Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF OKLAHOMA
`
`UPTON’S NATURALS CO.; and
`THE PLANT BASED FOODS
`ASSOCIATION,
`
`Plaintiffs,
`
`
`
`vs.
`
`KEVIN STITT, in his official
`capacity as Oklahoma Governor; and
`BLAYNE ARTHUR, in her official
`capacity as Oklahoma Commissioner
`of Agriculture,
`
`
`
`Defendants.
`
`CIV-20-938-F
`Civil Action No. _______________
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`Plaintiffs Upton’s Naturals Co. and the Plant Based Foods Association, by and
`
`through their undersigned counsel, hereby file this Complaint for Declaratory and
`
`Injunctive Relief and sue Oklahoma Governor Kevin Stitt and Oklahoma Commissioner
`
`of Agriculture Blayne Arthur, in their respective official capacities, as follows:
`
`INTRODUCTION
`
`1.
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`This is a First Amendment challenge on behalf of plant-based food sellers
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`against Oklahoma’s recently enacted law that requires food companies to alter the content
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`of their speech. Through messages on their labels, Plaintiffs clearly identify their
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`products as plant-based. Oklahoma is nonetheless requiring Plaintiffs to enlarge these
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`disclaimers to the size and prominence of their labels’ largest text—their product names.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF OKLAHOMA
`
`UPTON’S NATURALS CO.; and
`THE PLANT BASED FOODS
`ASSOCIATION,
`
`Plaintiffs,
`
`
`
`vs.
`
`KEVIN STITT, in his official
`capacity as Oklahoma Governor; and
`BLAYNE ARTHUR, in her official
`capacity as Oklahoma Commissioner
`of Agriculture,
`
`
`
`Defendants.
`
`CIV-20-938-F
`Civil Action No. _______________
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`Plaintiffs Upton’s Naturals Co. and the Plant Based Foods Association, by and
`
`through their undersigned counsel, hereby file this Complaint for Declaratory and
`
`Injunctive Relief and sue Oklahoma Governor Kevin Stitt and Oklahoma Commissioner
`
`of Agriculture Blayne Arthur, in their respective official capacities, as follows:
`
`INTRODUCTION
`
`1.
`
`This is a First Amendment challenge on behalf of plant-based food sellers
`
`against Oklahoma’s recently enacted law that requires food companies to alter the content
`
`of their speech. Through messages on their labels, Plaintiffs clearly identify their
`
`products as plant-based. Oklahoma is nonetheless requiring Plaintiffs to enlarge these
`
`disclaimers to the size and prominence of their labels’ largest text—their product names.
`
`
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 2 of 22
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`But there is no legitimate reason for this oversized-warning requirement, which treats
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`Plaintiffs’ healthy products like cigarettes or alcohol.
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`PARTIES
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`2.
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`Plaintiff Upton’s Naturals Co. (“Upton’s Naturals”) is an Illinois
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`corporation that sells plant-based foods in many states, including Oklahoma, and is being
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`harmed by the challenged law.
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`3.
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`Plaintiff Plant Based Foods Association (“PBFA”) is the national
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`association of plant-based food manufacturers, ingredient suppliers, restaurants, and
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`distributors. The Association consists of over 170 members, a substantial number of
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`which sell plant-based foods in Oklahoma and are being harmed by the challenged law.
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`PBFA is a California nonprofit corporation.
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`4.
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`Defendant Kevin Stitt (“Governor Stitt”) is the Governor of Oklahoma. As
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`Governor, he has direct authority over executive branch personnel and law enforcement
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`officers charged with enforcing the challenged law. He is being sued only in his official
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`capacity.
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`5.
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`Defendant Blayne Arthur (“Commissioner Arthur”) is the Oklahoma
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`Commissioner of Agriculture. Commissioner Arthur has direct authority over the
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`Oklahoma Department of Agriculture, Food and Forestry’s personnel and is charged with
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`the responsibility of enforcing the related laws, regulations, and policies. She is being
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`sued only in her official capacity.
