(CN) — The maker of vegetarian meat substitute Tofurky battled Missouri at the Eighth Circuit on Thursday afternoon over a state law restricting the use of the word “meat” and similar phrases on its product packaging.
Turtle Island Foods doing business as The Tofurkey Company – represented by attorneys with the ACLU of Missouri, Animal Legal Defense Fund and sustainable-eating group The Good Food Institute – argued a food advertising law that criminalizes misrepresenting non-meat products as meat creates a chilling effect on protected, truthful speech.
ACLU attorney Anthony Rothert argued to a three-judge panel for the reversal of a Missouri federal judge’s September 2019 denial of a preliminary injunction against the law’s enforcement. The rules, Rothert said, were too broad and could lead to prosecution even for products that are clearly marked as vegetarian.
“The state, and the [Missouri] Department of Agriculture agree with us, that [the statute] contains meat and meat-related terms – burgers, sausages – in addition to specifically meat,” he said. “The state argues that the statute does not prohibit using such meaty terms if appropriate qualifiers are used…. That there has to be an appropriate qualifier saying that something is plant-grown. But the statute does not say that, and other sections of the same statute do require such qualifiers.”
Deputy Missouri Attorney General Justin Smith took issue with that idea, arguing that if Tofurky and its peers didn’t intend to misrepresent their products as meats, they should have nothing to worry about.
“We’ve had this statute in place for one or two years now,” Smith said, “and there’s been no evidence in the record of any prosecution, any threat of prosecution or any referrals from the Department of Agriculture.”
That department’s involvement in the issue “muddies the waters,” said U.S. Circuit Judge Steven Colloton, a George W. Bush appointee. It issued a memo shortly after the passage of amendments to the state law detailing what it would and would not be prosecuting under the amended statute.
Putting words like “plant-based” immediately before or after the product name or prominently stating that a product is “made from plants” or some similar disclosure would keep the department out of non-meat producers’ hair, the memo said.
That may not save all of Tofurky or its competitors’ products from scrutiny, attorney Amanda Howell of the Animal Legal Defense Fund said after Thursday’s virtual hearing.
“An example of that would be something that says ‘vegan sausage’ is OK, because the word ‘vegan’ is immediately preceding the word ‘sausage,’” she said in an interview. “I don’t think that all of [Tofurky’s] labels necessarily comply with all of the unnecessarily prescriptive requirements of the Department of Ag memo.”
In between discussions of the Missouri Department of Agriculture’s involvement, attorneys for both sides compared and contrasted the law to a similar Arkansas rule overturned last year.
That law, the state said, outright forbade representing a product as meat, rather than cracking down on misrepresentations as the Missouri statute does. Smith argued that difference narrowed the Missouri law’s scope within the bounds of the First Amendment.
Combined with the state agency’s guidance, he said, Tofurky also had no reason to expect that it would be irreparably harmed by the law.
“You’re right, it could be subject to change,” Smith said when asked by U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, about the possibility of a shift in the department’s standard. “But when you get to the meaning of ‘misrepresent’ in the statute, that can’t change.”
Howell disputed that.
“‘Misrepresent’ is in the eye of 115 beholders, 115 prosecutors,” she said.
Rothert also argued during the hearing that prosecutions weren’t needed to create harm. “It’s not surprising that there have been no prosecutions… but this is a First Amendment case, and what was alleged is a chilling effect,” he said.
Speaking after the hearing, Howell said the state’s arguments didn’t line up with the reasons given for passing the law in the first place. State Senator Sandy Crawford, a Republican who introduced the bill, said publicly at the time that it had been intended to protect cattlemen in the state.
“When the bill was considered, that’s what they were talking about, and it’s only in oral arguments that we hear about preventing consumer confusion,” Howell said.
Rothert expressed a similar sentiment.
“There’s no evidence of consumers not understanding the purposes here. Baby oil’s not from babies, girl scout cookies do not contain girl scouts, and nobody’s being duped by ‘Tofurky, smoked ham style,’” he told the Eighth Circuit panel.
The Missouri Attorney General’s Office did not respond to repeated requests for comment.
Senior U.S. Circuit Judge Michael Melloy, a George W. Bush appointee, joined Colloton and Kelly on the panel. The judges did not indicate when they would rule in the case.
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