January 22, 2020
by Missy Oakley, Senior Associate
On August 8, 2019, the fast-food chain Burger King launched its meatless, vegan burger: the Impossible Whopper. The Impossible Whopper is just like the classic Whopper, but it is prepared with a plant-based patty instead of a beef patty. McDonald’s recently began testing a similar sandwich in Canada, called the “P.L.T.” Burger King and McDonald’s are among several companies attempting to meet increased consumer demand for “alternative meat” products. More and more consumers are reducing their meat consumption and switching to more plant-based diets amid concerns for personal health, animal welfare, and the environment. This trend toward less meat has brought new products to the market, and it has raised concern regarding how these products are labeled.
On June 11, 2019, the Louisiana Legislature passed S.B. 152, known as the “Truth in Labeling of Food Products Act” (“Act”). The Act prohibits any person that places a label on a food product from intentionally misbranding or misrepresenting the food product as an agricultural product. The Act applies to a range of agricultural products—not just meat—and provides definitions for terms like “meat,” “beef,” “pork,” “poultry,” and “rice.” The law prohibits plant-based products from being called meat, non-rice products from being called rice, and sugar alternatives from being called sugar. The Act also takes a preemptive strike at cell-cultured meat, which is not yet commercially available, by excluding it from the definition of “meat.” Any person who violates the Act is subject to a civil penalty of up to $500 per violation. Each day the violation occurs constitutes a separate violation. The Act becomes effective on October 1, 2020.
Louisiana’s Act is not the first of its kind in the United States. In the past year, 11 other states—believing only foods made from animal flesh should carry labels such as “burger,” “bacon,” or “hot dog”—have passed similar truth in labeling laws. Proponents of these laws argue that more restrictive labeling will reduce consumer confusion and help consumers understand what they are eating. Opponents argue that these laws have less to do with protecting consumers and more to do with protecting traditional meat industries. The latter argument is not completely baseless in Louisiana, considering that two of the three politicians who introduced S.B. 152 openly stated that the Act is primarily designed to protect the animal agriculture industry.
In the past year, advocates of plant-based foods have filed lawsuits in Arkansas, Mississippi, and Missouri challenging these truth in labeling laws. These lawsuits allege violations of the Free Speech Clause of the First Amendment, the Dormant Commerce Clause, and the Due Process Clause. Louisiana’s law is expected to draw similar challenges. At least once previously, in a similar legal dispute over what constitutes “skim milk,” the free speech argument has prevailed.
III. Florida’s Dispute Over “Skim Milk”
In Ocheesee Creamery LLC v. Putnam, a farmer selling pasteurized skim milk sued the state of Florida after the state told her she could not label and sell her product as “skim milk” because her product lacked vitamin A. Vitamin A is naturally depleted during the skimming process. Under Florida law, only skim milk with vitamin A artificially injected back into it could be labeled as “skim milk,” and any other product had to be labeled as “imitation skim milk.” The farmer, whose product did not have vitamin A added back and consisted of only a single ingredient—skim milk—refused to label her all-natural product as “imitation skim milk.” The Eleventh Circuit in Ocheesee held that the farmer’s use of the term “skim milk” was not inherently misleading, and, therefore, the commercial speech was entitled to protection under the First Amendment.
IV. Constitutional Question
Louisiana’s Truth in Labeling of Food Products Act addresses food product labeling. Food labels are a form of commercial speech because they are an “expression related solely to the economic interests of the speaker and its audience.” An open question remains as to whether Louisiana’s Act will withstand a First Amendment challenge.
A. The Central Hudson Test
In Central Hudson Gas & Electric Corp. v. Public Service Commission, the United States Supreme Court outlined the rubric for courts to evaluate challenges to restrictions on commercial speech. The analysis under Central Hudson consists of a threshold question followed by a three-prong test. The threshold question is “whether the expression is protected by the First Amendment.” If the threshold question is answered in the affirmative, the government’s regulation will only be upheld if it withstands intermediate scrutiny under Central Hudson’s test. To pass intermediate scrutiny, the government must assert a substantial interest that the restriction directly advances by means that are no more extensive than necessary to serve that interest. If the threshold question is answered in the negative, the analysis stops because the commercial speech is not protected by the First Amendment, and the government’s restriction on the speech will stand.
B. Louisiana’s Act Under Central Hudson
When Louisiana’s Act goes into effect in 2020, it will ban countless food labels that are in use today. One such label is the term “veggie burger.” Considering its prevalence in Louisiana’s marketplace, the term “veggie burger” should be evaluated under the Central Hudson analysis. The analysis, however, would be the same for any term that the Act covers, and it begins with the threshold question—“whether the expression is protected by the First Amendment.” Answering the threshold question requires two sub-inquiries because commercial speech is only protected when it concerns (1) lawful activity and (2) is not false or inherently misleading.