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`2
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 3 of 22
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`JURISDICTION AND VENUE
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`6.
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`Plaintiffs bring this civil rights lawsuit pursuant to the First Amendment to
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`the United States Constitution, the Fourteenth Amendment to the United States
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`Constitution, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Declaratory
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`Judgment Act, 28 U.S.C. §§ 2201–02, for violations of the First and Fourteenth
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`Amendments to the United States Constitution.
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`7.
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`Plaintiffs seek declaratory and injunctive relief against Oklahoma’s so-
`
`called “Meat Consumer Protection Act” (the “Act”). As of November 1, 2020, this Act
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`will prohibit sellers of plant-based foods from using meat terms to describe their foods
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`unless they have a disclaimer—in the same “size and prominence” as their product
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`names—that their products are plant-based.
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`8.
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`This Court has subject-matter jurisdiction under 28 U.S.C. § 1331, as
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`Plaintiffs’ claim arises under federal law.
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`9.
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`Venue lies in this Court pursuant to 28 U.S.C. § 1391(b)(2) and 28 U.S.C. §
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`1391(e)(1), as a substantial part of the events giving rise to Plaintiffs’ claims occurred in
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`this Court’s District.
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`STATEMENT OF FACTS
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`The Oklahoma Legislature passed the Act to protect the meat industry from competition
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`10.
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`Prior to and during Oklahoma’s 2020 Legislative Session, powerful meat-
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`industry lobbying groups asked the Oklahoma Legislature to make it more difficult for
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`sellers of meat alternatives to compete with the meat industry.
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`11.
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`The meat-industry groups advocating in favor of the Act included the
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`Oklahoma Cattlemen’s Association and Oklahoma Pork Council.
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`12.
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`The Act was passed as part of House Bill 3806.
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`13. According to the Oklahoma Cattlemen’s Association, it “brought” House
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`Bill 3806 to the Oklahoma Legislature.
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`14.
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`The lead sponsor for House Bill 3806 in the Oklahoma House of
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`Representatives—Representative Toni Hasenbeck—was one of the Oklahoma
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`Cattlemen’s Association’s members.
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`15.
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`In lobbying for House Bill 3806, the Oklahoma Cattlemen’s Association
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`worked closely with the Oklahoma Pork Council and the Oklahoma Department of
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`Agriculture, Food and Forestry.
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`16. As a direct result of meat-industry groups’ lobbying, the Oklahoma
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`Legislature passed the Act during its 2020 Legislative Session.
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`17.
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`The Oklahoma Legislature passed the Act to protect meat-industry groups
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`from competition by plant-based food sellers.
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`18. Representative Hasenbeck has said: “I am always willing to help our beef
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`producers as they toil to raise a great product for our consumers.”
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`19.
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`In August 2020, the Oklahoma Cattlemen’s Association recognized
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`Representative Hasenbeck with a “Legislative Appreciation Award” for shepherding
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`House Bill 3806 through the Oklahoma Legislature.
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`20. After the Oklahoma Legislature passed the Act, Governor Stitt signed the
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`Act into law.
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`4
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`21.
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`22.
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`The Act will take effect on November 1, 2020.
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`The Act is to be codified through Sections 1-3 and 5-107 of Title 2 of the
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`Oklahoma Statutes.
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`23.
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`The Act expressly prohibits advertising “a product as meat that is not
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`derived from harvested production livestock.”
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`24. However, “product packaging for plant-based items shall not be considered
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`in violation of [the Act] so long as the packaging displays that the product is derived from
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`plant-based sources in type that is uniform in size and prominence to the name of the
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`product.”
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`25. Reading these provisions together, labels for plant-based foods may not use
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`meat terms unless they have a disclaimer “that the product is derived from plant-based
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`sources in type that is uniform in size and prominence to the name of the product” (the
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`“Compelled Disclaimer”).
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`26.
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`27.
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`The Act defines “meat” as “any edible portion of livestock or part thereof.”
