by Michelle C. Pardo
Animal rights and environmental activists have long led the charge into federal and state courts with consumer fraud actions challenging representations made about animal products, ostensibly arguing that consumers are misled by animal welfare claims on labels, but often with the ultimate goal of removing from a label something that the activists fear is influencing consumers’ purchase of an animal product.
Missouri’s new, first-in-the-nation law (amending its prior meat advertising law) prohibits companies from “misrepresenting a product as meat that is not derived from harvested livestock or poultry.” Mo. Rev. Stat. § 265.494(7). This amendment may put animal and environmental activist groups on their heels as it changes the way that products not derived from animals can be labeled.
The thrust of the Missouri law is to prevent consumers from confusion that may be created by plant-based or other synthetic meat products as opposed to meat from a raised and slaughtered animal. Violations of the meat advertising law is punishable as a class A misdemeanor and may result in a $1,000 fine and up to a year in prison.
On August 27, 2018, Tofurky (parent company Turtle Island Foods) and the Good Food Institute, represented by, among others, the Animal Legal Defense Fund and the ACLU of Missouri Foundation, brought a lawsuit in federal court in the Western District of Missouri alleging that plaintiffs, “a plant-based meat corporation and a nonprofit corporation that helps create and support companies that produce plant-based and clean meats” are harmed because the Missouri statute is unconstitutional. They seek injunctive and declaratory relief. (Turtle Island Foods d/b/a The Tofurky Company, et al. v. Richardson et al., 2:18-cv-04173-NKL, W.D. Mo.). Plaintiffs claim that the statute is unlawful because it is content-based, overbroad, and vague, that it impedes competition, and that it does nothing to protect the consumer from potentially misleading information. Plant-based products, such as those made from soy, tempeh, and wheat are sold under the Tofurky brand. Tofurky’s products are labeled with familiar meat terminology, such as “hot dogs”, “sausage” and “ham”. Clean meat products (also referred to as “cultured meat” or “lab grown meat”) is a new technology in which meat is grown from in vitro animal cell culture instead of from slaughtered animals. Clean meat products have not yet debuted in the marketplace.
Plaintiffs allege that the aim of the statute is not geared toward protecting consumers, but rather protecting the animal agriculture industry from competition from brands like Tofurky. Supporters of the law have indicated that differentiating labels of beef and chicken from plant-based substitutes provides needed transparency and honesty to consumers and that the law is not intended to disparage other products. At the federal level, a prominent agricultural association had petitioned the Department of Agriculture’s Food Safety and Inspection Service (FSIS) for beef and meat labeling requirements that would have excluded product not derived from animals raised and slaughtered from the definition of “meat” and “beef”.
In a Memorandum issued by the Director’s Office of the Missouri Department of Agriculture (MDA) regarding the new meat advertising law amendments, companies are encouraged to work with MDA to avoid a product recall or enforcement referral for prosecution under the new law. The MDA has provided guidance to plant-based and lab-grown product manufacturers on how to modify their labels to prevent referrals to the county prosecutors. MDA will not refer products with labels that contain, for example, prominent statements that the product is “plant-based”, “veggie”, “lab grown” or a comparable qualifier. Companies selling plant-based products that make the necessary changes to their labels prior to January 1, 2019, will not be the subject of enforcement referrals even if remaining product is in the marketplace with the earlier pre-guidance label.