We have blogged about Missouri’s meatless meat statute, most recently on June 4, 2020.  The statute purports to prohibit producers of plant- or lab-based “meat” from describing their products as such – e.g., bacon, burgers, or hot dogs.  Shortly after the statute took effect, the Missouri Department of Agriculture issued an interpretive bulletin asserting that the statute did not bar the use of these words, so long as there was clear disclosure about the true origin of the product.  This interpretation, of course, nullified the obvious purpose of the statute – to protect growers of conventional meat from competition.

The District Court accepted the Department’s gloss on the statute and, as a result, denied plaintiffs’ request for a preliminary injunction.  This set up a bizarre pas de deux on appeal, when plaintiffs insisted the statute violated the first amendment because it prohibited them from truthful advertising and the State insisted that it was constitutional because it didn’t prohibit such advertising.

Last month, the Eighth Circuit affirmed the ruling.  It held that, given the Department’s interpretive bulletin, plaintiffs misrepresented nothing so long as they clearly disclosed the origin of their products.  And plaintiffs have every incentive to do so because their target market is people who do not want to consume conventional meat products.  Thus, the Court concluded, there is “considerable doubt” whether the statute could or would apply to their products.

Judge Colloton dissented on the grounds that the statute did not apply to plaintiffs.  He read the statute as limited to persons or entities that supply a “carcass or food plan,” the latter being the sale of meat in conjunction with something else.  Because plaintiffs sell only plant-based food, they are not selling a carcass or a food plan.

As a practical matter, plaintiffs now have a District Court opinion that the statute does not apply to their products and an affirmance by the Eighth Circuit that doubts the contrary proposition could be true.  Moreover, this case was certified as a defendant class action, the defendants being all the prosecuting attorneys in Missouri.  Having secured a defense judgment on the explicit premise that the statute does not apply to a properly labeled plant-based product, even a rogue prosecutor could hardly argue otherwise.