United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30236

____________

Turtle Island Foods, S.P.C., doing business as Tofurky 

Company, 

Plaintiff—Appellee, 

versus

Michael G. Strain, in his official capacity as Commissioner of 

Agriculture and Forestry, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:20-CV-674

______________________________

Before Smith, Clement, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge: 

A Louisiana statute bars food labeling practices that are misleading. 

The district court found that such a bar infringes on the free speech rights of 

food labelers and enjoined the law. We disagree, and so REVERSE and 

VACATE. 

I 

In 2019, Louisiana passed the Truth in Labeling of Food Products Act 

(the “Act”) to “protect consumers from misleading and false labeling of food 

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2023

Lyle W. Cayce

Clerk

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No. 22-30236

2

products that are edible by humans.” La. Rev. Stat. §§ 3:4741–4746.

The Act bars, among other things, the intentional “misbrand[ing] or 

misrepresent[ing of] any food product as an agricultural product” through 

several different labeling practices. Id. § 3:4744(B). Those practices include 

“[r]epresenting a food product as meat or a meat product when the food 

product is not derived” from various animals. Id. § 3:4744(B)(4). 

Enforcement of the Act is charged to Louisiana’s Commissioner of 

Agriculture and Forestry, a position currently occupied by Michael Strain. 

Despite formulating rules and regulations pertaining to the Act’s 

enforcement, no action has yet been taken. All the same, the statute imposes 

a maximum penalty of $500 per violation per day. La. Rev. Stat.

§ 3:4746(A). 

Turtle Island Foods, S.P.C. (d/b/a Tofurky), is a Washington 

company headquartered in Oregon. Tofurky, “founded on the principle that 

people, animals, and the environment matter more than profit margins,” is 

committed to producing and marketing 100% plant-based food products. 

Those products include plant-based “chick’n,” deli slices, burgers, 

sausages, tempeh, and roasts. Tofurky’s labels say as much: 

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Each label, while employing meat-esque words like “sausage” or “burger,”

prominently indicates that the product is “plant-based.” 

Tofurky markets and sells its products in Louisiana. But now, thanks 

to the Act, Tofurky believes it operates under a constant threat of 

enforcement. Per its CEO, Tofurky lacks the financial and logistical 

resources to create Louisiana-specific labels and cannot guarantee that any 

Tofurky products meant for sale elsewhere would be excluded from 

Louisiana. Further, changing Tofurky’s marketing nationwide would cost 

almost $1,000,000. Rather than do so, Tofurky has “essentially avoided 

saying anything new out of fear of enforcement and has refrained from using 

certain words and images on marketing materials and labels.” It has also 

“removed content from [its] website and online marketing out of fear of 

enforcement . . . .” 

Tofurky sued Strain, seeking declaratory and injunctive relief. The 

parties filed cross motions for summary judgment, and the district court 

sided with Tofurky. It held that Tofurky had standing to challenge the Act 

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and that the statute was an unconstitutional restriction on Tofurky’s right to 

free speech. The State now appeals both holdings.

II

We review de novo the district court’s ruling on standing. See Students 

for Fair Admissions, Inc. v. Univ. of Tex. at Austin, 37 F.4th 1078, 1083 (5th 

Cir. 2022). We also review a grant (or denial) of summary judgment de novo. 

Davidson v. Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018). A 

“court should grant summary judgment when ‘there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of 

law.’” Id. (quoting Fed. R. Civ. P. 56(a)). 

A

First, we must determine whether Tofurky has standing to challenge 

Louisiana’s Truth in Labeling of Food Products Act. We conclude it does. 

To establish standing, Tofurky 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. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). 

The state challenges whether Tofurky has suffered an injury in fact.

1

Tofurky challenges the statute prior to enforcement. In preenforcement free speech challenges, “chilled speech or self-censorship is an 

injury sufficient to confer standing.” Barilla v. City of Houston, 13 F.4th 427, 

_____________________

1 Though we focus primarily on standing’s injury in fact prong, we must 

nevertheless ensure that all standing components are met. See Cleartrac, LLC v. Lanrick 

Contractors, LLC, 53 F.4th 361, 364 (5th Cir. 2022). And here, the other two components 

are: the Act, threatening millions in civil damages for violations, is clearly the cause of 

Tofurky’s chilled speech, and Tofurky’s sought relief—an injunction forbidding Louisiana 

from enforcing the Act—would redress that harm. Tofurky’s standing, then, turns only on 

whether it has suffered an injury in fact. 

