The Denver Post discussed the first year of legal marijuana in California.

CBC News reported on ways Toronto businesses are reducing waste.

The North Bay Business Journal discussed the 2019 California farm outlook.

CNBC discussed a start-up’s efforts to reduce food waste by keeping food fresh longer.

The Independent discussed a new California law restricting pet shop sales to rescue animals.

 

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.

The Business Standard reported on a new method to purify water using sunlight.

Reuters reported on a Supreme Court decision on the Endangered Species Act.

The Minneapolis Star Tribune discussed soybean storage issues as a result of Chinese trade disputes.

Nation’s Restaurant News reported on the FDA and CDC update on romaine lettuce contamination.

The Miami Herald discussed the status of the farm bill.

 

We have blogged on several occasions, most recently on June 7, 2018, about the varied fate of so-called “ag-gag” laws. These laws seek to prevent, in one way or another, undercover investigations of the quality of producers’ facilities, usually involving care of animals or poultry.  On September 15, 2017, we blogged about the Tenth Circuit’s partial reversal of an order dismissing a complaint against the Wyoming version of an ag-gag statute.

The statute made it a civil and criminal offense to trespass on private property en route to public property, if the objective was to gather information about producer operations. The issue on remand was whether this statute violated the First Amendment.

On cross-motions for summary judgment, the District Court held that the statute was unconstitutional. It is clear that the First Amendment protects the gathering of information for ultimate use in speech; otherwise, it would be entirely too easy to shut down speech before it ever took place.  The statute was content-based because it only applied to collection of data about land and land use, and not to other purposes.  Thus, it was subject to strict scrutiny.

The statute failed strict scrutiny. The asserted governmental interest was in protecting the property rights of private citizens.  But it made no effort to do so for anyone not collecting data about producer operations.  The Court found this to be especially problematic given that producers deposed in the case had equal or greater problems with trespassing hunters and campers.  Moreover, the statute was not narrowly tailored to that interest.

The Court held that the State could criminalize trespass without any requirement of subsequent engagement with speech. This suggests that the State could accomplish its objective of shutting down speech about producers’ operations merely by strengthening a facially neutral trespass statute.  That in turn raises the prospect of an as-applied challenge to an amended statute.

Farms.com discussed a proposed EPA rule exempting farms from emission reporting.

USAgNet discussed EU restrictions on use of antibiotics on healthy farm animals.

The Conversation reported on current efforts to develop compostable food packaging.

The Environmental Leader reported on the rise of packaging-free grocery stores.

Agweb reported on FDA approval of drug to reduce manure gas emissions.