Arkansas Made It Illegal to Call a 'Veggie Burger' A 'Burger.' We're Suing.
UPDATE: On December 11, 2019, a federal court granted our motion to block the Arkansas law while the underlying challenge proceeds.
The state of Arkansas thinks you’re confused about whether a veggie burger comes from a cow. In fact, it thinks you’re so confused that it a making it illegal for companies to use words like “meat,” “roast,” and “sausage” to describe products that are not made from animals. Under the law, it doesn’t matter if those words are modified by “vegan,” “veggie,” or “plant-based.”
Rather than focusing on genuine consumer concerns — such as rising healthcare and education costs — Arkansas politicians have decided to take on an imaginary crisis: confusing a veggie burger for a hamburger, or almond milk for cow’s milk.
Why? To “protect the agricultural producers in the state,” one of the law’s proponents admitted.
Not only is Arkansas’ latest law absurd and unnecessary, it’s also unconstitutional. It violates the First Amendment by censoring truthful speech in order to protect the economic interests of the meat industry. Together with the Good Food Institute, the Animal Legal Defense Fund, and the ACLU of Arkansas, we filed a lawsuit today on behalf of Tofurky challenging the law.
From to , consumers are increasingly interested in alternatives to food products derived from live animals. Right now, most of those alternatives are made from plants. But companies are also investing in technologies that cultivate meat from animal cells, effectively allowing them to make beef without the cow. The meat and dairy industries are worried about these new competitors, identifying them as one of the “” the animal meat industry faces in 2018. But instead of competing in the free market, industry groups have enlisted friendly state legislatures and regulators to give them an upper hand. Over the past year, states throughout the country, including Missouri, Mississippi, Louisiana, and South Dakota, passed a new of meat censorship laws that prohibit companies from using terms like “veggie bacon,” “cauliflower rice,” or “almond milk.”
The laws’ proponents insist that they’re just trying to prevent consumers from being misled. One former FDA commissioner memorably that almond milk is a contradiction in terms because “almonds don’t lactate.” But consumers know that, of course, and it’s absurd to suggest otherwise. As Republican Senator Mike Lee explained, “No one buys almond milk under the false illusions that it came from a cow. They buy almond milk because it didn’t come from a cow.”
Businesses often rely on figurative language to help communicate information about the flavor, texture, or appearance of their products. Consumers know that “peanut butter” is not made from cows, but the product’s name efficiently informs them that it spreads like butter. “Veggie bacon” is appealing to consumers who enjoy the distinctive taste, smell, and crunch of conventional bacon, but who prefer plant-based foods for any number of personal reasons. If companies are forced to describe their products as “savory plant-based protein,” consumers are likely to be much more confused about exactly what it is they’re putting on their plates. And that’s the real purpose of these label censorship laws: creating confusion to protect favored economic interests.
But the First Amendment does not allow the government to censor speech in order to pick winners and losers in the marketplace. After all, consumers rely on the free exchange of truthful information to make their own choices. As the Supreme Court put it in a landmark recognizing constitutional protection for commercial speech, “[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.”
In other words, when the government plays word games to prevent businesses from communicating truthfully about their products, consumers are ultimately the ones who suffer.
Arkansas’ law, and similar laws in other states, must be struck down.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.