Plant Based Foods Association v. Stitt

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PLANT BASED FOODS )

ASSOCIATION and TURTLE )

ISLAND FOODS SPC d/b/a THE )

TOFURKY COMPANY, )

)

Plaintiffs, )

)

-vs- ) Case No. CIV-20-938-F

)

KEVIN STITT, in his official capacity )

as Oklahoma Governor; and BLAYNE )

ARTHUR, in her official capacity as )

Oklahoma Commissioner of )

Agriculture, )

)

Defendants. )

ORDER

This matter comes before the court upon the parties’ cross-motions for

summary judgment pursuant to Rule 56, Fed. R. Civ. P. Doc. nos. 141 and 173.

Upon due consideration of the parties’ submissions, the court makes its

determination.

I.

Background

Plaintiff Plant Based Foods Association (PBFA),1 along with Upton’s

Naturals Co., commenced this action challenging the Oklahoma Meat Consumer

1 PBFA is a nonprofit trade association that represents manufacturers and sellers of 100% plant-

based foods. Plant-based “meats” are foods that approximate the texture, flavor, and appearance

of meat from animals. They are typically made from soy, tempeh, wheat, jackfruit, textured

vegetable protein, or other vegan ingredients.

Protection Act (Act), specifically, 2 O.S. § 5-107(C)(1), as unconstitutional under

the First and Fourteenth Amendments to the United States Constitution. The Act

was passed during the 2020 Legislative Session as part of House Bill 3806.

Defendant Governor Kevin Stitt signed the Act into law. At the time this action was

commenced, the Act was not yet effective. The Act became effective on November

1, 2020. To date, the Act has not been enforced.

The Act provides in pertinent part:

C. Pursuant to the Oklahoma Meat Consumer Protection Act, no person

advertising, offering for sale or selling meat shall engage in any

misleading or deceptive practices, including, but not limited to the

following:

1. Misrepresenting the cut, grade, brand, trade name or weight or

measure of any meat, or mispresenting a product as meat that is not

derived from harvested production livestock; provided, product

packaging for plant-based items shall not be considered in violation of

the provisions of this paragraph so long as the packaging displays that

the product is derived from plant-based sources in type that is uniform

in size and prominence to the name of the product[.]

2 O.S. § 5-107(C)(1) (emphasis added).2

Meat is defined by the Act as “any edible portion of livestock or part thereof,”

and livestock is defined as “animals defined by paragraph 9 of Section 1-3 of Title

2 of the Oklahoma Statutes.” 2 O.S. § 5-107(B)(1) and (2). Animals are defined as

“any cattle, bison, horses, sheep, goats, asses, mules, swine, domesticated rabbits,

and chickens, turkeys, and other domesticated fowl, and any animal or bird in

captivity.” 2 O.S. § 1-3(9).

2 A 2019 predecessor to the Act provided that “[n]o person advertising, offering for sale or selling

all or part of a carcass or food plan” shall “misrepresent[] a product as meat that is not derived

from harvested production livestock or poultry, provided product packaging for plant-based items

shall not be considered to be in violation of the provisions of this paragraph so long as the

packaging displays that the product is derived from plant-based sources[.]” 63 O.S. § 317(7)

(2019).

The plaintiffs’ complaint sought declaratory and injunctive relief against

defendants Governor Kevin Stitt and Commissioner of Agriculture Blayne Arthur,

in their respective official capacities, under 28 U.S.C. §§ 2201-02 and 42 U.S.C.

§ 1983. On the same day the complaint was filed, the plaintiffs sought a preliminary

injunction enjoining defendants and their agents from enforcing the Act. The court,

after considering briefing and conducting a hearing, denied the motion. The

plaintiffs appealed the ruling to the Tenth Circuit, but later voluntarily dismissed the

appeal.

Subsequently, the plaintiffs sought leave to file an amended complaint for

declaratory and injunctive relief and to substitute Turtle Island Foods d/b/a the

Tofurky Company (Tofurky)3 for Upton’s Naturals Co. as party-plaintiff. The court

granted the motion. The amended complaint removed the claims under the First and

Fourteenth Amendments and added five new claims to support declaratory and

injunctive relief, specifically, preemption under federal law (Count One), violation

of the Supremacy Clause (Count Two), discrimination in violation of the dormant

Commerce Clause (Count Three), excessive burden in violation of the dormant

Commerce Clause (Count Four), and violation of the Due Process Clause of the

Fourteenth Amendment (Count Five).

After answering the amended complaint and engaging in discovery,

defendants moved for an order of dismissal of PBFA as party-plaintiff for lack of

Article III standing. The court denied the motion. The court determined it was not

necessary to address the issue of PBFA’s standing because defendants had not

challenged Tofurky’s standing, and Tofurky raised the same claims and sought the

same declaratory and injunctive relief as PBFA. Assuming the truth of the

3 Tofurky develops, produces, markets, and sells 100% plant-based meat products, including vegan

burgers, meat slices, and sausages in various flavors.

allegations in the amended complaint, the court determined that those allegations

satisfied the prerequisites to standing, enabling Tofurky to bring suit.

