Recent technological developments have made possible meatless meat – lab grown or plant-based products that look, cook and taste like traditional beef, pork or poultry. Proponents of the new technology argue that meatless meat is much healthier than traditional meat and imposes far fewer environmental consequences.

Producers of traditional meat have responded to this competitive threat with legislation.  The last legislative session in Missouri produced § 265.494(7), R.S.Mo., which makes it a criminal offense to represent as meat any product that is “not derived from harvested production livestock or poultry.” Violation of the statute is a class A misdemeanor punishable by up to one year in prison and/or a $1,000 fine.  This is the first such statute in the nation, although likely not the last.

The Missouri Department of Agriculture has provided guidelines for acceptable advertising of meatless meat.  The Department will not refer for criminal prosecution any product bearing a prominent disclaimer such as “veggie,” “plant-based” or “lab grown.”  That construction is substantially narrower than the plain terms of the statute, which appears to ban any reference to meat and it is not binding on Missouri prosecutors.

Turtle Island Foods, a plant-based meat producer and the Good Food Institute, a non-profit group promoting meatless meat, have now sued to enjoin enforcement of the statute.  The defendant is Mark Richardson, the prosecuting attorney in Cole County, as the representative of a class consisting of all Missouri prosecuting attorneys.

The suit alleges three legal grounds for the injunction.  First, it claims that the statute violates the First Amendment by prohibiting meatless meat producers from providing truthful, beneficial information to consumers.  For example, the lawsuit alleges that consumers would benefit from a description of the product as burgers or hot dogs, because it enables meaningful comparison-shopping.  So long as there is full disclosure that the meatless meat is plant-based or lab-grown, consumers will not be misled.

Second, the suit argues that the statute violates the Commerce Clause.  The suit claims that the purpose of the statute is to protect local agricultural producers from out-of-state competition.  It also claims that the burden on interstate commerce substantially outweighs any benefits.  For example, Turtle Island claims that it must either forego sales in Missouri or redesign its packaging for all surrounding states to conform to Missouri’s requirements.

Third, the lawsuit asserts that the statute violates due process because it does not provide sufficient guidance to determine whether a given product label violates the statute.

It is not clear how strong the plaintiff’s case is.  When oleomargarine was first invented in the late 19th century, dairy interests persuaded several states to prohibit its sale altogether and the last of those statutes was not repealed until the mid-1960’s.  A number of other states prohibited advertising of margarine that made any reference to butter.  As late as 1956, the FTC was able to enjoin a manufacturer from advertisements that made several references to butter, even though the ads expressly stated that the product was margarine that did contain small amounts of butter.

Those cases long predated the recognition in 1980 that commercial speech did have First Amendment protections. Central Hudson holds that such speech is protected is it is (1) truthful and not misleading; and (2) a ban on it would not directly advance a significant government interest or the government has more narrowly-tailored ways to advance that interest.  Restrictions on comparative advertising have not fared nearly as well under that standard.

We suspect that the outcome may largely depend on whether the Court accepts the narrowing construction afforded by the Department of Agriculture.  The Turtle Island advertisements set forth in the complaint plainly disclose that the product is plant-based, and thus would not entail any threat of liability under that construction.

The case is assigned to Senior U.S. District Judge Fernando Gaitan.