central Hudson:

“(1) whether the commercial speech at issue concerns unlawful activity or is

misleading; (2) whether the governmental interest is substantial; (3) whether the

challenged regulation directly advances the government's asserted interest; and

(4) whether the regulation is no more extensive than necessary to further the

government's interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of NY.,

447 U.S. 557, 566 (1980). “Each of these latter three inquiries’—whether (1) ‘the

asserted governmental interest is substantial, (2) the regulation ‘directly advances’

that interest, and (3) the regulation ‘is not more extensive than is necessary to serve

that interest—must be answered in the affirmative for the regulation to be found

constitutional.” Express Oil Change, D.L.C., 916 F.8d at 492 (citing Thompson v.

W. States Med. Ctr., 535 U.S. 357, 367 (2002)).

“The party seeking to uphold a restriction on commercial speech carries the

burden of justifying it.” Express Oil Change, L.L.C, 916 F.3d at 487 (citing Bolger v.

Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 (1983)). This “burden is a ‘heavy’ one,”

and may not be “satisfied ‘by mere speculation or conjecture[.]’” Id.

ii, Discussion

Applying the Central Hudson test, the Act impermissibly restricts commercial

speech because the speech at issue is not misleading, and while the governmental

15

interest is likely substantial, the Act is more extensive than necessary to further the

Government's interest. Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566.

a. Whether the Commercial Speech at Issue is

Misleading

First, the Court must determine whether the commercial speech at issue is

misleading, Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566. Here, the parties agree

that Plaintiffs speech is not misleading. Defendant attested in an Affidavit that the

“LDAF does not find [Plaintiffs labels] misleading nor do they constitute a

misbranding.” (Doc. 45, p. 1-2). Accordingly, the first prong of the Central Hudson

test is met.

b. Whether the Governmental Interest is Substantial

Second, the Court must determine whether the asserted governmental interest

is substantial. The purpose of the Act “is to protect consumers from misleading and

false labeling of food products that are edible by humans.” La. Rev. Stat. § 3:4742.

Plaintiff agrees that the Government “undoubtedly has an interest in preventing

consumer deception, the ostensible interest behind the Act.” (Doe. 87-2, p. 17).

Accordingly, the second prong of the Central Hudson test is met.

c. Whether the Challenged Regulation Directly

Advances the Government's Asserted Interest

Third, Plaintiff argues that the Act fails to directly advance the State’s

interest. (Doc, 37-2, p. 17). Plaintiff argues that the State cannot show that the Act

advances its interest of preventing consumer confusion because there is no evidence

that consumers are confused by plant-based or cell-cultured meat product labeling.

16

(d.). In support of its argument, Plaintiff cites the lack of complaints, investigations,

or documents reflecting consumer confusion.’ Ud.). Plaintiff also cites the Declaration

of Jareb Gleckel, attorney and author of an empirical study entitled Are Consumers

Really Confused by Plant-Based Food Labels? An Empirical Study. (Doc. 37-4).8 (d.).

Plaintiff argues that the State cannot point to any studies, evidence, or statistics

concerning consumer confusion about plant-based or cell-cultured meat products.

(Doc. 37-2, p. 17).

Defendant responds that the State has chosen to prohibit the intentional

misrepresentation and misbranding of certain food products to directly advance its

substantial interest of protecting consumers. (Doc. 36-1, p. 16).

Plaintiff presents compelling evidence indicating that consumers are not

confused by its labeling. In response, Defendant fails to produce evidence indicating

that consumers are confused by Plaintiffs labeling. Therefore, the Act’s limitations

on Plaintiffs commercial speech likely do not directly advance the State’s interest of

avoiding consumer confusion. Presumably, the Act may advance the State’s interest

in other ways, apart from the instant facts. Regardless of whether the Act directly

advances the State’s interest, the Court finds that the Act is more extensive than

necessary to further the State’s interest. Accordingly, the outcome is the same.

? The undisputed facts in this case indicate that the LDAF has not received any complaints

from consumers about Plaintiffs labels or about labels for plant-based meat products or cell

cultured food products. The State of Louisiana has not investigated any such labels.

(Doc. 37-1, {| 8~9; see generally Doc. 45-1).

8 Plaintiff submitted the article to the Court for its consideration, which was published in the

Journal of Animal and Environmental Law, Vol. 12, No. 2 (Spring 2021).

17

d. Whether the Regulation is No More Extensive than

Necessary to Further the Government's Interest

Fourth, Plaintiff contends that the Act is more extensive than necessary to

serve the State’s mterest. (Doc. 37-2, p. 18). Plaintiff contends that an alternative,

less restrictive means, such as a diselaimer would be sufficient to protect the public.