Thereafter, defendants filed their summary judgment motion challenging the

merits of plaintiffs’ claims. Plaintiffs responded in opposition and moved for

summary judgment in their favor on their claims. In their filing, plaintiffs argued

they have Article III standing to bring their claims. PBFA asserted that it had

standing to challenge the Act on its own behalf and on behalf of its members, and

Tofurky contended that it had standing to sue on its own behalf. Defendants denied

that either PBFA or Tofurky had Article III standing.

After cursory review of the parties’ filings, the court directed the filing of

supplemental briefs. It was noteworthy to the court that “[b]y the plain terms of the

statute, the prohibition” set forth in the Act --- “a product cannot be represented as

meat if it ‘is not derived from harvested production livestock’” --- “applies only to

persons ‘advertising, offering for sale or selling meat.’” Doc. no. 190, pp. 1-2

(quoting doc. no. 123). In the court’s view, “there may be a serious question as to

whether plaintiffs are really exposed to the kind of concrete harm they complain

about (and, under Article III, must show) in this case.” Id. The court concluded that

the issue of whether the Act applies to plaintiffs needed to be addressed. In addition,

the court concluded that the traceability and redressability requirements of Article

III standing needed to be addressed. The parties complied with the court’s directive.

For the reasons stated at length in this order, the court concludes that plaintiffs,

as the parties asserting federal jurisdiction, have not established the elements of

Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“The

party invoking federal jurisdiction bears the burden of establishing [the Article III

standing] elements.”). The court concludes that it must deny plaintiffs’ summary

judgment motion to the extent it seeks an adjudication that plaintiffs have Article III

standing. The court concludes that it must dismiss plaintiffs’ action against

defendants without prejudice, pursuant to Rule 12(h)(3), Fed. R. Civ. P., for lack of

subject matter jurisdiction due to plaintiffs’ lack of standing.

II.

Analysis

Article III of the United States Constitution limits the jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also, Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 157 (2014). “One element of the case-or-

controversy requirement is that plaintiffs must establish that they have standing to

sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (internal citations

and quotation marks omitted).

To establish Article III standing, a plaintiff must demonstrate three elements:

(1) an injury in fact; (2) there is a causal connection between the injury and the

conduct complained of; and (3) the injury is likely, as opposed to merely speculative,

to be redressed by a favorable decision. Lujan, 504 U.S. 560-61. “To satisfy the

first of these three elements, a plaintiff must offer something more than the

hypothetical possibility of injury.” Colorado Outfitters Ass’n v. Hickenlooper, 823

F.3d 537, 544 (10th Cir. 2016). “The alleged injury must be concrete, particularized,

and actual or imminent.” Id. (citing Lujan, 504 U.S. at 560). “For an injury to be

particularized, it ‘must affect the plaintiff in a personal and individual way.’” Laufer

v. Looper, 22 F.4th 871, 876 (10th Cir. 2022) (quoting Lujan, 504 U.S. at 560 n. 1).

“To be concrete, an injury must be real rather than abstract.” Id. (internal quotation

marks and citation omitted). “An alleged future injury is sufficiently imminent if

the threatened injury is certainly impending, or there is a substantial risk that the

harm will occur.” Id. (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,

158 (2014)).

Article III standing is determined as of the time the action is brought. See,

Nova Health Systems v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005).

Standing of PBFA – On Its Own Behalf

PBFA contends that it has standing to challenge the Act “on its own behalf

and on behalf of its members.” Doc. no. 174, ECF p. 16. Under the Supreme Court’s

precedents, “organizations may have standing ‘to sue on their own behalf for injuries

they have sustained.’” Food and Drug Administration v. Alliance for Hippocratic

Medicine, 602 U.S. ___, 2024 WL 2964140, at *13 (June 13, 2024) (quoting Havens

Realty Corp. v. Coleman, 455 U.S. 363, 279, n. 19 (1982)). “In doing so, however,

organizations must satisfy the usual standards for injury in fact, causation, and

redressability that apply to individuals.” Id.

“[A]n organization may not establish standing simply based on the intensity

of the [organization’s] interest or because of strong opposition to the government’s

conduct, no matter how longstanding the interest and no matter how qualified the

organization.” Alliance for Hippocratic Medicine, 2024 WL 2964140, at *13

(citations and internal quotation marks omitted). “A plaintiff must show ‘far more

than simply a setback to the organization’s abstract social interests.’” Id. (quoting

Havens, 455 U.S. at 379). Thus, PBFA cannot assert standing simply because it

objects to the Act. Id.

PBFA contends that it has suffered a concrete injury because it “has had to

divert and expend organizational resources to combat the harms the Act is causing

PBFA and its members.” Doc. no. 174, ECF p. 16. As evidence of this injury, PBFA

relies upon the declaration of its Chief Executive Officer, Rachel Dreskin. Doc. no.

122-1, specifically, ¶¶ 13-19. In her declaration, Ms. Dreskin avers that PBFA was

forced to expend organizational resources to lobby against the Act and to address

the Act once it was enacted. It also had to expend its resources educating its

members about the Act, conducting research on the effects of the Act, and

determining the repercussions of the Act and how to combat them. According to

Ms. Dreskin, PBFA submitted requests to state legislators to vote against the

legislation and requested Governor Kevin Stitt to veto it. PBFA has communicated

with its members who sell products in Oklahoma and held meetings with them to

determine how the law could impact their ability to sell. In addition, it has engaged

in several efforts to help educate its members and the public about the negative

ramifications of the law. Id.

