By Michelle C. Pardo
We previously blogged about the case of Turtle Island Foods, et al. v. Mark Richardson, 2:18-cv-04173, pending in federal court in the Western District of Missouri. Turtle Island Foods, doing business as The Tofurky Company (“Tofurky”) which produces plant-based products, together with The Good Food Institute (an organization founded in part by Bruce Friedrich, former director of PETA’s vegan campaigns), sued Missouri prosecutors over its 2018 amended meat advertising law. The law requires that in order for a product to be labeled as “meat” it must come from “any edible portion of livestock, poultry, or captive cervid carcass or part thereof.” Mo. Rev. Stat. § 265.300(7). Under the amended law, plant based products, such as Tofurky’s veggie burgers or sausage, would be deemed to be misleading unless the labels contain an appropriate qualifier such as “plant-based,” “veggie,” “lab grown,” or “lab created.” Lab-grown or cultured meat products (also referred to as “clean meat”) is a new technology in which meat is grown from in vitro animal cell culture instead of from slaughtered animals. These products have not yet debuted in the marketplace.
Tofurky utilizes plant-based ingredients to approximate the texture, flavor and appearance of conventional meats produced from livestock and its packages feature descriptors like “deli slices,” “smoked ham,” “bologna,” “hot dogs,” “sausages,” “chorizo,” and “ham roast” and other terms that plaintiff Good Food Institute calls “meat analogues.”
Plaintiffs brought their lawsuit in August of 2018 alleging that Missouri’s amended meat advertising law violates the First Amendment, the Dormant Commerce Clause, and their due process rights. Plaintiffs fear that the Missouri law will restrict how they can market, advertise and sell their products in the nationwide marketplace. They sought a preliminary and permanent injunction preventing enforcement of the law, a declaration that it is unconstitutional, and costs and attorneys’ fees. Tofurky claimed that it feared prosecution under the statute even though its labels include modifiers like “veggie,” “all vegan,” and “plant based.”
On September 30, 2019, the court ruled on plaintiffs’ motion for preliminary injunction – and in doing so had to determine, among other things, whether plaintiffs were likely to succeed on the merits and whether denying the injunction would cause them irreparable harm.
The court found:
Plaintiffs state that they are likely to succeed on their First Amendment claim because they wish to engage in truthful, non-misleading speech that is prohibited by the statute. This however is precisely the reason the Court finds that plaintiffs are not likely to succeed – because the statute does not prohibit their speech.
Mem. Opinion at 12.
In making its determination, the court recognized that two days after the law took effect, Missouri’s Department of Agriculture issued guidance that indicated what companies had to do to avoid the product being “misleading”– essentially, including a prominent statement on the label (immediately before or after the product name) qualifying the product as “plant based” “veggie” “lab grown” or lab created” or “made from plants.” Examples of these modifiers, however, do not appear in the text of the statute, which forbids “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Mo. Rev. Stat. §265.494 (7). The State of Missouri, in opposing plaintiffs’ preliminary injunction motion, argued that the statute does not oppose plant-based manufacturers using the term “meat,” but rather has the “common sense understanding” that prohibits the “misrepresentation” of a plant-based product as meat. Using “veggie” or “plant-based” modifiers, it argued, prevents such a misunderstanding.
The court found no credible risk of prosecution to Tofurky because its labels – some of which Tofurky pictured in its Compliant –already include such qualifiers. “Thus, plaintiffs have not shown that they are at risk of either prosecution for violating the statute or that there is any need to change their labels or advocacy efforts.” Mem. Opinion at 14. The court also found that an injunction would “invade [Missouri’s] sovereign authority to enact and enforce its own laws.” Id. at 15.
Perhaps Tofurky and The Good Food Institute filed this lawsuit simply to get a judicial determination that Tofurky’s labels already complied with Missouri’s amended law. What remains unclear is whether other manufacturers that The Good Food Institute advises still lack certainty about what type of label could result in criminal prosecution in light of this opinion. Tofurky and The Good Food Institute have appealed the denial of the preliminary injunction to the United States Court of Appeals for the Eighth Circuit. Their appellate brief is due on November 25, 2019.
The Good Food Institute’s website, which advertises the lawsuits it is involved with on its “Media Statements” page, has not posted an update about the latest development in this litigation.