Tofurky Maker Loses Bid to Block Missouri Law on Food Labels

A federal appeals court sided against a producer of vegan meat alternatives that is challenging Missouri’s rules for labeling meat substitutes.

A tofurky dinner. (Photo by Etafly from Wikipedia Commons via Courthouse News)

(CN) — Missouri is not barred from enforcing a new state law that makes it a crime for vegan food producers to imply that their products contain real meat, the Eighth Circuit ruled Monday.

The St. Louis-based federal appeals court affirmed a 2019 ruling by U.S. District Judge Fernando Gaitan Jr. in Kansas City denying a motion for preliminary injunction to plaintiffs Turtle Island Foods and The Good Food Institute.

The company and nonprofit sued the state, naming all Missouri prosecuting attorneys as a class of defendants, to prevent enforcement of the statute. Turtle Island Foods sells tofurkey, a vegan turkey substitute, under the brand name Tofurky. The Good Food Institute is an organization advocating on behalf of vegan food producers.

They argued the law violates their First Amendments rights because their fear of criminal prosecution under the statute caused them to self-censor their product labels and marketing materials.

Monday’s Eighth Circuit decision, which denies an injunction but allows the suit to move to trial on the merits, was written by Senior U.S. Circuit Judge Michael Melloy, a George W. Bush appointee, and joined by U.S. Circuit Judge Jane Kelly, a Barack Obama appointee.

U.S. Circuit Judge Steven Colloton, a George W. Bush appointee, dissented. Colloton agreed on affirming the denial of a preliminary injunction, but he said the case should have been remanded with directions to dismiss for lack of standing.

Missouri’s 2018 statute makes it a crime to misrepresent a product as “meat that is not derived from harvested production livestock or poultry,” and a violation is a Class A misdemeanor punishable with a fine of up to $1,000 and up to a year in prison.

It is not entirely clear, however, that the plaintiffs’ products would be subject to prosecution by Missouri officials.

“Two days after the statute took effect, the Missouri Department of Agriculture issued somewhat unclear guidance on the new statute,” Melloy wrote. “The department explained that, in its view, the law did not prohibit, and the department would not refer for prosecution, products in packaging fulfilling two conditions: (1) prominent statements on the front of the package implying the product is ‘plant-based,’ ‘veggie,’ ‘lab-grown,’ ‘lab-created,’ or employing a similar qualifier; and (2) a prominent statement anywhere on the package that the product is ‘made from plants,’ ‘grown in a lab,’ or a comparable disclosure.”

The plaintiffs nonetheless sought the injunction and appealed the trial court’s denial, arguing their marketing and labeling practices are effective only because they make comparisons to animal meat products by using labels such as “slow-roasted chick’n,” “DIY chorizo style sausage,” “original sausage kielbasa,” “vegetarian ham roast,” and “the ultimate beefless burger.”

In Monday’s ruling, the Eighth Circuit majority said it was not necessarily commenting on the merits of the suit in holding that the district court acted within its discretion in denying the injunction.

A more fully developed factual record “may eventually include more of plaintiffs’ marketing materials and labels and may be materially different from that initially before the district court,” Melloy wrote. “Therefore, we emphasize that our analysis here may provide little guidance as to the appropriate disposition on the merits.”

Missouri Attorney General Eric Schmitt, whose office is defending the state in the case, issued a statement Monday saying the statute protects Missouri farmers and ranchers as well as consumers.

“Ensuring that the food that Missourians buy is marketed correctly is of vital importance to both the consumers and the farmers and ranchers that produce that food,” Schmitt said. “We will continue to defend the state against any further appeals or challenges in this case.”

The attorney general’s statement included a comment from a cattlemen’s group praising the decision.

“A bipartisan majority in the [Missouri] General Assembly made clear their intent to ensure marketing with integrity,” said Mike Deering, executive vice president of the Missouri Cattlemen’s Association. “Attorney General Schmitt and his team aggressively defended that intent and farm and ranch families are grateful.”

Tony Rothert, legal director of the ACLU of Missouri said in a statement that the Eighth Circuit dodged the constitutional issue.

“The court of appeals avoiding deciding the constitutionality of Missouri’s law by accepting the state’s surprising argument that — despite legislators’ express intention — the law does nothing to criminalize the speech of those who forthrightly use meat terminology to describe their plant-based and clean meats,” Rothert said. “While we remain concerned about the chilling effect this law will have, we are pleased that the state has conceded that the legislature failed in its effort to hobble the marketing and selling of alternative meats and that the only court to have considered the constitutionality of a similar law entered an injunction preventing it from being enforced.”

A spokesperson for the Animal Legal Defense Fund said the group is optimistic the plaintiffs will prevail in court.

“It is gratifying that the Eighth Circuit has joined the state attorney general in agreeing this law does not apply to Tofurky or potentially any plant-based producers who inform consumers their products are made from plants rather than from slaughtered animals,” says Animal Legal Defense Fund Managing Attorney Cristina Stella. “We look forward to the district court making a determination as to the law’s constitutionality, and we remain confident that either this law doesn’t apply to any plant-based producers or it is an unconstitutional restriction on truthful commercial speech.”

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