However, in Alliance for Hippocratic Medicine, the Supreme Court stated that

an organization “cannot spend its way into standing simply by expending money to

gather information and advocate against the defendant’s action.” 2024 WL

2964140, at *13. “An organization cannot manufacture its own standing in that

way.” Id.

Like the medical associations in Alliance for Hippocratic Medicine, PBFA

relies on the Supreme Court’s decision in Havens Realty Corp. v. Coleman for

standing based on the diversion of resources theory. But the Supreme Court rejected

that theory. According to the Court, “that theory would mean that all the

organizations in America would have standing to challenge almost every federal [or

in this case, state] policy they dislike, provided they spend a single dollar opposing

those policies.” 2024 WL 2964140, at *13. The Court concluded that Havens did

“not support such an expansive theory of standing.” Id.

In its papers, PBFA also asserts that it has suffered concrete injury because

the Act “frustrates PBFA’s ability to accomplish its mission.” Doc. no. 191 (citing

doc. no. 122, pp. 4-7). In her declaration, Ms. Dreskin avers that the Act frustrates

PBFA’s “explicit goal of promoting clarity and consistency in the labeling of plant-

based foods and ensuring not only that there remains a uniform nationwide labeling

scheme, but that such scheme is evenhandedly enforced.” Doc. no. 122-1, ¶ 17. In

support of its frustration of mission theory, PFBA again relies on the Havens

decision. Although the Supreme Court did not address the frustration of mission

theory, the court is far from convinced that PFBA’s reliance on that theory is

sufficient to establish an injury in fact for standing purposes. As the Supreme Court

stated: “Havens was an unusual case, and this Court has been careful not to extend

the Havens holding beyond its context.” Alliance for Hippocratic Medicine, 2024

WL 2964140, at *14. PBFA has not presented evidence of the kind of injury that

the Havens plaintiff incurred. It has not shown, from the cited paragraphs of Ms.

Dreskin’s declaration, that defendants’ actions “directly affected and interfered with

[its] core business activities[.]” Id. at *13.

Upon review, the court concludes that PBFA has failed to set forth by affidavit

or other evidence “specific facts,” that if taken as true, show a concrete injury on its

own behalf. See, Clapper, 568 U.S. at 412; Lujan, 504 U.S. at 561.

Standing of PBFA - On Behalf Of Its Members

An organization “can assert ‘standing solely as the representative of its

members.’” Students for Fair Admissions, Inc. v. President and Fellows of Harvard

College, 600 U.S. 181, 199 (2023) (quoting Warth v. Seldin, 422 U.S. 490, 511

(1975)). “To invoke it, an organization must demonstrate that ‘(a) its members

would otherwise have standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization’s purpose; and (c) neither the claim asserted

nor the relief requested requires the participation of individual members in the

lawsuit.’” Id. (quoting Hunt v. Washington State Apple Advertising Comm’n, 432

U.S. 333, 343 (1977)).

A threshold issue is whether PBFA’s members who market and sell 100%

plant-based meat products would otherwise have standing to sue in their own right.

One of those members is Tofurky. According to PBFA, Tofurky and its other

plant-based meat producing members “fear prosecution under the Act, both from the

sale of their products in Oklahoma and from their online marketing, which may be

accessed by Oklahoma consumers.” Doc. no. 174, ECF p. 16.

In their summary judgment motion, plaintiffs stated the penalties for violation

of the Act are those found in 2 O.S. § 5-106. Doc. no. 174, ECF p. 12, ¶ 15. That

statement was undisputed by defendants. Doc. no. 182, ECF p. 8, ¶ 7. Section 5-

106 provides for both misdemeanor-level criminal punishment and significantly

more serious felony-level punishment—a fine not to exceed $10,000 or

imprisonment for a term not to exceed three years (or both). See, 2 O.S. § 5-106.4

A. Injury in Fact

To establish an injury in the context of a pre-enforcement challenge to a

criminal statute, “a plaintiff must typically demonstrate (1) ‘an intention to engage

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

by [the challenged] statute,’ and (2) that ‘there exists a credible threat of prosecution

thereunder.’” Colorado Outfitters, 823 F.3d at 545 (quoting Driehaus, 573 U.S. at

159) (other quotation omitted). “The threat of prosecution is generally credible

where a challenged provision on its face proscribes the conduct in which a plaintiff

wishes to engage, and the state has not disavowed any intention of invoking the

provision against the plaintiff.” Frank v. Lee, 84 F.4th 1119, 1133 (10th Cir. 2023)

(quotation marks, citations and ellipsis omitted).

