On September 28, 2018 and December 27, 2018, we blogged about the challenge to Missouri’s meatless meat statute. The statute purports to prohibit designating a product as meat unless it has been obtained from harvested livestock or poultry.  The target of the statute is newly developed technology that can produce from either laboratory or plants a product that looks and tastes very much like meat.  The plaintiffs argue that the statute violates their first amendment rights, because they clearly disclose that the product is either lab-grown or plant-grown.

As we explained on December 27, plaintiffs have moved for a preliminary injunction. The state’s response makes no effort to defend the statute as written.  Instead, it argues that the state Department of Agriculture has interpreted the statute only to prohibit misleading characterizations of a product as meat and that the statute does not prohibit marketing meatless meat as long as its origin is disclosed.

The Department actually issued a statement that it would not exercise its authority under § 265.497, R.S.Mo., to refer producers to the attorney general and the prosecuting attorney in the county where the producer is located. Nothing in the statement binds a prosecutor to refrain from pressing charges under the plain language of the statute.

Under these circumstances, the case is an obvious candidate for a settlement in which the Court enters an injunction incorporating the Department’s statement and enjoining any enforcement effort if the producer plainly discloses the origin of the product. Press reports suggest that the parties are in the process of negotiating exactly that sort of settlement.

In the meantime, five other states have enacted similar legislation and the Montana legislature has passed a bill that the governor is expected to sign. If these statutes merely prohibit marketing of meatless meat without disclosing its origin, they are constitutional and likely will not attract lawsuits.  If they purport to ban the use of the word “meat,” they will be challenged in court and will likely lose.

The issue may soon be moot. The federal Departments of Agriculture and Health and Human Services have agreed on a joint regulatory approach to meatless meat.  Both the Meat Inspection Act and the Poultry and Poultry Products Inspection Act prohibit the states from requiring packaging and warning labels different from or in addition to those prescribed by the Secretary of Agriculture, at least when the Secretary concludes that such differences interfere with commerce.  State efforts to regulate meatless meat may very well be preempted.