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431 (5th Cir. 2021) (citations omitted). Tofurky “need not have experienced 

‘an actual arrest, prosecution, or other enforcement action’ to establish 

standing.” Id. (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158

(2014)). Instead, all Tofurky must show is that: (1) it intends to engage in a 

course of conduct arguably affected with a constitutional interest; (2) that the 

course of action is arguably proscribed by statute; and (3) that there exists a 

credible threat of prosecution under the statute. Driehaus, 573 U.S. at 159.

Tofurky satisfies all three conditions.2 First, Tofurky intends to 

engage in conduct arguably affected by a constitutional interest. The First 

Amendment protects commercial speech so long as that speech is not 

misleading and concerns lawful activity. See Am. Acad. of Implant Dentistry v. 

Parker, 860 F.3d 300, 306 (5th Cir. 2017) (citing Cent. Hudson Gas & Elec. 

Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980)). Tofurky insists 

that it intends to engage in commercial speech through its past and future 

labels. We, like the district court, agree. Tofurky’s labels and marketing—

which no one contends are misleading or involve illegal activity—are just the 

kind of commercial activity the First Amendment protects. 

Second, Tofurky’s intended actions are arguably proscribed by the 

Act. The Act directs that “[n]o person shall intentionally misbrand or 

_____________________

2 The State argues that the Barilla (or Driehaus) standard applies only to the motion 

to dismiss stage, rather than the summary judgment stage. But nothing in either case was 

so limited, and courts have applied the Barilla standard at summary judgment many times. 

See, e.g., N.H. Lottery Comm’n v. Rosen, 986 F.3d 38, 49–52 (1st Cir. 2021) (applying 

Driehaus to a motion to dismiss converted to a motion for summary judgment); N.J. 

Bankers Assoc. v. Att’y Gen. N.J., 49 F.4th 849, 855–56 (3rd Cir. 2022) (applying Driehaus

to cross appeals of summary judgment motions); Md. Shall Issue, Inc. v. Hogan, 971 F.3d 

199, 217–18 (4th Cir. 2020) (similar). What changes is not the standard, but rather the 

evidentiary burden on the party claiming standing. See Barilla, 13 F.4th at 431 (explaining 

that the plaintiff bears the burden of establishing standing “in the same way as any other 

matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of 

evidence required at the successive stages of the litigation” (citation omitted)).

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misrepresent any food product as an agricultural product through any activity 

including:

[ . . . ]

(2) Selling a food product under the name of an 

agricultural product.

[ . . . ]

(4) 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.

[ . . . ]

(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.

La. Rev. Stat. § 3:4744.3 The statute defines “misbrand” as 

“intentionally identify[ing] or label[ing] a food product in a false or 

misleading way.” Id. § 3:4743(12). To “misrepresent” also requires 

intention. See id. § 3:4743(13). “Meat” is defined as “a portion of a beef, 

_____________________

3 The Act defines “person” as “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). That definition 

encompasses Tofurky. 

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pork, [or] poultry . . . carcass that is edible by humans but does not include a 

. . . [s]ynthetic product derived from a plant, insect, or other source.” Id. 

§ 3:4743(10)(a) (emphasis added).

To the State, the intention requirement begins and ends the game: 

because Tofurky does not intend to mislead with any of its labels and has not 

proven “that it intends to break Louisiana’s labeling law,” nothing Tofurky 

does is proscribed by the statute. That contrasts with Barilla, says the State, 

where the plaintiff alleged he would openly busk where it was illegal to do so. 

Per the State, to have standing, Tofurky needs to “establish[] that it intends 

to label its food products by misbranding them or by misleading its customers 

so as to be in violation . . . .” 

Tofurky insists that the intention to mislead is not required. Instead, 

says Tofurky, the leading clause of § 3:4744(B)—“No person shall 

intentionally misbrand or misrepresent any food product as an agricultural 

product through any activity including:”—expands the definition of 

“intentionally misbrand or misrepresent” to include the twelve subsequent 

actions. Misbranding or misrepresenting then includes “representing a food 

product as meat” when it did not come from a harvested animal or “as pork 

or a pork product” when it did not come from a domesticated swine. So, 

because Tofurky sells products labeled and advertised as plant-based beef, 

pork, or poultry—but that are explicitly exempted from the Act’s definition of 

meat because they are plant-derived—it is by definition misbranding its 

products, and faces liability.