The first sub-inquiry is whether the speech is related to a lawful activity. The answer to this question can only be “no” if selling veggie burgers is unlawful. In Louisiana, it is lawful to sell veggie burgers. As a result, the commercial speech—labeling a food product a “veggie burger”—is related to a lawful activity, selling veggie burgers. The second sub-inquiry is whether use of the term “veggie burger” is false or inherently misleading. Louisiana, as the party seeking to uphold the restriction, would have to produce evidence that use of the term “veggie burger” is false or inherently misleading. Louisiana’s evidence “must demonstrate that the harms it recites are real and that its restriction [of labeling] will in fact alleviate them to a material degree,” but the evidence presented cannot be speculation or conjecture. Presently, studies show that consumers are not misled or confused by use of the term “veggie burger.”
At this stage of the analysis, it is worth pausing to address and dispel an argument relevant in certain instances. Louisiana’s Act defines 18 terms. “Burger” is not one of these terms; however, the term “rice,” for example, is defined. One might argue that use of a defined term in a manner inconsistent with the term’s definition is automatically false or inherently misleading. This contention, however, is not the case. Just because a product labeled “cauliflower rice” fails to meet Louisiana’s definition of “rice” does not automatically mean that use of the term is inherently misleading. Undoubtedly, Louisiana can propose a term’s definition, but to reason that any use of that term inconsistent with Louisiana’s definition is inherently misleading would render all but the threshold question of Central Hudson superfluous. All Louisiana would have to do is redefine pertinent language so that its goals are supported, and the state would never have to worry about its restrictions failing the Central Hudson test.
Continuing with the analysis, and assuming Louisiana fails to meet its burden of proving the speech is false or inherently misleading, use of the term “veggie burger” will merit First Amendment protection. Louisiana’s Act is now subject to intermediate scrutiny under the remainder of the Central Hudson test.
The first prong of intermediate scrutiny is whether Louisiana’s asserted governmental interest is substantial. In Ocheesee, the parties agreed that Florida had a substantial interest in combating deception and establishing nutritional standards for milk. The court in Ocheesee assumed, without deciding, that these interests were substantial. Louisiana would likely assert similar interests. Assuming that these interests are substantial, the second prong is whether Louisiana’s regulation directly advances the governmental interest. The answer to this would likely be in the affirmative because the Act directly advances the governmental interest. The third prong considers whether the regulation is not more extensive than necessary to serve that interest. Because the broadness of the Act makes it unlikely to pass this third prong, the Act will likely be deemed more extensive than necessary to serve the governmental interest.
Louisiana’s Truth in Labeling of Food Products Act is supposedly designed to protect consumers from misleading and false labeling of food products. The broad nature of the Act, however, makes it a likely target for litigation. If the Act were challenged in court, it is unlikely that the Act would withstand a First Amendment challenge.
 Kelly Tyko, Burger King’s Plant-Based Impossible Whopper Available Nationwide for a Limited Time, USA Today (updated Aug. 8, 2019), https://www.usatoday.com/story/money/food/2019/08/01/burger-king-impossible-whopper-vegan-burger-going-nationwide/1821429001/.
 The Whopper consists of a beef patty topped with lettuce, tomatoes, mayonnaise, ketchup, pickles, and white onions on a sesame seed bun. Whopper, Burger King, https://www.bk.com/menu-item/whopper (last visited Oct. 24, 2019).
 Burger King + Impossible Foods, Impossible Foods, https://impossiblefoods.com/burgerking/ (last visited Sept. 30, 2019).
 “P.L.T.” stands for “Plant. Lettuce. Tomato.” Maria Yagoda, McDonald’s Is Testing Plant-Based Patty Developed with Beyond Meat, Food & Wine (Sept. 26, 2019), https://www.foodandwine.com/news/mcdonalds-testing-plant-based-patty.
 “[A]lternative meat is a food product that is made to imitate the look, feel, and taste of traditional meat dishes. But they are actually made of plant proteins or other meatless ingredients.” Annie Pilon, Small Restaurants Should Consider Alternative Meat Trend, Small Business Trends (Aug. 14, 2019), https://smallbiztrends.com/2019/08/alternative-meat.html.
 See Tina Bellon, Plant-Based Meat Alternatives Crowd U.S. Grocery Stores, Reuters (Aug. 19, 2019), https://www.reuters.com/article/us-beyond-meat-retail-factbox/plant-based-meat-alternatives-crowd-u-s-grocery-stores-idUSKCN1V91MK.
 See Julia B. Olayanju, Plant-Based Meat Alternatives: Perspectives on Consumer Demands and Future Directions., Forbes (July 30, 2019, 12:07 PM), https://www.forbes.com/sites/juliabolayanju/2019/07/30/plant-based-meat-alternatives-perspectives-on-consumer-demands-and-future-directions/#3826ea7a6daa.
 “Person” means an individual, partnership, limited liability company, limited liability partnership, corporation, trust, firm, company, or other entity doing business in Louisiana. La. Rev. Stat. § 3:4743(14) (effective Oct. 1, 2020).
