On October 15, 2019, we blogged about the District Court’s decision to deny Tofurky a preliminary injunction against Missouri’s meatless meat statute. The statute itself purports to ban as misleading the use of words such as “meat” or “sausage” or “burger” to describe plant- or lab-based food products. It does not contain a safe harbor if the labeling or other advertising clearly discloses the plant- or lab-based origin of the product. Based on representations from the state department of agriculture that it would not refer any case for prosecution if the product had such disclosures, the District Court denied the injunction. Tofurky has appealed.

Tofurky’s principal argument on appeal is that the statute has a chilling effect on Tofurky because its product is arguably subject to the statute, despite not being misleading. The plain terms of the statute do not include the District Court’s safe harbor. The brief argues that state limited its non-enforcement policy to the exact labels before the Court, reserving its rights to prosecute based on other labels or other advertising.

The state did offer to review any additional labels or advertising for compliance with the statute. The brief criticizes that offer as a prohibited prior restraint on speech.

According to Tofurky, the fundamental problem with the statute is its definition of what is misleading. Obviously, the state has an interest in preventing deception of its consumers. The brief argues that the statute defines the use of “meat” and related words as being deceptive, even if other disclosures make it clear that the product is plant- or lab-derived.

Because the District Court’s safe harbor is not part of the statute, Tofurky claims that it has an arguable concern that its conduct is covered by the statute. And that concern, says Tofurky, is sufficient to give it standing to prosecute a First Amendment claim.

The balance of the brief argues that the labels are commercial speech protected by the First Amendment; that the statute is presumptively unconstitutional because it is content-based; and that there is no substantial state interest in preventing that speech.