We last blogged about Tofurky’s challenge to Missouri’s meatless meat statute on September 16, 2019.  Settlement negotiations had broken down and the parties asked the District Court to address plaintiffs’ motion for preliminary injunction.  On September 30, 2019, the Court issued an order certifying a defendant class consisting of the prosecuting attorneys in each county in Missouri.  To our considerable surprise however, the Court denied the motion for preliminary injunction.

The statute prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Two days after its effective date, the Department of Agriculture issued a statement that it would not refer cases to the prosecuting attorneys if the label on the package prominently disclosed that it was lab-grown or plant-based.  Because Tofurky’s labels made such disclosure, the Court held that it was in no danger of prosecution, and thus unlikely to succeed on the merits.

The plain text of the statute does not contain that limitation.  As explained in previous blogs, the supporters of the statute clearly wanted to derail competition from meatless meat vendors.  And the Department of Agriculture made no pretense that its interpretation of the statute was binding on the prosecutors.

That said, we think that Tofurky now faces no real threat of prosecution.  Normally, estoppel cannot bind a state.  Having so prominently urged that Tofurky’s labels do not violate the statute, and having secured an order denying a preliminary injunction on that basis, it is likely that judicial estoppel would prevent a prosecutor – a member of a certified defendant class – from attempting to prosecute Tofurky.

Tofurky has filed a notice of appeal and its brief will be due November 25.