Upon review, the court concludes that PBFA has failed to sufficiently

demonstrate that the course of conduct its members who produce, market, and sell

100% plant-based meat products intend to engage in is “arguably proscribed by [the

4 At the preliminary injunction stage, plaintiffs, represented by other counsel, asserted that the

penalties in 2 O.S. § 2-18 applied. See, § 2-18(A) (authorizing the assessment of an administrative

penalty of not less than $100 and not more than $10,000 for each violation of the Oklahoma

Agricultural Code) and § 2-18(C) (providing that a person who fails to comply with the provisions

of the Oklahoma Agricultural Code shall be deemed guilty of a misdemeanor unless a violation of

the Oklahoma Agricultural Code is specifically identified with a penalty or as a felony in the

individual articles of the Oklahoma Agricultural Code). See, doc. no. 6, ECF p. 15 and n. 5. In

their supplemental briefing, plaintiffs suggest the penalties are unspecified. Doc. no. 191, ECF p.

16. The court analyzes the issue of Article III standing based on plaintiffs’ statement in their

summary judgment motion.

challenged] statute,” Driehaus, 573 U.S. at 162, and that a credible threat of

prosecution exists.

By its plain terms, the Act applies only to those who sell (or advertise or offer

for sale) “meat” defined as an “edible portion of livestock or part thereof.” This

includes retailers which sell both real meat and plant-based meat products. The

statutory prohibition involved in this case applies to their marketing and selling of

plant-based meat products. The prohibition does not apply to sellers dealing only in

plant-based meat products, because it includes only sellers of “meat,” as defined.

The parties are united (albeit not for identical reasons) in opposing this

conclusion as to the plain import of the statute. What plaintiffs want the court to do

is judicially amend the statute, and then declare it unenforceable as judicially

amended. Defendants, for their part, want the court to judicially amend the statute,

and then bestow the court’s blessing on the judicially amended version. The court

declines to take either course.

The parties’ submissions as to what the statute really means are supported by

some familiar canons of construction. Plaintiffs argue, citing respectable Oklahoma5

authority, that the manifest intent of the legislature should prevail over the literal

import of the words of the statute. See, doc. no. 191, ECF p. 4. In the same vein,

they argue that incorrect or inept choice of words in a statute will not be construed

in a manner which would destroy the real and obvious purpose of the statute. Id.

Similarly, defendants rely on Oklahoma authority for the proposition that a statutory

construction that would lead to absurdity must be avoided and a rational construction

should be given to a statute if the language fairly permits. See, doc. no. 192, ECF p.

9 (citing McIntosh v. Watkins, 441 P.3d 1094, 1096 (Okla. 2019)). To the same

5 Plaintiffs point out, correctly, that a when a federal court construes a state statute, that state’s

rules of construction should be used. Phelps v. Hamilton, 59 F.3d 1058, 1071 (10th Cir. 1995).

effect, see, LeFlore v. Reflections of Tulsa, Inc., 708 P.2d 1068, 1075 (Okla. 1985),

and City of Norman v. Liddell, 596 P.2d 879, 882 (Okla. 1979).

These arguments are appealing as far as they go. The evident twin purposes

of the statute are (i) to facilitate informed consumer choices by reducing the

likelihood that a busy shopper, hurrying through the meat section of the grocery

store, will reach for a package containing a plant-based product, thinking that it

contains real meat,6 and, in consequence, (ii) to protect livestock producers from the

effects of ill-informed point-of-sale selections by consumers. But construing a

statute to give it a sensible meaning within the outer limits of the words that are there

is one thing. Judicially amending a statute to give it a meaning–however sensible–

directly contrary to the meaning conveyed by the words used by the legislature is

quite another. This is where the “if the language fairly permits” concept takes over.

“[O]nly when the statutory language permits, may we adopt a construction intended

to avoid hardship or evils intended to be prevented.” Keating v. Edmondson, 37

P.3d 882, 888 (Okla. 2001). For instance, the Supreme Court of Oklahoma has

recently refused to substitute “must” for “may.” Toch, LLC v. City of Tulsa, 474

P.3d 859, 868 (Okla. 2020), as corrected (Sept. 30, 2020) (citing Ledbetter v. Okla.

Alcoholic Beverage Laws Enforcement Comm'n, 764 P.2d 172, 179 (Okla. 1988)

for the rule that “[s]tatutory construction that would lead to an absurdity must be

6 The understandable basis for this legislative concern is epitomized by the Upton’s Naturals Co.’s

label that was before the court at the preliminary injunction stage of this case. The product was

prominently labeled “Ch'eesy Bacon Mac” even though it contained no bacon (or, for that matter,

cheese). On the label for this product, the descriptive product name and a depiction of what would

appear to be macaroni and cheese garnished with bacon were far more conspicuous than the word

“vegan.” See, Upton's Naturals Co. v. Stitt, No. CIV-20-938-F, 2020 WL 6808784, at *1 (W.D.

Okla. Nov. 19, 2020).

avoided and a rational construction should be given to a statute if the language fairly

permits.”).7

These limitations on judicial repair work are far from unique to Oklahoma.

As Justice Scalia has written: “Words do have a limited range of meaning, and no

interpretation that goes beyond that range is permissible.” Antonin Scalia, A Matter

of Interpretation, 24 (Princeton: Princeton U. Press, 1997). Another essayist in the

same work put it this way: “The text, however, remains the alpha and omega of

interpretation. It serves both as the starting point for judicial reasoning and the outer

limit on the range of possible results.” Mary Ann Glendon, Comment, ibid. at

106-07.