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`The Act defines “livestock” as “any cattle, bison, horses, sheep, goats,
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`asses, mules, swine, domesticated rabbits, and chickens, turkeys, and other domesticated
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`fowl, and any animal or bird in captivity.”
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`28.
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`29.
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`30.
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`For purposes of the Act, beef is a type of meat.
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`The Act defines “beef” as “the flesh of a bovine animal.”
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`The Act defines “beef product” as an “edible product[] produced in whole
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`or in part from beef, excluding milk and milk products.”
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`31.
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`For purposes of the Act, chicken is a type of meat.
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`5
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`32.
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`33.
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`34.
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`For purposes of the Act, pork is a type of meat.
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`The Act defines “pork” as “the flesh of a porcine animal.”
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`The Act defines “pork product[]” as a “product or byproduct produced in
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`whole or in part from pork.”
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`35.
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`36.
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`37.
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`38.
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`39.
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`40.
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`41.
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`42.
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`43.
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`44.
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`For purposes of the Act, burgers are meat.
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`For purposes of the Act, hot dogs are meat.
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`For purposes of the Act, meatballs are meat.
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`For purposes of the Act, jerky is meat.
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`For purposes of the Act, sausages are meat.
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`For purposes of the Act, chorizo is meat.
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`For purposes of the Act, steaks are meat.
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`For purposes of the Act, bacon is meat.
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`For purposes of the Act, corned beef is meat.
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`The Act is unequivocal in its requirement that, without the Compelled
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`Disclaimer, plant-based foods cannot be labeled through these terms.
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`45.
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`The Act has no exception for the context in which these terms are used
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`without the Compelled Disclaimer.
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`46.
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`The Act prohibits plant-based foods from being labeled as “beef” without
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`the Compelled Disclaimer, even if they are otherwise labeled as “meatless,” “vegan,” or
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`“plant-based.”
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`6
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 7 of 22
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`47.
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`The Act prohibits plant-based foods from being labeled as “chicken”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`48.
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`The Act prohibits plant-based foods from being labeled as “pork” without
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`the Compelled Disclaimer, even if they are otherwise labeled as “meatless,” “vegan,” or
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`“plant-based.”.
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`49.
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`The Act prohibits plant-based foods from being labeled as “burgers”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`50.
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`The Act prohibits plant-based foods from being labeled as “hot dogs”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`51.
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`The Act prohibits plant-based foods from being labeled as “meatballs”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`52.
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`The Act prohibits plant-based foods from being labeled as “jerky” without
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`the Compelled Disclaimer, even if they are otherwise labeled as “meatless,” “vegan,” or
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`“plant-based.”
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`53.
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`The Act prohibits plant-based foods from being labeled as “sausages”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`7
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 8 of 22
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`54.
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`The Act prohibits plant-based foods from being labeled as “chorizo”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`55.
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`The Act prohibits plant-based foods from being labeled as “steaks” without
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`the Compelled Disclaimer, even if they are otherwise labeled as “meatless,” “vegan,” or
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`“plant-based.”
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`56.
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`The Act prohibits plant-based foods from being labeled as “bacon” without
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`the Compelled Disclaimer, even if they are otherwise labeled as “meatless,” “vegan,” or
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`“plant-based.”
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`57.
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`The Act prohibits plant-based foods from being labeled as “corned beef”
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`without the Compelled Disclaimer, even if they are otherwise labeled as “meatless,”
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`“vegan,” or “plant-based.”
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`58. By prohibiting the use of these terms without the Compelled Disclaimer,
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`the Act creates consumer confusion among reasonable consumers where none existed.
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`59.
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`The Act’s requirements conflict with the common understanding of these
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`terms by the consuming public.
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`60.
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`Penalties for violating the Act can include fines of up to $10,000 per
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`offense.
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`61. Violations of the Act are misdemeanors, which can entail up to a year in
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`prison.
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`62.
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`63.
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`The Act would fail any level of First Amendment scrutiny.
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`The Act is a content-based regulation of speech.
