Last week, the 8th Circuit Court of Appeals handed down a ruling in a case involving a Missouri law making it a criminal offense to “misrepresent a product as meat that is not derived from harvested production livestock or poultry.” Violators of the law, Mo. Rev. Stat. §265.494(7), could face up to one year in prison as well as a fine of $1,000.00.
These laws, aimed at companies selling alternative protein sources such as plant-based or cell-cultured, have been passed in several states. Missouri has the distinction of being both the first state to pass the law and the first state to have its constitutionality challenged.
Shortly after it went into effect, businesses including Turtle Island Foods Inc. (the makers of Tofurky) and advocacy groups such as the Animal Legal Defense Fund challenged the law on the grounds that the state statute violated the Free Speech Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Dormant Commerce Clause.
The plaintiffs in the case (“Tofurky”) asked for a preliminary injunction, which would have prevented the state of Missouri from enforcing the new law. In order to obtain a preliminary injunction, the plaintiffs needed to show a likelihood of success on the merits of the case, irreparable injury is likely without a preliminary injunction, a preliminary injunction is fair, and a preliminary injunction serves the public interest. In response, the defendants (Missouri Prosecuting Attorneys) submitted guidance from the Missouri Department of Agriculture, which explained the circumstances under which an alternative-protein food would be acceptable under the law. Specifically, permitted products included those with a
- Prominent statement on the front of the package, immediately before or immediately after the product name, that the product is “plant-based,” “veggie,” “lab-grown,” “lab-created,” or a comparable qualifier; and
- Prominent statement on the package that the product is “made from plants,” “grown in a lab,” or a comparable disclosure.
The district court judge denied the injunction request. The Court determined that the plaintiffs were unlikely to succeed on the First Amendment Claim because “the statute only prohibits companies from misleading consumers into believing that a product is meat from livestock when it is, in fact, plant-based or lab-grown.” Further, he held that Turtle Island Foods was not able to prove a risk of prosecution (“irreparable injury”, in the above listed elements), since their packaging already included the disclaimers discussed above. Tofurky appealed to the Eighth Circuit.
The Eight Circuit agreed with the district court. Judge Melloy, writing for the panel, ruled that the district court had not abused its discretion in denying the injunction request. In support of the decision, the court relied on statements made by Tofurky that “allege they are not in the business of misrepresenting their products as meat. In fact, Tofurky alleges its products are labeled in such a way as to ‘clearly indicate that the products do not contain meat from slaughtered animals’ and are otherwise ‘clearly labeled as plant based, vegan, or vegetarian.’” Relying on the limited advertising material before the court, it could not find even a potential violation of Missouri’s law. The court did emphasize, however, that the evidentiary record after an appropriate fact-finding process might be very different, so the ruling might not be appropriate for reliance at a later date.
The case has now gone back to the district court for further proceedings. Missouri’s law is in effect, and can be enforced.