On September 28, 2018, we blogged about the new Missouri statute that purports to place substantial restriction on the ability of producers of lab-grown or plant-based products to market their products as “meat.” We also blogged about the lawsuit that challenges the constitutionality of the statute.

Plaintiffs have now filed a motion for preliminary injunction. They argue that the labels on their products constitute commercial speech, which has had First Amendment protections since 1976.  Until recently, courts applied an intermediate scrutiny standard of review to commercial speech.  As plaintiffs’ motion for preliminary injunction argues, Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), suggests that strict scrutiny applies to commercial as well as most other forms of speech.  The motion wisely argues that the Court need not decide the validity of that suggestion because the statute cannot satisfy Central Hudson.

The first issue under Central Hudson is whether the advertising is inherently misleading.  If so, it is entitled to no First Amendment protection and the inquiry is over.  The motion argues that Tofurky’s advertising is not inherently misleading because it plainly discloses that the product is plant-based or lab-grown.

If the advertising is merely potentially misleading, the Court must proceed to the next three levels of Central Hudson scrutiny:  whether the government has a substantial interest in regulating or suppressing speech; whether the regulation directly advances that interest; and whether the regulation is no more extensive than necessary.

Based on some statements by legislators that the purpose of the statute is to protect the agricultural industry from competition, the motion argues that suppression of disfavored speech is not a legitimate state interest. Courts generally try to resolve constitutional challenges on bases other than stray comments by legislators.  In our view, this argument largely begs the question.  If the advertising really does mislead consumers, it is a perfectly legitimate state interest to protect both consumers and competitors from unfair competition.

The motion also argues, however, that the ban on references to meat provides only the most incremental addition to the State’s legitimate interest in consumer protection. The reason is that Tofurky and other producers of meatless meat already provide plenty of disclosures that their product is either plant-based or lab-grown.  For the same reason, the motion argues that the statute is substantially broader than necessary to protect consumers.  A mandatory disclosure requirement would accomplish the same ends.

Plaintiffs have also filed a motion to certify a defendant class represented by named defendant Mark Richardson, the Cole County prosecuting attorney. Given that Mr. Richardson’s response to the complaint was massive indifference, it is not clear that he would be an adequate class representative.  Moreover, since the State of Missouri has intervened in the case to defend the statute, it is unclear why class action status is necessary.  A judgment against the State striking down the statute would almost certainly bind any prosecuting attorney in the State.