Tofurky need not establish that it openly intends to violate the Act. As 

the Supreme Court has stressed time and again, “[n]othing in [its] decisions 

requires a plaintiff who wishes to challenge the constitutionality of a law to 

confess that he will in fact violate that law.” Driehaus, 573 U.S. at 163; see also 

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979) 

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(holding a case justiciable even though the plaintiffs disavowed any intent to 

“propagate untruths”). The State demands too much of Tofurky. While 

everyone agrees that Tofurky does not intentionally misrepresent its 

products as meat and does not intend to start doing so, Tofurky has standing 

if its intended action—continuing with its “plant-based” labels that use 

meat-esque words—is arguably proscribed. 

And here, it is: the Act arguably sweeps broadly enough to capture 

Tofurky’s conduct. Though the State belabors that § 4744, and the Act’s 

definitions for “misbrand” and “misrepresent,” require intentional

mislabeling, Tofurky’s alternative reading is arguable. As Tofurky notes, the 

demand for intention could be read one of two ways. First, it could mean that 

the actor intended to mislead (e.g., we make a soy product, but we want you 

to think it’s chicken and label it so). This interpretation would not ensnare 

Tofurky’s conduct. But second, it could also mean that the actor 

intentionally used a label that was independently misleading, the actor’s 

intent in using that label notwithstanding (e.g., we make a soy product and 

label it in a way that we think conveys that it’s a soy product, but you’re 

confused and think the product is chicken). This latter interpretation could 

doom Tofurky if a consumer (or future Commissioner) believes its labels to 

be misleading, no matter Tofurky’s intent in using those labels. Further still, 

the Act does not define “represent.” If Tofurky is correct that the § 4744 

subparts expand the definition of “intentionally misbrand or misrepresent,” 

that they employ meat-esque words on their labels could arguably represent 

those products as meat and, therefore, misbrand them. Additionally, there is 

no explicit safe harbor for meat-like, plant-based products as found in similar 

statutes in other states. See, e.g., Okla. Stat. tit. 2 § 5-107 (“[P]roduct 

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

statute] so long as the packaging displays that the product is derived from 

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plant-based sources . . . .”). Instead, the Act clarifies that Tofurky’s products 

are not meat and punishes representations that they are.

While Tofurky’s interpretation may not be the best interpretation, the 

test doesn’t require that. See, e.g., Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 

2022) (“The Supreme Court’s opinion in [Driehaus] makes clear that courts 

are to consider whether the plaintiff’s intended conduct is ‘arguably 

proscribed’ by the challenged statute, not whether the intended conduct is in 

fact proscribed.”). Because Tofurky’s reading is arguable, it satisfies this 

prong. 

And third, Tofurky faces a substantial (or credible) threat of 

enforcement. When we face a pre-enforcement challenge “to recently 

enacted (or, at least, non-moribund) statutes that facially restrict expressive 

activity by the class to which the plaintiff belongs, [we] will assume a credible 

threat of prosecution in the absence of compelling contrary evidence.” Speech 

First, Inc. v. Fenves, 979 F.3d 319, 335 (5th Cir. 2020) (quotations and citation 

omitted). Tofurky plainly belongs to a class that is facially restricted by the 

policy: it is a company that labels, markets, and sells food products in 

Louisiana. So, we assume a credible prosecutorial threat absent compelling 

evidence to the contrary. 

Nothing here compels a different conclusion. The Commissioner 

admits that his office has formulated rules and regulations for the Act’s 

implementation. Once this case ends, he plans to begin enforcement. While 

the State insists that Tofurky’s nine demonstrative labels do not violate the 

Act, it nevertheless declines to make any “representations as to whether any 

other label of Tofurky would be violative of the provisions of the Act.” Even 

the State’s disclaimed intent to penalize the nine labels is not compelling. See 

Speech First, 979 F.3d at 336 (holding as “not compelling” evidence that the 

policymaker “lack[ed] any intention to penalize the intended conduct of [the 

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plaintiff’s] members”). And besides, nothing binds the Commissioner 

here—he (or a future holder of his office) could change his mind and decide 

Tofurky’s labels do violate the statute. Cf. Turtle Island Foods SPC v. Soman, 

2022 WL 4627711, at *8 (E.D. Ark. 2022) (“There is nothing stopping the 

State from simply changing its mind and deciding to prosecute Tofurky 

during the pendency of this litigation, despite its expressed intention thus far 

to postpone any enforcement until the resolution of Tofurky’s constitutional 

challenge.”). Thus, Tofurky faces a substantial threat of enforcement.

All told, then, Tofurky satisfies the three prongs needed to 

demonstrate an injury in fact in a pre-enforcement freedom of speech 

challenge. Because the other two prongs of standing are also satisfied, 

Tofurky’s challenge may proceed.