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`8
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 9 of 22
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`64.
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`The Act is unreasonable, unnecessary, does not advance any legitimate
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`government interest, and is not tailored to any legitimate government interest.
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`65.
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`66.
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`67.
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`68.
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`69.
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`The Act does not address any real problem in a meaningful way.
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`The Act is not in the public interest.
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`The Act has no positive impact on society.
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`Instead, the Act harms society.
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`The Act is more burdensome than numerous other alternatives, including
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`but not limited to a requirement that sellers of plant-based foods use meat terms in
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`context so as to not mislead consumers, which they are already doing.
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`70. Under its 2019 statutes, Oklahoma already required plant-based foods to
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`“display[] that the[ir] product is derived from plant-based sources,” but without requiring
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`this display to be “uniform in size and prominence” to their product names. Okla. St.
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`Ann. tit. 63, § 317(7).
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`71. No state besides Oklahoma requires that labels for plant-based foods have
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`disclaimers “uniform in size and prominence” to their product names.
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`72.
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`There are cigarette labels that have product names the same size as
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`mandatory disclaimers on the labels.
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`73. Also, alcohol labels’ product names are typically larger than other text on
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`the labels, including mandatory disclaimers.
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`9
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 10 of 22
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`The Plaintiffs and Their Labels
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`Upton’s Naturals
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`74.
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`Plaintiff Upton’s Naturals is located in Chicago, Illinois, and was founded
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`upon vegan values in 2006 to sell a variety of entirely plant- and fruit-based foods.
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`75. Although Upton’s Naturals is relatively small in size, its foods have
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`become popular throughout much of the United States. Oklahoma is among the many
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`locations where Upton’s Naturals sells its foods.
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`76. Upton’s Naturals’ foods are legal to sell in Oklahoma.
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`77. Upton’s Naturals’ foods are marketed to consumers who are looking for
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`alternatives to meat-based products.
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`78.
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`It is extremely important to Upton’s Naturals that customers understand
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`that its foods do not contain meat.
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`79.
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`It would be a disaster for Upton’s Naturals if the public were to think that
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`the company had started selling meat.
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`80. Consequently, Upton’s Naturals makes sure that its food labels are proudly
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`marked as “vegan” and clearly state that the foods do not contain meat.
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`81. Upton’s Naturals’ labels include additional words, phrases, and information
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`to further show that the foods do not contain any meat, like “Try All Our Great Vegan
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`Products,” “Vegan For A Reason,” and the following message: “At Upton’s Naturals,
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`veganism is a way of life, and every meal is an opportunity to show compassion for
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`animals. Thank you for supporting our mission to make delicious vegan foods that
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`anyone can enjoy.”
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 11 of 22
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`82. While Upton’s Naturals’ food labels are clearly marked as “vegan,” the
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`company’s product names are the largest text on most of its labels.
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`83.
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`In order to describe its foods in the clearest possible manner, Upton’s
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`Naturals uses meat terms as part of its descriptions on its labels.
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`84.
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`These terms include, but are not limited to, “bacon,” “hot dog,” and
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`“chorizo.”
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`85. Upton’s Naturals’ uses of these terms include, but are not limited to, its
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`vegan “ch’eesy bacon mac” and “vegan hot dog.”
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`86. No reasonable consumer would be misled by the way Upton’s Naturals
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`uses these terms.
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`87.
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`These terms, as used by Upton’s Naturals, increase consumer
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`understanding of the foods’ characteristics.
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`88. On the front of Upton’s Naturals’ “ch’eesy bacon mac” label, there are
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`conspicuous disclaimers that the product is “Vegan,” and the product name is in larger
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`type:
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`89. Under the Act, Upton’s Naturals’ “ch’eesy bacon mac” label will be illegal
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`as of November 1, 2020.
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`90. On the front of Upton’s Naturals’ “vegan hot dog” label, there is a
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`conspicuous disclaimer that the product is vegan, and the product name—“Updog”—is in
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`larger type:
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`12
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`91. Under the Act, Upton’s Naturals’ “vegan hot dog” label will be illegal as of
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`November 1, 2020.