Bearing these limitations in mind, what the court declines to do is import into

the statute words that are plainly not there, and then adjudicate the meaning and

enforceability of the statute as judicially amended. To give the statute the meaning

contended for by the parties, the court would have to do more than a little rewriting

of the statute. The first step would be to rewrite the definition of “meat” in

subsection (B)(2) to include plant-based meat products. That would give the word

“meat,” as used in the introductory portion of § 5-107(C) the inclusive meaning

contended for by the parties (e.g., “no person . . . selling meat shall . . . .”). But then

the court would have to rewrite the definition of meat for purposes of subdivision

(C)(1) to include only “meat” derived from production livestock. The short of the

matter is that if repair work is necessary–which seems likely–that task falls to the

Oklahoma legislature, following which a court of competent jurisdiction can, if

called upon to do so, pass judgment on the repaired version.

7 Ledbetter was cited to this effect as recently as March 12 of this year. Schiewe v. Cessna Aircraft

Co., 546 P.3d 234, 243 (Okla. 2024).

Because the prohibition at issue here does not apply to sellers dealing only in

plant-based meat products, the court concludes that PBFA has failed to demonstrate

that the course of conduct its members who produce and sell 100% plant-based meat

products intend to engage in is arguably proscribed by the challenged statute and

that a credible threat of prosecution exists. Thus, the court concludes that PBFA has

failed to demonstrate an injury in fact in support of its pre-enforcement challenge of

the Act.8

In supplemental briefing, PBFA asserts that some of its members advertise,

offer for sale, or sell “meat” as defined by the Act. PBFA submits the affidavit of

Ms. Dreskin to establish that the association represents one member, specifically,

Palacios.US, that advertises, offers for sale and sells both animal-based and

plant-based meat products. According to Ms. Dreskin, Palacios.US’s packaging for

the “Plant Based BBQ Chorizo” and “Plant Based Burger” is arguably proscribed

by the Act because it does not show that the product is derived from plant-based

sources in type that is uniform in size and prominence to the name of the product.

The court, however, concludes that PBFA cannot rely upon Palacios.US to

establish standing. Ms. Dreskin’s declaration contains inadmissible hearsay. See,

Rule 801(c), Fed. R. Evid. PBFA does not proffer a hearsay exception which would

make this hearsay admissible at trial. In addition, Ms. Dreskin’s declaration does

not indicate that the information she provides is based on her personal knowledge.

See, Rule 56(c)(4), Fed. R. Civ. P. (a declaration “must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the . .

. declarant is competent to testify on the matters stated.”); Rule 602, Fed. R. Evid.

8 Even if the prohibition of the Act on its face applied to Tofurky and PBFA’s members who only

produce, market, and sell 100% plant-based meat products, PBFA still has not shown a credible

threat of prosecution. Although Oklahoma has not disavowed invoking the Act against those who

only produce, market, and sell 100% plant-based meat products, the record submitted by plaintiffs

indicates that enforcement of the Act is uncertain until rule-making occurs. Doc. no. 174-4, ECF

p. 27, ll. 3-10, ECF p. 28, ll. 15-24.

(requiring a testifying witness to “ha[ve] personal knowledge of the matter.”). Under

the personal knowledge standard, a declaration “is inadmissible if the witness could

not have actually perceived or observed that which [she] testifies to.” Argo v. Blue

Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)

(quotation marks and citation omitted). The record does not show whether Ms.

Dreskin could have “actually perceived or observed” the information provided in her

declaration.

The court recognizes that “[a]t the summary judgment stage, evidence need

not be submitted in a form that would be admissible at trial.” Argo, 452 F.3d at 1199

(quotation marks and citation omitted). Nonetheless, “the content or substance of

the evidence must be admissible.” Id. (quotation marks and citation omitted). The

content or substance of the information in Ms. Dreskin’s declaration would not be

admissible at trial because plaintiffs did not identify Palacios.US or any of its

officers or employees during discovery or in their amended witness list. The court

raised the issue regarding whether the prohibition of the Act applied to plant-based

only producers and sellers prior to plaintiffs filing their amended witness list.

Plaintiffs had ample opportunity to include an employee or officer from Palacios.US

on that list and to identify the company or its officers and employees to defendants

during discovery. In the court’s view, defendants would be unduly and unfairly

prejudiced by the addition of Palacios.US at this late date. Thus, the court rejects

PBFA’s argument that it has standing to challenge the constitutionality of the Act on

behalf of its member, Palacios.US.

PBFA posits, in a footnote in their supplemental briefing, that “regardless of

whether the Act can be used to prosecute PBFA’s members directly, those members

can be charged for aiding and abetting violations of the Act[,]” relying upon 21 O.S.

§ 172. See, doc. no. 191, n. 4. It points out that its members disseminate their

products to retailers and distributors that sell both plant-based and livestock-based

products in Oklahoma. Consequently, PBFA asserts that a credible fear of

prosecution exists because the Act can arguably be applied to prosecute its members

for aiding and abetting any violations. The court disagrees.