B

We move on to the merits of Tofurky’s action. As a preliminary 

matter, it is unclear whether Tofurky challenges the Act facially or as applied 

to itself. Therefore, we turn to the language of the lower court’s order to 

evaluate whether it reviewed the case as a facial challenge or as applied to 

Tofurky. See Am. Acad. of Implant Dentistry, 860 F.3d at 306 (“We find that 

answer [to whether the case is a facial or applied challenge] in the district 

court’s own words . . . .”). “The distinction [between a facial and as applied 

challenge] . . . goes to the breadth of the remedy employed by the 

Court . . . .” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010)

(cleaned up). We contrast a facial challenge with “a narrower remedy.” See 

United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995).

Here, the district court found the Act in its entirety to be unconstitutional 

and invalidated the entire statute. So, we evaluate Tofurky’s constitutional 

challenge as one targeting the Act’s facial validity.

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“Principles of judicial restraint must be employed before a federal 

court may declare a state law unconstitutional.” Voting for Am., Inc. v. Steen, 

732 F.3d 382, 386 (5th Cir. 2013). In the commercial speech context, “[t]o 

succeed in a typical facial attack, [Tofurky] would have to establish ‘that no 

set of circumstances exists under which [the Act] would be valid,’ or that the 

statute lacks any ‘plainly legitimate sweep . . . .’” United States v. Stevens, 559 

U.S. 460, 472 (2010) (citation omitted).4 Also, “[u]nder the constitutionalavoidance canon,” we “shun an interpretation that raises serious 

constitutional doubts and instead adopt an alternative that avoids those 

problems.” Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). With these 

principles in mind, we review the district court’s facial invalidation of the Act 

and the State’s challenge to that decision.

In the merits section of its order, the district court evaluated

Tofurky’s claim that the Act unconstitutionally infringed its commercial free 

speech under the First Amendment. The district court then applied the 

Central Hudson framework to its interpretation of the Act. See Cent. Hudson, 

447 U.S. at 566. The district court accepted the parties’ agreement that

Tofurky’s commercial speech is not misleading. It then found that the State 

claimed a valid interest in ensuring its citizens are not misled by false or 

misleading labeling and advertising. However, the lower court was skeptical 

whether the statute advanced the State’s proclaimed interest in protecting 

citizens from misleading corporate speech. Regardless, the district court 

concluded that the Act was more extensive than necessary to achieve the 

State’s interest, violating the standard laid out in Central Hudson. Having 

determined that the Act failed one, and possibly two, prongs of the Central 

_____________________

4 In the commercial free speech context, the overbreadth doctrine does not apply. 

See Vill. of Hoffman Ests. v. Flipside Hoffman Ests., Inc., 455 U.S. 489, 496–97 (1982).

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Hudson test, the district court declared the law unconstitutional and enjoined 

the State from enforcing it. 

The State challenges the district court’s order on two grounds. First, 

it argues that the Act applies only to “person[s who] intentionally misbrand 

or misrepresent any food product as an agricultural product [as defined by 

the Act.]” See La. Rev. Stat. § 3:4744(B). Consequently, says the State,

the Central Hudson analysis simply does not apply to the Act. Second, the 

State argues that if we agree with the district court and find Central Hudson 

controls the outcome of this appeal, we should reverse the trial court because 

it incorrectly applied the test. Specifically, the State contends that the Act’s 

intent to “misbrand or misrepresent” requirement ensures that it directly 

advances the State’s interest and goes no further than necessary to advance 

that interest. Via either path, the State concludes that we should reverse the 

district court’s order.

Tofurky counters that the plain meaning of the Act’s text extends 

beyond misleading speech to encompass the company’s non-misleading

labeling. It argues that the district court correctly decided Central Hudson

controlled and did not err in its application. Additionally, Tofurky makes a 

new argument—that the Act is unconstitutionally vague—which was not 

adjudicated by the lower court. 

The Supreme Court held in Central Hudson that the First 

Amendment’s commercial free speech protections only apply to 

“communication [that] is neither misleading nor related to unlawful

activity.” Cent. Hudson, 447 U.S. at 564. The Court further elaborated, 

“there can be no constitutional objection to the suppression of commercial 

messages that do not accurately inform the public about lawful activity. The 

government may ban forms of communication more likely to deceive the 

public than to inform it or commercial speech related to illegal activity.” Id. 

