How meat & dairy “won the fall,” but Tofurky kicked ass in courtroom judo

(Beth Clifton collage)

Tofurky shareholders won “upward of $50 million” too

HOOD RIVER, Oregon––Vegan judokas may particularly appreciate a recent combination of swift moves by the Toyko-based dairy company Morinaga Milk Group,  now owner of The Tofurky Company.

On April 12,  2023,  Morinaga won the key points in a landmark federal case over vegan and vegetarian product labeling by losing the case itself by a 3-0 verdict from a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans.

(Beth Clifton collage)

Japanese tofu firm bought the winner

The case was actually initiated by Tofurky,  of Hood River,  Oregon,  in October 2020.

But on February 15,  2023,  37 years after beginning a long drift away from the animal byproduct business by beginning to manufacture tofu,  the Morinaga Nutritional Foods division bought Turtle Island Foods,  including the Tofurky and Moocho Dairy Free Foods brands.

That put the Morinaga Milk Group into what may have been the last stand for meat and dairy industry attempts to outlaw the use of terms such as “milk,”  “cream,”  “butter,”  and “burger” on plant-based food products.

(Beth Clifton collage)

Strain may need Advil

Technically,  Louisiana agriculture and forestry commissioner Mike Strain won the fall,  to apply judo terminology,  but the exact language of the 5th U.S. Circuit Court of Appeals decision left the meat and dairy industries flat on their backs with legs in the air like a flipped-over dung beetle.

The Morinaga Milk Group may never again choose to champion vegan and vegetarian food labeling rights,  as Tofurky has in recent years,  but the entire plant-based food sector may never again have to,  since the wording of the 5th U.S. Circuit Court of Appeals verdict makes clear that manufacturers and marketers of plant-based “milks,”  “burgers,”  and so forth can only be prosecuted for allegedly mislabeling products if there is actual evidence that consumers are being deceived.

Otherwise,  so long as non-dairy milks are clearly identified as having been made from oats,  rice,  soy beans,  almonds,  etc.,  there is no violation of a law purporting to prevent fraud by reserving the term “milk” for products made from animal lactation.

Who needs foie gras when there is peanut butter?  (Beth Clifton collage)

Peanut butter precedent prevails

The precedents of peanut butter and cream of wheat may be said to have prevailed.

Comparably,  vegan and vegetarian burgers may be plant-based,  if clearly labeled as such.

Explained Reuters business correspondent Jonathan Stempel, “The 5th U.S. Circuit Court of Appeals in New Orleans said the state’s Truth in Labeling of Food Products Act did not infringe Tofurky’s First Amendment commercial free speech rights.

“But while rejecting Tofurky’s claim that the law was unconstitutional on its face,  the panel read the law narrowly,  saying Louisiana meant to punish only companies that ‘actually intend’ to mislead consumers.”

(Beth Clifton collage)

“Tofurky does not intentionally misrepresent its products as meat and does not intend to start”

Wrote circuit judge Edith Brown Clement,  “Everyone agrees that Tofurky does not intentionally misrepresent its products as meat and does not intend to start.

“Nothing in the statute’s language requires the State to enforce its punitive provisions on a company that sells its products in a way that just so happens to confuse a consumer,”  Clement continued in the unanimous ruling.

“The State’s construction limits the Act’s scope,”  Clement found,  “to representations by companies that actually intend consumers to be misled about whether a product is an ‘agricultural product’ when it is not.”

“Companies like Tofurky can rest easier,”  Animal Legal Defense Fund lawyer Amanda Howell told Stempel.  “If you’re not trying to trick consumers,  such as by selling sawdust as a hamburger,  then you should be okay,”  Stempel said,  as lead attorney for the legal team who represented Tofurky.

(Beth Clifton collage)

No selling fake alligator

Saving face for the state,  Louisiana lawyer John Litchfield told Stempel he was pleased that the 5th U.S. Circuit Court of Appeals “understood the intentions of Louisiana’s legislature.

“Legislators tried to protect consumers,  and the court recognized their efforts,”  Litchfield contended.

But the specific language of the Louisiana Truth in Labeling of Food Products Act made clear the protectionist intent of the law.

The letter of the law forbids:

1. Representing a food product as meat or a meat product when the food product is not derived from a harvested beef, pork,  poultry,  alligator,  farm-raised deer,  turtle,  domestic rabbit,  crawfish, or shrimp carcass;
2. Representing a food product as beef or a beef product when the food product is not derived from a domesticated bovine; and
3. 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.

(Beth Clifton collage)

Reversal

The 5th U.S. Circuit Court of Appeals verdict reversed a March 2022 ruling by U.S. District Court for the Middle District of Louisiana judge Brian Jackson.

Jackson concluded that the Truth in Labeling of Food Products Act “impermissibly restricts commercial speech because the speech at issue is not misleading, and while the governmental interest is likely substantial,  the Act is more extensive than necessary to further the government’s interest.”

Jackson suggested that “alternative,  less-restrictive means,  such as a disclaimer,”  already clearly part of Tofurky and other plant-based food product packaging,  can accomplish the same goal of “preventing consumer confusion.”