“[P]ersons having no fears of state prosecution except those that are imaginary

or speculative, are not to be accepted as appropriate plaintiffs.” Babbitt v. United

Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). “When plaintiffs do not claim

that they have ever been threatened with prosecution, that a prosecution is likely, or

even that a prosecution is remotely possible, they do not allege a dispute susceptible

to resolution by a federal court.” Id. at 299-300. In this case, PBFA has not proffered

evidence, by declaration or otherwise, setting forth specific facts indicating that

prosecution is likely or even that it is remotely possible against Tofurky or other

100% plant-based meat producers and sellers for violations of the Act as aider and

abettors. The court concludes that any fears of prosecution for aiding and abetting

are imaginary and speculative.

In addition, PBFA, in its supplemental briefing, contends that it may pursue

the pre-enforcement challenge of the Act because Tofurky and other PBFA

members’ businesses will suffer economic harm. Although its members have not

changed their marketing or packaging, PBFA asserts that the Act will impose costs

on its members. These costs include redesigning their labels and creating new

packaging, loss of distribution partners due to non-compliant labels, and the

development of a new marketing scheme. However, because the Act does not

arguably apply to the conduct of Tofurky or the other 100% plant-based meat

members, PBFA cannot demonstrate that the alleged threatened injury is certainly

impending or that there is a substantial risk the injury will occur. See, Laufer, 22

F.4th at 876.

Lastly, in its supplemental briefing, PBFA asserts that Tofurky and its other

members have injury in fact attributable to the Act based on contingent liability to

retailers and distributors. PBFA proffers a declaration of Jaime Athos, Tofurky’s

President and Chief Executive Officer, to support the assertion. Doc. no. 191-2,

¶¶ 5-6. Mr. Athos avers that Tofurky has indemnification clauses in its distribution

and sales agreements which require Tofurky to indemnify distributors and their

affiliates for violations of law regarding labeling, packaging, sales, and advertising

and promotional materials created by Tofurky. In addition, he avers that Tofurky

has no control over the states its products will end up in because the distributors

determine where the products are ultimately sold.

Initially, it is not clear whether the indemnification clauses discussed by Mr.

Athos would cover possible criminal convictions and fines set forth in § 5-106.

Nevertheless, the court concludes that PBFA has not sufficiently demonstrated an

injury in fact based on contingent liability.

As support for its theory, PBFA relies upon Protocols, LLC v. Leavitt, 549

F.3d 1294 (10th Cir. 2008). There, the Tenth Circuit determined that a contingent

liability may present an injury in fact for standing purposes:

[C]ourts—including the Supreme Court, both explicitly and

implicitly—have recognized that contingent liability may present an

injury in fact. To be sure, an injury in fact must be “actual or

imminent,” and a contingent liability, by definition, may not arise for a

considerable time, if ever. The consequences of a contingent liability,

however, may well be actual or imminent.

Id. at 1299. The Tenth Circuit found that the plaintiffs had suffered an actual and

imminent injury because they had submitted affidavits to show their “potential

[contingent] liability has a present impact on its business[.]” Id. at 1301.9 The

affidavits submitted by the plaintiffs in Protocols described the contingent liability

9 The plaintiffs in Protocols assisted in structuring settlement of workers’ compensation claims.

They alleged the Centers for Medicare and Medicaid Services, an agency within the United States

Department of Health and Human Services, misinterpreted the Medicare statute and regulations in

a 2005 memorandum, which exposed the plaintiffs to unexpected liabilities arising out of the

settlements they structured.

hampering business in three ways: “(1) the company’s value decreased because of

contingent liabilities; (2) the uncertainty of the liability harm[ed] [the company’s]

ability to plan how much revenue it may use for capital and operating costs; and (3)

the company ha[d] postponed discussions with potential investors while awaiting the

outcome of this lawsuit, because potential investors want to know about contingent

liabilities.” Id. at 1299.

Here, Mr. Athos’s declaration does not describe any present impact on

Tofurky’s business due to the contingent liability to distributors and retailers. Unlike

the plaintiffs in Protocols, Mr. Athos does not proffer testimony that Tofurky’s

business is in any way hampered because of the alleged contingent liability. Because

PBFA does not present any other evidence besides Mr. Athos’s declaration to

establish the existence of contingent liability, the court concludes that PBFA has

failed to show actual and imminent injury based on its members’ alleged contingent

liability to distributors and retailers.

In sum, based on the summary judgment record, the court concludes that

PFBA has failed to demonstrate an injury in fact to support its Article III standing

to proceed on behalf of its members.

B. Causation

Even if PBFA could demonstrate a cognizable injury in fact by Tofurky or

other members, the court concludes that PBFA has not established the second

element of Article III standing—causation. This element requires a plaintiff’s action

be “fairly traceable to the challenged action of the defendant, and not the result of

the independent action of some third party not before the court.” Lujan, 504 U.S. at

560 (ellipsis and alterations omitted).

“It is well-established that when a plaintiff brings a pre-enforcement challenge

to the constitutionality of a particular statutory provision, the causation element of

standing requires the named defendants to possess authority to enforce the

complained-of provision.” Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir.