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at 563–64 (citation omitted). So, the First Amendment does not protect 

commercial statements that are actually misleading, meaning they deceive or 

are inherently likely to deceive. See Express Oil Change, L.L.C. v. Miss. Bd. of 

Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483, 488 (5th Cir. 2019). But 

statements that are only potentially misleading are safeguarded by the First 

Amendment and restrictions on such speech must survive intermediate 

scrutiny. Id. The State argues that the Act applies only to actually misleading 

speech, so it falls outside the First Amendment’s protection of commercial 

free speech. We agree.

In a facial challenge, Tofurky bears the heavy burden of showing that 

either “‘no set of circumstances exists under which [the Act] would be 

valid,’ or the statute lacks any ‘plainly legitimate sweep . . . .’” Stevens, 559 

U.S. at 472 (citation omitted). “In determining whether a law is facially 

invalid, we must be careful not to go beyond the statute’s facial requirements 

and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State 

Grange v. Wash. State Republican Party, 552 U.S. 442, 449–50 (2008). The 

Supreme Court has also empowered us to “shun an interpretation that raises 

serious constitutional doubts and instead . . . adopt an alternative that avoids 

those problems.” Jennings, 138 S. Ct. at 836; see also Wash. State Grange, 552 

U.S. at 450–51 (explaining the myriad reasons the Court disfavors facial 

challenges). So, courts are required “to accept a narrowing construction of a 

state law in order to preserve its constitutionality.” Voting for Am., 732 F.3d 

at 396.

The Act states, in the relevant part, “[n]o person shall intentionally 

misbrand or misrepresent any food product as an agricultural product . . . .” 

La. Rev. Stat. § 3:4744(B) (emphasis added). The definitions section of 

the Act defines “[a]gricultural product” as “any beef, pork, poultry, 

crawfish, shrimp, meat, sugar, or rice product that is edible by humans.” Id. 

§ 3:4743(1). As the State construes the Act, it only prohibits a company from 

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intentionally misleading a consumer by claiming a product is made from beef, 

pork, poultry, crawfish, shrimp, meat, sugar, or rice when it is not. Thus, by

the State’s construction, the Act only applies to actually misleading 

representations that fall outside the First Amendment’s protection for 

commercial free speech as defined by Central Hudson. 

The district court did not lend any weight to the State’s interpretation 

of the statute and instead chose to apply Central Hudson’s analysis to its own

interpretation of the Act. In doing so, the district court concluded that the 

Act covered more speech than was necessary to support the State’s interest 

and found the law unconstitutional. But by failing to accept the State’s 

narrower construction of the Act’s text, the district court erred. See Voting 

for Am., Inc., 732 F.3d at 398 (“[W]e must accept the state’s narrowing 

construction of the [Act.]”).

Tofurky would like us to agree with the district court and disregard 

the State’s reading of the Act. It asserts that the statute is appropriately 

construed as barring its truthful conduct when it sells products labeled 

“veggie burgers” or “vegan sausage.” Appellee takes issue with the 

“laundry list of speech” that it argues the Act defines as “‘intentionally 

misbrand[ing] or misrepresent[ing].’” As an illustration of its point, Tofurky 

examines paragraph (9) of the Act, which states that intentionally 

misbranding or misrepresenting includes “[u]tilizing 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.” La. Rev. 

Stat. § 3:4744(B)(9); Tofurky reads this language as encompassing its 

conduct in advertising, labeling, and selling “plant-based sausage” or “hamstyle roast.” Tofurky worries that it could be held liable for making a plantbased product and labeling it in a way that it thinks conveys that the item is a 

plant-based product. This could happen, according to Tofurky, because its

labeling unintentionally confuses a consumer into thinking its product is an 

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agricultural product as defined by the Act. Tofurky concludes by arguing that 

Central Hudson’s First Amendment protections should apply to its conduct 

so it can be protected from enforcement actions in the event of this outcome.

See Express Oil Change, 916 F.3d at 488.

Although this is a way to read the Act, it is far from the only way to 

read the Act. 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. See id. at 488. 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. This interpretation is not contradictory to the Act, and we thus 

accept it for the present purposes of evaluating Tofurky’s facial challenge.

See Voting for Am., Inc., 732 F.3d at 398 (“[A] narrowing interpretation is not 

contradictory to the statute, and the court was thus required to accept it for 

present purposes [of a facial challenge].”); see also Express Oil Change, 916 

F.3d at 488. 

The district court erred in ignoring the State’s limiting construction

and in implementing its own interpretation of the Act. That narrower 

interpretation regulates content that falls outside the purview of Central 

Hudson. Consequently, we conclude that the Act, when narrowly construed, 

does not violate the First Amendment’s protection of commercial free 

speech.

III

The district court’s judgment is REVERSED, and its injunction is 

VACATED. 

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