By Mark Arnold, Husch Blackwell

In July 2019, several states “declared war” on advertising plant- or cell-based products as “meat.”  It was suggested that the State of Missouri’s refusal to settle Tofurky’s lawsuit made no sense, because Missouri’s response to Tofurky’s motion for preliminary injunction effectively conceded the relief that Tofurky sought.  Judge Gaitan evidently agrees; he has ordered the parties to participate in mandatory mediation.

Last July, a Mississippi statute took effect banning the use of the words “meat” or “meat product” on any product not derived from an actual animal, not including poultry.  Lobbyists for traditional meat produces were plain- spoken about the objectives of the bill:  protect their clients from competition with plant- or cell-based products.  Under this statute, which authorizes punishment of up to a year in jail, it is illegal to call meatless meat “meat” even if the actual origin of the product is fully disclosed.

A seller of plant-based product and a trade association of such producers have sued the governor and the commissioner of agriculture to enjoin enforcement of the statute.  They argue that the statute infringes on their First Amendment rights and replaces information useful to consumers, such as “veggie burger,” with misleading information.

On September 5, 2019, in an effort to avoid a loss on the merits, Missouri promulgated a proposed rule substantially narrowing the statute.  Provided the labels contain appropriate disclosures about the origin of the product, the proposed rule would permit plant- and cell-based manufacturers to label their products “meat.”  False and misleading advertising would remain illegal.  This rule would avoid the lawsuit but only by gutting the statute of its intended purpose.

Last July, Arkansas also joined the fray, enacting a ban on the use of words such as “meat,” “beef,” “pork” or “sausage” to describe a plant- or cell-based product.  It makes no difference if the labeling plainly discloses the true origin of the product.  Each violation – which would include each individual product – warrants a penalty of $1,000.  As is usually the case with such statutes, proponents have stated that its purpose is to protect producers of conventional meats from competition.

As is also usually the case, this statute has also attracted a lawsuit.  Shortly before it took effect Tofurky filed a complaint seeking to enjoin its enforcement.  Unlike other challenges, Tofurky’s claims against the Arkansas statute are not limited to the First Amendment.  They also include claims that the law is too vague to be enforced, because it bans not only references to “meat” but also “similar” terms to those that have historically referred to agricultural products.  For example, it is not clear whether Tofurky could legally continue to use its brand name, because it is similar to “turkey.”  The lawsuit also claims that the statute violates the commerce clause by attempting to protect local Arkansas producers from competition.

Tofurky has filed a motion for a preliminary injunction based on both the First Amendment and the vagueness argument.  No word yet on whether Arkansas is going to defend the statute or fold its cards.

Source: Husch Blackwell