2007).

Plaintiffs have sued Governor Stitt and Commissioner Arthur to preclude the

enforcement of the Act and its criminal penalty provision found at § 5-106.

Several Tenth Circuit cases summarize the framework for determining

whether a defendant has the enforcement authority necessary to render that

defendant amenable to suit. Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir.

2014) is instructive:

“Whether the Defendants have enforcement authority is related to

whether, under Ex parte Young, they are proper state officials for suit.”

Cressman v. Thompson, 719 F.3d 1139, 1146 n. 8 (10th Cir. 2013)

(citation omitted). Under Ex parte Young, a state defendant sued in his

official capacity must “have some connection with the enforcement” of

a challenged provision. 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714

(1908). “An officer need not have a special connection to the allegedly

unconstitutional statute; rather, he need only have a particular duty to

enforce the statute in question and a demonstrated willingness to

exercise that duty.” Chamber of Commerce of the U.S. v. Edmondson,

594 F.3d 742, 760 (10th Cir. 2010) (quotation omitted); see also

Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (“So long

as there is [some] connection [with enforcement of the act], it is not

necessary that the officer’s enforcement duties be noted in the act.”

(quotation omitted)).

To be sure, the Commissioner, as the leader of the State Department of

Agriculture, is certainly not detached from matters relating to enforcement of the

Act. It is easy to imagine that, at times, matters relating to the Act are front-of-mind

for the Commissioner, if for no other reason than that he is the chief administrative

officer of the Department. See, 2 O.S. § 1-3(15). That is not the issue. The issue is

whether the Commissioner demonstrably (e.g., as a matter of constitutional or

statutory text) has “a particular duty to enforce the statute.” He does not. That duty

rests, as a matter of statutory law, with the State Board of Agriculture.

The Oklahoma Agricultural Code, where the Act is located, specifically

provides that the State Board of Agriculture shall have the power to “[i]nitiate and

prosecute . . . criminal actions and proceedings necessary under the Oklahoma

Agricultural Code.” 2 O.S. § 2-4. It also provides that “[w]hen requested by the

State Board of Agriculture it shall be the duty of a district attorney or the Attorney

General to institute proceedings in the proper courts in a timely manner and to

prosecute in the manner provided by law when violations” of the Oklahoma

Agricultural Code occur. 2 O.S. § 2-16(A)(1).

Although Commissioner Arthur is President of the Board, the Board has four

other members. 2 O.S. § 2-1(1). And only the Commissioner serves at the pleasure

of the Governor. 2 O.S. § 2-3(A). While PBFA contends the Commissioner, as the

President of the Board, has power to initiate and prosecute proceedings, including

criminal actions and proceedings, see, doc. no. 191, ECF p. 14, the plain language

of the Oklahoma Agricultural Code provides otherwise. Moreover, PBFA has not

cited authority or proffered evidence setting forth specific facts indicating that the

Board has delegated any of its enforcement of the Act and its criminal penalty

provision to Commissioner Arthur.

The court concludes that PBFA has not shown that Commissioner Arthur has

a particular duty to enforce the Act, including its criminal penalty provision.

Moreover, the court concludes that PBFA has not demonstrated with specific facts

any willingness by Commissioner Arthur to fulfill such a duty. PBFA states, in

briefing, that the “enforcing agency, overseen by Commissioner Arthur, has stated

it intends to enforce the Act against plant-based companies such as Plaintiffs.” Doc.

no. 191, ECF p. 14. In support of that statement, PBFA cites the deposition of Scott

Yates, doc. no. 174-4, 32:16-22, 33:8-13. The testimony cited, however, does not

support that statement.

As to Governor Stitt, PBFA maintains it can establish the causation element

relying on the case of Petrella v. Brownback, 697 F.3d 1285, 1293-94 (10th Cir.

2012). In that case, the Tenth Circuit stated:

It cannot seriously be disputed that the proper vehicle for challenging

the constitutionality of a state statute, where only prospective, non-

monetary relief is sought, is an action against the state officials

responsible for the enforcement of that statute. See Ex parte Young,

209 U.S. 123, 161, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Nor can it be

disputed that the Governor and Attorney General of the state of Kansas

have responsibility for the enforcement of the laws of the state. See

Kan. Const. Art. 1 § 3; Kan. Stat. Ann. § 75-702.

Petrella illustrates a noteworthy difference between the government of

Oklahoma and the government of Kansas. Oklahoma, like Kansas, has a

constitutional provision vesting “supreme executive power” in the governor. Okla.

Const., Art. VI, § 2. But the Oklahoma constitution, unlike that of Kansas, does not

go on to task the governor with “the enforcement of the laws of this state.” Kan.

Const., Art. I, § 3. That is not an accidental difference. The framers of the Oklahoma

Constitution set out to craft the antithesis of what is nowadays called the “unitary

executive.” On that score, the Oklahoma Constitution partakes at least as much of

William Jennings Bryan as it does of James Madison. “Fearing excessive power in

the hands of one individual, the framers of the Oklahoma Constitution intentionally

created a weak state chief executive.” Ho v. Tulsa Spine & Specialty Hosp., L.L.C.,

507 P.3d 673, 679 (Okla. 2021). See also, United States v. Morgan, 635 F.App’x.

423, 425 n. 2 (10th Cir. 2015) citing testimony asserting (admittedly with some

exaggeration) that “in the State of Oklahoma, with a weak governor form of

government, the governor can’t do anything without the advice and consent of the

Senate.”