(Beth Clifton collage)

Law limited to actual fraud

Jackson found that,  as Tofurky contended,  the Louisiana Truth in Labeling of Food Products Act violated the First Amendment to the U.S. Constitution,  by restricting commercial speech rights.

The 5th U.S. Circuit Court of Appeals ruled,  however,  that “Statements that are only potentially misleading are safeguarded by the First Amendment and restrictions on such speech must survive intermediate scrutiny.

“Nothing in the statute’s language requires the State to enforce its punitive provisions on a company that sells its products in a way that just so happens to confuse a consumer,”  the Clement-written appellate opinion continued.

“The State’s construction limits the Act’s scope to representations by companies that actually intend consumers to be misled about whether a product is an ‘agricultural product’ when it is not,”  Clement emphasized.

(Beth Clifton collage)

Plant Based Food Association

Tofurky joined in 2016 with Miyoko’s Kitchen,  Daiya Foods,  and 20 other companies to form the Plant Based Foods Association,  specifically to challenge legislation similar to the Louisiana Truth in Labeling of Food Products Act that was rapidly advancing through Republican-dominated state legislatures throughout the Midwest.

Explained Tofurky chief executive officer Jaime Athos,  “If you make a vegan cheese, you want to call it cheese or some variant of that.  People are buying it to use it as they would cheese.  The common or usual name for something that tastes like cheese and looks like cheese should be cheese,”  Athos said at the time,  “not a nondairy vegan spread or whatever bit of tricky language companies use to label plant-based cheese products.”

Miyoko Schinner.
(Beth Clifton collage)

Tofurky & Miyoko won again & again

Tofurky and a supporting coalition including the American Civil Liberties Union,  the Animal Legal Defense Fund,  and the Good Food Institute in 2018 and 2019 won challenges to “consumer protection” laws restricting the use of “meat and dairy” terminology on plant-based food packaging in Missouri,  Arkansas,  and Oklahoma.

Separately,  making parallel arguments,  Miyoko’s Kitchen,  now called Miyoko’s Creamery,  successfully pushed back against a California Department of Food & Agriculture order to cease using the word “butter” on product labels;  to stop using phrases such as “cruelty free,” “hormone free,” and “lactose free,”  because they imply Miyoko’s products come from animals;  and to quit using a picture of Miyoko Schinner herself hugging a cow.

(See Miyoko court win: the world doesn’t owe Big Dairy a living and Miyoko’s taking the case for vegan cheese to the people as well as the court.)

(Beth Clifton collage)

Plant-based burgers win in European Union

While that was going on in the U.S.,  the European Union Parliament rejected a proposed amendment to the European Union constitution which would have prohibited using terms such as “burger” and “sausage” on plant-based products.

“Backed by the European Union meat lobby,  the amendment was introduced under the auspices of dispelling confusion around the use of meat-related terms on vegan and vegetarian products,”  wrote VegNews senior news editor Anna Starostinetskaya.

But the use of terms such as “cheese” and “yogurt” on vegan dairy alternatives were prohibited,  Anna Starostinetskaya said.

Peanut butter,  of course,  is still peanut butter,  worldwide.

(Beth Clifton collage)

Appeals unlikely

Neither the Morinaga Milk Group nor the Morinaga Nutritional Foods subsidiary are expected to continue the Tofurky series of peremptory challenges to state laws passed to try to protect the meat and dairy industries from competition by forcing plant-based food product makers to label “milks,”  “butters,”  and “burgers” with terms that consumers may not recognize,  or find appetizing.

But the meat and dairy industries are not expected to continue trying to push that tactic,  since even their 5th U.S. Circuit Court of Appeals “victory” in Louisiana leaves current plant-based food product labeling intact,  with small chance––if any––that any new plant-based food product will actually violate the Louisiana Truth in Labeling of Food Products Act as the court interpreted it.

Further,  any meat and dairy industry attempt to appeal the 5th U.S. Circuit Court of Appeals verdict to a full-court panel or to the U.S. Supreme Court,  hoping to broaden it,  would require admitting that the intent of the law was,  and is,  to restrain commercial speech in the very manner that U.S. District Court for the Middle District of Louisiana judge Brian Jackson already found unconstitutional.

That makes such an appeal,  while not impossible,  strategically unlikely.

Seth Tibbott,  founder and chair of The Tofurky Company and author of In Search of the Wild Tofurky. 
(Turtle Island Foods photo)

Tofurky remains family business

Jaime Athos,  stepson of Turtle Island Foods founder Seth Tibbott,  remains as chief executive officer of Tofurky,  following the Morinaga Nutritional Foods acquisition of the company.

Athos told Elaine Watson of AgFunder News in February 2023 that the “Purchase price was more than $50 million.”

Wrote Watson,  “Athos said that Tofurky notched up net sales of $38.9 million in 2019.  Sales leapt up to $46.9 million in 2020 as food consumption shifted to the home during the lockdown [due to COVID-19],  before falling back to $42.4 million in 2021.”

Beth & Merritt Clifton

Turtle Island Foods,  founded in 1980,  began making Tofurky in 1995.  Morinaga Nutritional Foods,  founded in 1985 as Pacific Nutritional Foods,  has been the Tofurky tofu supplier from the beginning,  Athos told Watson.

(See Making a Thanksgiving place for Tofurky.)

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