We have blogged on several occasions, most recently on February 4, about the so-called “meatless meat” statutes – laws in which states try to protect their agricultural sectors by banning the use of words like “meat” or “chicken” or “burgers” to describe plant-based or lab-grown substitutes.  Three states – Missouri, Mississippi and Arkansas – have passed such statutes and a number of other states are considering doing so.  All of the existing statutes have met with First Amendment challenges.

Last summer, Upton’s Naturals and a trade association sued to enjoin the Mississippi statute.  Late last year, Mississippi amended its regulations enforcing the statute to provide that using the forbidden words is permissible so long as the manufacturer clearly discloses the non-animal origin of its product.

Last December, the District Court in Arkansas entered a preliminary injunction against the Arkansas meatless meat statute.  The Court held that, taken as a whole, the labels on the product were not inherently misleading because they clearly disclosed the vegetable origin of the product.

The Court acknowledged that the State had a legitimate interest in protecting consumers from misleading advertising and labels.  Because the labels were not misleading, however, the statute did not advance those interests.  And there were clearly less restrictive ways of making sure that consumers were not misled.  So, the Court held, the statute was likely unconstitutional.

The Arkansas Court relied on an Eleventh Circuit opinion involving the sale of skim milk.  The Ocheesee Creamery separates milk into cream and skim milk.  The separation process removes most of the fat-soluble Vitamin A from the skim milk.  The State of Florida refused to allow the Creamery to sell its skim milk as such without adding Vitamin A.  The State did offer to allow the Creamery to sell its milk, but only if it called it imitation milk.

The Eleventh Circuit held the statute unconstitutional.  There was no question that the product was skim milk – i.e., milk from which the fat had been removed.  And the State could not make that label misleading merely by defining skim milk as milk to which Vitamin A had been added.

The Eleventh Circuit assumed that the State’s ban on the sale of skim milk without added Vitamin A served the legitimate purpose of protecting consumers from misleading labels.  But the ban was far more restrictive than necessary to serve that interest.  A proper label would merely disclose that the Creamery’s skim milk did not contain Vitamin A.