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`92.
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`Soon, Upton’s Naturals intends to sell its “jerky bites” product.
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`93. On the front of Upton’s Naturals’ “jerky bites” labels, there will be a
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`conspicuous disclaimer that the product is vegan, and the product name will be in larger
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`type:
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`94. Under the Act, Upton’s Naturals’ “jerky bites” label will be illegal as of
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`November 1, 2020.
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`95.
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`If Upton’s Naturals’ labels did not describe foods using meat terms, the
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`labels would not be in violation of Oklahoma law.
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`96. But for the Act, Upton’s Naturals’ labels would not be in violation of
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`Oklahoma law.
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`97. But for the Act, Upton’s Naturals’ foods are legal to sell in Oklahoma.
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`14
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 15 of 22
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`98. Reasonable consumers are not misled by the way Upton’s Naturals uses
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`terms like “bacon,” “hot dog,” “jerky,” and “chorizo” in context on its labels.
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`99. When used by Upton’s Naturals in context on their labels, these terms
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`provide useful information to reasonable consumers.
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`100. Upton’s Naturals invested significant time and money into designing its
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`labels.
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`101. Upton’s Naturals believes that its labels explain its products better than
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`alternative labels would.
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`102. Upton’s Naturals also believes that its labels are better at persuading
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`consumers to buy its products than alternative labels would be.
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`103. Accordingly, Upton’s Naturals does not want to redesign its labels with the
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`Compelled Disclaimer, which would require either new labels nationwide or special
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`labels for Oklahoma.
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`104.
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`If relief is not granted by this Court, the Act will force Upton’s Naturals to
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`stop advertising (and selling) its products in Oklahoma.
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`105.
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`If relief is not granted by this Court, the Act will harm Upton’s Naturals’
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`business.
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`106.
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`If, as a result of the Act, Upton’s Naturals is forced to stop advertising (and
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`selling) in Oklahoma, consumers will be harmed.
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`PBFA
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`107. Plaintiff PBFA has over 170 members, all of which sell plant-based foods.
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`108. Many of PBFA’s members sell their foods in Oklahoma.
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`15
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`109. PBFA members’ foods are legal to sell in Oklahoma.
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`110.
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`It is extremely important to PBFA’s members that their respective
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`customers understand that their foods do not contain meat.
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`111. Consequently, PBFA’s members clearly label their foods as “vegan,”
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`“meatless,” “plant-based,” or with a similar term that lets customers know that the foods
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`do not contain meat. The labels also typically include additional words, phrases, and
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`information to further show that the foods do not contain any meat.
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`112. While PBFA’s members’ labels tell customers that their foods do not
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`contain meat, their product names are usually the largest text on these labels.
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`113.
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`In order to describe the foods to customers in the clearest possible manner,
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`many of PBFA’s members also use meat terms as part of their labels.
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`114. Some PBFA members’ labels include “beef” in their product names, with a
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`qualifier—sometimes in type smaller than their product names—that the products are
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`plant-based.
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`115.
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`In addition to “beef,” the meat terms used by PBFA’s members include, but
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`are not limited to, “hot dogs,” “burgers,” “bacon,” “meatballs,” “jerky,” and “steaks.”
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`116. No reasonable consumer would be misled by these uses of these terms.
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`117. Reasonable consumers are not misled by the way PBFA’s members use
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`these terms in context on their labels.
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`118. When used by PBFA members in context on their labels, these terms
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`provide useful information to reasonable consumers.
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`119. These terms increase consumer understanding of the foods’ characteristics.
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 17 of 22
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`120. As of November 1, 2020, PBFA members’ use of these terms will be
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`prohibited unless their labels have a disclaimer—“uniform in size and prominence” to
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`their product names—that their product is plant-based.
