Turtle Island Foods SPC v. Strain

594 F.Supp.3d 692

TURTLE ISLAND FOODS SPC

v.Michael G. STRAIN, in his official capacity as Commissioner of Agriculture and Forestry

CIVIL ACTION NO. 20-00674-BAJ-EWD

United States District Court, M.D. Louisiana.

Signed March 28, 2022

Scott L. Sternberg, Graham Williams, Sternberg, Naccari & White LLC, New Orleans, LA, Michael Andrew Foley, Tarak Anada, Jones Walker, New Orleans, LA, Amanda Howell, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, Caitlin M. Foley, Pro Hac Vice, Animal Legal Defense Fund., Chicago, IL, Laura R. Braden, Pro Hac Vice, The Good Food Institute, Washington, DC, for Turtle Island Foods SPC.

E. John Litchfield, Berrigan Litchfield, LLC, New Orleans, LA, Michael Jay Marsiglia, Berrigan Litchfield, Metairie, LA, for Michael G. Strain.

RULING AND ORDER

BRIAN A. JACKSON, UNITED STATES DISTRICT JUDGE

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. (Doc. 51; Doc. 52). For the reasons stated herein, Plaintiff's 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, ¶ 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.

(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 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). plaintiff's labels and marketing materials clearly state that its products are plant-based, meatless, vegetarian, or vegan, and accurately list the product's ingredients. (Doc. 37-1, ¶¶ 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. 37-1, ¶ 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. 39-1, ¶ 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 Plaintiff's labels. (Doc. 37-1, ¶ 8; Doc. 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, ¶ 9; Doc. 45-1).

Defendant has reviewed Plaintiff's labels and determined that they do not violate the Act. (Doc. 36-2, ¶ 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. §§ 1331 and 1343(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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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." Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 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. E.g., Broussard v. Oryx Energy Co. , 110 F. Supp. 2d 532, 536 (E.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.").

III. 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 Plaintiff's 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. (Id.). Because there is no concrete dispute between the parties, Defendant asserts that the Court does not have jurisdiction. (Id.).

Plaintiff responds that it has standing for three main reasons: (1) the plain language of the Act applies to Plaintiff's speech; (2) Plaintiff has a reasonable fear of enforcement; and (3) Plaintiff's intended commercial speech has been chilled by the Act. (Doc. 39, pp. 3–5).

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 (3) is likely to be redressed by a favorable decision. Barilla v. City of Hous., Tex. , 13 F.4th 427, 431 (5th Cir. 2021) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ; Va. v. Am. Booksellers Ass'n , 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (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 613, 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, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citing Steffel v. Thompson , ...