In the court’s view, PBFA has not shown that Governor Stitt has a particular

duty to enforce the Act and the criminal penalty provision. Further, PBFA has not

demonstrated with specific facts any willingness by Governor Stitt to exercise that

duty.

In sum, PBFA has failed to establish by declaration or other evidence “specific

facts,” that if taken as true, Lujan, 504 U.S. at 561, demonstrate that Commissioner

Arthur and Governor Stitt possess authority to enforce the Act and the criminal

penalty provision. Therefore, the court concludes that PBFA has failed to establish

the causation element for Article III standing.

C. Redressability

The third element of Article III standing is redressability – a likelihood that

the injury in fact will be redressed by a favorable decision. However, this element

is not met “when a plaintiff seeks relief against a defendant with no power to enforce

a challenged statute.” Bronson, 500 F.3d at 1111. Because PBFA has not

demonstrated a power to enforce the Act and the criminal penalty provision by

Commissioner Arthur and Governor Stitt, the court concludes that PBFA has not

satisfied the redressability element of Article III standing.

Based on the summary judgment record, the court finds that PBFA has not

demonstrated that “its members would otherwise have standing to sue in their own

right.” Students for Fair Admissions, Inc., 600 U.S. at 199 (quotation marks and

citation omitted). The court consequently concludes that PBFA cannot assert Article

III standing on behalf of its members.

Tofurky

As discussed, in an earlier stage of this proceeding, defendants moved to

dismiss PBFA for lack of Article III standing. In denying the motion, the court

concluded it was not necessary to address the issue of PBFA’s standing because

Tofurky raised the same claims and sought the same declaratory and injunctive relief

as PBFA, and the allegations of the amended pleading, taken as true, established

each of the standing elements for Tofurky to bring suit. See, Town of Chester, N.Y.

v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017) (“At least one plaintiff must have

standing to seek each form of relief requested in the complaint.”); see also, Rumsfeld

v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52 n. 2 (2006)

(presence of one party with standing is sufficient to satisfy Article III’s case-or-

controversy requirement).

However, as the Supreme Court has recognized, “an initial conclusion that

plaintiffs have standing is subject to reexamination, particularly if later evidence

proves inconsistent with that conclusion.” Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 201 (2000) (Justice Scalia and

Justice Thomas dissenting) (citing Gladstone Realtors v. Village of Bellwood, 441

U.S. 91, 115 and n. 31 (1979)).

In asserting Article III standing on behalf of its members, PBFA relied on

Tofurky’s alleged injuries. PBFA and Tofurky additionally make the same

arguments and proffer the same evidence addressing the elements of standing. For

the same reasons as those demonstrating that PBFA has not shown that its members

would otherwise have standing to sue in their own right, the court concludes that

Tofurky has not demonstrated that it has standing to sue in its own right.

III.

Conclusion

Because PFBA and Tofurky, as the parties invoking federal jurisdiction, have

not established the elements of Article III standing, the court concludes that PFBA

and Tofurky’s cross-motion for summary judgment should be denied to the extent it

seeks adjudication they have Article III standing and stricken as moot in all other

respects, and defendants’ motion for summary judgment should be stricken as moot

in all respects. The court concludes that plaintiffs’ action against defendants should

be dismissed without prejudice, pursuant to Rule 12(h)(3), Fed. R. Civ. P.,!° for lack

of subject matter jurisdiction due to plaintiffs’ lack of Article ITI standing.

IV.

Ruling

Accordingly, Plaintiffs’ Cross-Motion for Summary Judgment (doc. no. 173)

is DENIED to the extent it seeks adjudication they have Article HI standing and

STRICKEN as MOOT in all other respects. Defendants’ Motion for Summary

Judgment (doc. no. 141) is STRICKEN as MOOT in all respects.

The action of plaintiffs Plant Based Foods Association, and Turtle Island

Foods SPC d/b/a The Tofurky Company against defendants Kevin Stitt, in his

official capacity as Oklahoma Governor, and Blayne Arthur, in her official capacity

as Oklahoma Commissioner of Agriculture, is DISMISSED WITHOUT

PREJUDICE pursuant to Rule 12(h)(3), Fed. R. Civ. P., for lack of subject matter

jurisdiction due to plaintiffs’ lack of standing.

A separate judgment will be entered.

IT IS SO ORDERED this 24" day of June, 2024.

Ab pit

UNITED STATES DISTRICT JUDGE

20-0938p053 MSJ REV .docx

0 Section 12(h)(3) provides that any time a court determines “that it lacks subject-matter

jurisdiction, the court must dismiss the action.” The Tenth Circuit “has repeatedly characterized

standing as an element of subject matter jurisdiction.” Hill v. Vanderbilt Capital Advisors, LLC,

702 F.3d 1220, 1224 (10" Cir. 2012).

23