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`121. For example, some PBFA member labels with “beef” in their product
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`names will be prohibited under the Act as of November 1, 2020, even though their labels
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`have conspicuous qualifiers (sometimes in smaller type than their product names) that
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`their products are “plant-based.”
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`122.
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`If PBFA members’ labels did not describe foods using meat terms, the
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`labels would not be in violation of Oklahoma law.
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`123. But for the Act, PBFA members’ labels would not be in violation of
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`Oklahoma law.
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`124. But for the Act, PBFA members’ foods are legal to sell in Oklahoma.
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`125.
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`If relief is not granted by this Court, the Act will force many of PBFA’s
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`members to either change their labels or to stop advertising (and selling) their products in
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`Oklahoma.
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`126.
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`If relief is not granted by this Court, the Act will harm many of PBFA’s
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`members’ businesses.
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`127.
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`If, as a result of the Act, PBFA’s members are forced to change their labels
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`or stop advertising (and selling) in Oklahoma, consumers will be harmed.
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`Oklahoma already prohibits misleading commercial speech
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`128. Separate from the Act, Oklahoma already has laws that prohibit misleading
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`commercial advertising (the “Consumer Protection Laws”).
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 18 of 22
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`129. The Consumer Protection Laws include prohibitions on misleading labels.
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`130. The Consumer Protection Laws include Okla. Stat. Ann. tit. 63, § 1-
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`1110(a).
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`131. Plaintiffs are not challenging the Consumer Protection Laws.
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`132. Plaintiffs abide by the Consumer Protection Laws and will continue to do
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`so.
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`INJURY TO PLAINTIFFS
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`133. Plaintiffs do not want to add the Compelled Disclaimer to their product
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`labels.
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`134. Plaintiffs’ current labels are their preferred means of communicating with
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`consumers.
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`135. The process of designing food labels is lengthy and cumbersome.
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`136. Even if Plaintiffs were to start redesigning their labels today, the process
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`would not be complete in a timely manner.
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`137.
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`If Plaintiffs were to redesign their labels to comply with the Act, the Act’s
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`Compelled Disclaimer requirement would crowd out speech in their current labels.
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`138.
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`If Plaintiffs were to redesign their labels to comply with the Act, Plaintiffs
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`would incur ongoing extra expenses by being forced to use different labels in Oklahoma
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`than in other states.
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`139. Plaintiffs are concerned and afraid that using terms like “beef,” “bacon,”
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`“chorizo,” “hot dog,” and “jerky” without the Compelled Disclaimer on their labels
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`would subject them to severe criminal and civil penalties.
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`18
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 19 of 22
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`140. The uncertainty caused by the Act is interfering with Plaintiffs’ ability to
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`expand their activities in Oklahoma.
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`141. Defendants’ actions have created a doubt that requires a resolution by this
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`Court regarding Plaintiffs’ right to communicate.
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`142.
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`If the Act goes into effect, it will chill Plaintiffs’ speech.
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`143. Without a declaration from this Court declaring the Act unconstitutional,
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`the Act will chill Plaintiffs’ speech.
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`144. Without a declaration concerning the constitutionality of the Act, Plaintiffs
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`are concerned that Defendants would consider their product labels illegal.
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`145.
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`If this Court declared that the Act was unconstitutional, the declaration
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`would clarify Plaintiffs’ rights and conclusively determine whether they can use non-
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`misleading terms of their choice on their product labels.
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`146. The Act is causing irreparable harm to Plaintiffs and to the consuming
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`public.
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`147. The irreparable harm increases every day.
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`148.
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`If the Act goes into effect, Plaintiffs would be forced to stop advertising
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`(and selling) several of their products in Oklahoma.
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`149. But for the Act, Plaintiffs would continue communicating in Oklahoma
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`through their non-misleading labels for plant-based meat alternatives.
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`150.
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`If this Court enjoined Defendants from enforcing the Act against Plaintiffs,
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`Plaintiffs would continue advertising (and selling) their products in Oklahoma in a non-
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`misleading way.