(id.). For instance, Plaintiff contends that the State could “require more prominent

disclosures of the vegan nature of plant-based products, create a symbol to go on the

labeling and packaging of plant-based products indicating their vegan composition,

or require a disclaimer that the products do not contain meat.”® (fd. (citing

Turtle Island Foods SPC v. Soman, 424 F. Supp. 3d 552, 576 (E.D. Ark. 2019)).

Defendant responds that the Act “is so narrowly tailored that it prohibits only

misleading labels and misbranding.” (Doc. 45, p. 4). Defendant contends that the

prohibitory language in the Act is equally clear and direct: “No person shall

intentionally misbrand or misrepresent any food product as any agricultural product

through any activity ...” followed by a specific and detailed description of proscribed

conduct included. La. Rev. Stat. § 38:4744(B). Defendant contends that the Act

In Mississippi, Upton’s Naturals Co. and the Plant Based Foods Association challenged a

similar law on First Amendment grounds. Upton’s Naturals Co., et al. v. Phil Bryant, et al.,

No. 3:19-CV-00462-HTW-LRA. Thereafter, the Mississippi Department of Agriculture and

Commerce proposed new regulations that would allow the use of meat terms on the labels of

plant-based food if certain conditions are met. Specifically, the proposed regulations specify

that a plant-based food product will not be considered to be labeled as a “meat” or “meat food

product” if one or more of the following terms, or a comparable qualifier, is prominently

displayed on the front of the package: “meat free,” “meatless,” “plant-based,” “veggie-based,”

“made from plants,” “vegetarian,” or “vegan.” See Mississippi Reverses Stance on Plant-Based

Meat Labeling, NAT'L L. REV., https:/www.natlawreview.com/article/mississippi-reverses-

stance-plant-based-meat-labeling (last visited Mar. 17, 2022). Here, a similar regulation

would be widely applicable, provide clear standards for all regulated persons, and prevent

the arbitrary enforcement (or lack of enforcement) regarding a particular entity or label.

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proscribes only intentional misleading or intentional misbranding, and accordingly,

is not more extensive than necessary to serve the State’s interest. (Doc. 36-1, p. 16).

The Fifth Circuit has recognized various “regulatory safeguards” which the

state may impose in place of a total ban on commercial speech. See

Express Oil Change, L.L.C. v. Miss. Bd. of Licensure for Pro. Eng’rs & Surveyors,

916 F.3d 483, 493 (6th Cir. 2019) ([defendant] fails to address why alternative, less-

restrictive means, such as a disclaimer, would not accomplish its stated goal of

protecting the public.”); see also Byrum v. Landreth, 566 F.3d 442, 449 (5th Cir. 2009)

(“[CJoncerning the terms “interior design” and “interior designer,” [the Fifth Circuit]

held that “the State could have eliminated any constitutional challenge here by not

limiting use of the terms ‘interior design’ and ‘interior designer’ but by allowing only

designers who satisfy its licensing qualifications to represent themselves as ‘licensed’

interior designers.”).

Defendant has failed to address why alternative, less-restrictive means, such

as a disclaimer, would not accomplish its goal of preventing consumer confusion.

Defendant bears the burden of justifying the instant restriction on commercial

speech. This “burden is a ‘heavy’ one,” and may not be “satisfied ‘by mere speculation

or conjecture,” Express Oil Change, £.L.C, 916 F.3d at 487 (citations omitted). Here,

Defendant's general argument that the Act does not prohibit Plaintiffs commercial

speech, but only prohibits other misleading speech is not enough to bear its burden.

Defendant has “failed to satisfy the required burden of demonstrating a reasonable

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fit between its regulation and the constitutionally-protected speech.” See id. at 493.

Accordingly, the Act is an impermissible restriction on Plaintiffs commercial speech.

Because the Court has reached this conclusion, it need not address whether

the Act is unconstitutionally vague.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiffs Motion for Summary Judgment

(Doc. 37) is GRANTED.

ITIS FURTHER ORDERED that Defendant Michael G. Strain’s Motion for

Summary Judgment (Doc. 36) is DENIED.

IT IS FURTHER ORDERED that Act No. 273 is unconstitutional. The

Defendants are enjoined from enforcing the provisions of the Act.

IT IS FURTHER ORDERED that the Court will withhold final judgment

pending Plaintiffs motion for costs and attorney’s fees pursuant to Federal Rule of

Civil Procedure 54 and Local Civil Rule 54.

Baton Rouge, Louisiana, this 2yk. of March, 2022

Be R —

JUDGE BRIAN A. {ACKBON

UNITED STATES DISPRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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