 La. Rev. Stat. § 3:4744(A)–(B) (effective Oct. 1, 2020).
 See La. Rev. Stat. § 3:4743 (effective Oct. 1, 2020).
 Louisiana Governor Signs Food Labeling Restrictions Into Law, WAFB (Updated June 17, 2019, 5:18 PM), https://www.wafb.com/2019/06/17/louisiana-governor-signs-food-labeling-restrictions-into-law/.
 Cell-cultured meat is grown in a lab from animal muscle cells. The cells are then combined with fat cells and additives for color, flavor, and texture. The entire cell-to-fork process takes two to six weeks. Daphne Ewing-Chow, Is Cultured Meat the Answer to the World’s Meat Problem?, Forbes (June 20, 2019, 2:08 PM), https://www.forbes.com/sites/daphneewingchow/2019/06/20/is-cultured-meat-the-answer-to-the-worlds-meat-problem/#490bdd564468.
 See La. Rev. Stat. § 3:4743 (effective Oct. 1, 2020); Sam Karlin, Is “Cauliflower Rice” Misleading? “Truth in Labeling” Bill for Veggies Nears Governor’s Desk, Advocate (June 3, 2019, 12:04 PM), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_b36be194-8621-11e9-b7c9-5b8506770731.html. Republican Representative John Stefanski, who handled the measure in the House, has said that it “protects the agriculture industry and would get ahead of the growing trend of cell-cultured meat grown in labs.” Id.
 La. Rev. Stat. § 3:4746(A) (effective Oct. 1, 2020).
 S.B. 152, 2019 Reg. Sess. (La. 2019).
 Sarah Min, Purveyors of Fake and Real Meat Are Going for Blood in Legal Fights over Labeling, CBS News (July 29, 2019, 3:25 PM), https://www.cbsnews.com/news/fake-meat-and-real-meat-companies-are-going-for-blood-in-legal-fights-over-truth-in-labeling/; Alina Selyukh, What Gets to Be a ‘Burger’? States Restrict Labels on Plant-Based Meat, NPR (July 23, 2019, 3:57 PM), https://www.npr.org/sections/thesalt/2019/07/23/744083270/what-gets-to-be-a-burger-states-restrict-labels-on-plant-based-meat.
 See id.
 Anna Starostinetskaya, Louisiana Bans “Meat” Labels on Vegan Food, VegNews (June 18, 2019), https://vegnews.com/2019/6/louisiana-bans-meat-labels-on-vegan-food.
 Grounds for these violations include allegations that such statutes are overbroad, content-based restrictions that unfairly obstruct competition and create consumer confusion where none previously existed. E.g., Turtle Island Foods Spc v. Soman, 2019 U.S. Dist. LEXIS 225017 (E.D. Ark. Dec. 11, 2019).
 Karlin, supra note 14 (“Louisiana Agriculture Commissioner Mike Strain recently conceded the bill introduced by Thompson will probably draw a lawsuit, something a representative of veggie burger company Impossible Foods also suggested.”) (citations omitted).
 Selyukh, supra note 17.
 Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228, 1231 (11th Cir. 2017).
 Id. at 1240.
 Centr. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 562 (1980).
 Whether the Act would withstand other constitutional challenges, e.g., the Due Process and Dormant Commerce Clauses, are issues for another critique.
 The analysis under Central Hudson is also sometimes called a four-prong test, rather than a threshold question followed by a three-prong test. Ocheesee Creamery, 851 F.3d at 1235 n.8.
 Centr. Hudson, 447 U.S. at 566.
 Ocheesee Creamery, 851 F.3d at 1228, 1235–36.
 Centr. Hudson, 447 U.S. at 566.
 See id at 1235.
 Centr. Hudson, 447 U.S. at 566. See generally Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985).
 See generally Zauderer, 471 U.S. at 638.
 See Edenfield v. Fane, 507 U.S. 761, 770–71 (1993).
 See LSU Manship School News Service, Lauren Heffker, Louisiana ‘Truth In Labeling’ Bill for Food Products Advances, WWL-TV (May 31, 2019, 6:15 AM) https://www.wwltv.com/article/news/politics/louisiana-truth-in-labeling-bill-for-food-products-advances/289-8a4e946d-79a6-49aa-9886-c362537c62cc.
 La. Rev. Stat. § 3:4743(18) (effective Oct. 1, 2020).
 See Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228, 1238 (2017). However, “[t]his is not to say that a state’s definition of a term might not become, over time and through popular adoption, the standard meaning of a word, such that usage inconsistent with the statutory definition could indeed be inherently misleading.” Id. at 1239.
 Id. at 1238.
 See Centr. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980).
 Ocheesee Creamery, 851 F.3d at 1240.
 See id.
 See Centr. Hudson, 447 U.S. at 566.
 La. Rev. Stat. § 3:4742 (effective Oct. 1, 2020).