On April 14, 2020, we blogged about Tofurky’s appeal concerning Missouri’s meatless meat statute, which purports to prohibit advertising plant- or lab-based products as meat.  The State persuaded the District Court that an advisory memo by the State Department of Agriculture limited the statute to actual misrepresentations and full disclosure of the origin of the product would avoid sanctions.

Tofurky has filed its reply brief.  The statute itself prohibits “misrepresenting a product as meat that is not derived from” traditional sources of meat or poultry.  The most likely reading of that statute is that plant- and lab-grown “meat” cannot be labeled as such, and the statute does not include the limitation issued by the Department.

The State’s argument to the contrary has set up a bizarre pas de deux, in which the State insists that the statute is constitutional because it does not prohibit calling a meatless product meat and Tofurky insists that it does.  Although the reply brief could be better organized, its principal arguments are:

  • One could reasonably interpret the statute consistent with Tofurky’s reading, meaning that it unconstitutionally chills free speech.
  • The previous version of the statute already prohibited misleading or deceptive practices so the State’s interpretation makes the amendment meaningless surplusage.
  • The State of Arkansas passed a virtually identical statute and the State argued that it did prohibit labeling plant- or lab-based “meat” as such.
  • The Department’s limiting construction does not bind the 115 prosecuting attorneys in Missouri, so again the statute chills free speech.

One obviously sympathizes with producers of traditional meat products who would like to avoid competition from fast-growing plant- and lab-based products.  Certainly, the State has an interest in preventing deceptive advertising.  If the labeling or advertising clearly designate the true origin of the product, however, there is nothing deceptive about it and the additional choice clearly benefits consumers.

As a practical matter, however, we do not believe that Tofurky has any reasonable fear of prosecution.  This case was certified as a defendant class action comprising all prosecuting attorneys in Missouri.  A judgment holding that the statute does not prohibit truthful advertising likely would be res judicata for all Missouri prosecutors, should one attempt to enforce the statute as written.

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Photo of Mark Arnold Mark Arnold

A litigator for 40 years, Mark is a seasoned debater who is energized by outsmarting his opposition. His practice focuses on antitrust, securities pension and welfare, toxic tort and product liability matters. He also handles appeals of major cases, interpreting complex federal statutes…

A litigator for 40 years, Mark is a seasoned debater who is energized by outsmarting his opposition. His practice focuses on antitrust, securities pension and welfare, toxic tort and product liability matters. He also handles appeals of major cases, interpreting complex federal statutes such as the Employee Retirement Income Security Act (ERISA) and the Racketeer Influenced and Corrupt Organizations Act (RICO).