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`19
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 20 of 22
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`CAUSE OF ACTION
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`The Act violates Plaintiffs’ right to free speech
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`151. Plaintiffs reassert and reallege paragraphs 1 through 150 as if fully set forth
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`therein.
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`152. According to the First Amendment to the United States Constitution,
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`“Congress shall make no law . . . abridging the freedom of speech.”
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`153. The First Amendment has been incorporated to apply to the states through
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`the Fourteenth Amendment.
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`154. Plaintiffs’ labels are non-misleading speech about a lawful activity.
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`155. The Act has abridged Plaintiffs’ freedom of speech and the freedom of
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`speech of anyone else who would communicate in a similar and non-misleading way.
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`156. The Act is a content-based regulation of speech; the Act forces Plaintiffs to
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`alter the content of their speech.
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`157. The Act suppresses helpful, non-misleading speech about the sale of a
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`lawful item.
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`158. The Act is not reasonably related to preventing or correcting any
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`misleading or deceptive speech.
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`159. The interests being furthered by the Act are not legitimate, substantial, or
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`compelling.
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`160. The only interest furthered by the Act is economic protectionism, which is
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`not a legitimate government interest.
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`161. The Act is not appropriately tailored to any legitimate government interest.
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`20
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 21 of 22
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`162. The Act does not directly or materially advance any legitimate government
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`interest.
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`163. The Act is overly extensive and unduly burdensome.
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`164. The Act’s Compelled Disclaimer is not a health or safety warning.
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`165. Both on its face and as applied to Plaintiffs, the Act violates Plaintiffs’ right
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`to free speech guaranteed by the First Amendment to the United States Constitution.
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`166. Unless Defendants are enjoined from enforcing the Act, Plaintiffs will
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`continue to suffer irreparable harm.
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`167. The Act harms the public interest by depriving the public of speech. Unless
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`Defendants are enjoined, the public will continue to suffer this harm.
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`168.
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`If Defendants are enjoined from enforcing the Act, Defendants stand to
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`suffer no harm—there is no risk of financial harm to them because an injunction would
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`not compel them to take any action or obligate any resources.
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`REQUEST FOR RELIEF
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`Therefore, Plaintiffs respectfully request the following relief:
`
`A.
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`A declaratory judgment that, facially and as applied to Plaintiffs, the Act
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`violates the First and Fourteenth Amendments to the United States Constitution;
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`B.
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`A preliminary injunction prohibiting Defendants and their agents from
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`enforcing the Act for the duration of this litigation;
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`C.
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`A permanent injunction prohibiting Defendants and their agents from
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`enforcing the Act;
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`D.
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`An award of attorney’s fees, costs, and expenses in this action; and
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`21
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`
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`Case 5:20-cv-00938-F Document 1 Filed 09/16/20 Page 22 of 22
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`E.
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`Any other legal or equitable relief to which Plaintiffs may show themselves
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`to be justly entitled.
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`DATED: September 16, 2020.
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`22
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`Respectfully submitted,
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`
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`/s/ Adam C. Doverspike
`Adam C. Doverspike, OBA No. 22548
`GABLEGOTWALS
`1100 ONEOK Plaza
`100 West Fifth Street
`Tulsa, Oklahoma 74103
`Tel.: (918) 595-4800
`Fax: (918) 595-4990
`Email: adoverspike@gablelaw.com
`
`Milad Emam*
`VA Bar No. 83861
`INSTITUTE FOR JUSTICE
`901 North Glebe Road, Suite 900
`Arlington, VA 22203
`Tel.: (703) 682-9320
`Fax: (703) 682-9321
`Email: memam@ij.org
`
`Justin Pearson*
`FL Bar No. 597791
`INSTITUTE FOR JUSTICE
`2 South Biscayne Boulevard
`Suite 3180
`Miami, FL 33131
`Tel.: (305) 721-1600
`Fax: (305) 721-1601
`Email: jpearson@ij.org
`
`
`
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`*Pro Hac Vice Application To Be Filed
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`Counsel for Plaintiffs
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`
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