Litigation to resume in plant-based ‘meat’ battle in Missouri as settlement talks reach impasse

The Good Food Institute, the Animal Legal Defense Fund, the American Civil Liberties Union of Missouri, and plant-based meat brand Tofurky, sued​​ the state of Missouri last summer to challenge SB 627,​​ which “prohibits misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”​

Labels on Tofurky and other brands ​include modifiers such as ‘all vegan,’ and ‘plant based’ that “clearly indicate that the products do not contain meat from slaughtered animals​,​” say the plaintiffs, who believe fear of competition – not consumer protection – is behind the bill (one of multiple state-level bills restricting 'meaty' language​​), and argue that existing consumer protection laws already prohibit misleading labeling.

ALDF: ‘We have reached an impasse’​

In an email to FoodNavigator-USA sent Wednesday, the Animal Legal Defense Fund said the two parties had been engaged in settlement talks, but had failed to reach an agreement by the deadline set by the court.

“While the Animal Legal Defense Fund and the other plaintiffs for the case tried for the last several months to reach a settlement with the state of Missouri, as of this afternoon, the plaintiffs have notified the court they have reached an impasse and will move forward with litigation.”​

‘The law on the books is patently unconstitutional’​

“We’re disappointed that, despite our best efforts, we have reached an impasse​,” added Stephen Wells, ALDF executive director.

“The law on the books is patently unconstitutional. It represents a protectionist measure designed to protect one industry by infringing on the free speech rights of another. We’re confident that the court will rule in our favor going forward.”​

Attorney: 'No plant- or cell-based producer can determine exactly what conduct would leave them exposed to prosecution'​

Lead attorney for the ALDF Amanda Howell told FoodNavigator-USA that the vague language of the bill meant it was hard to determine if something labeled as a 'plant-based sausage,' for example, would clearly violate the law (eg. does that count as 'misrepresenting a product as meat?).

"One of the major problems with the law is the fact that no plant- or cell-based producer can determine exactly what conduct would leave them exposed to prosecution. So of course any settlement would have to address that. Also, Tofurky and the Animal Legal Defense Fund, ACLU, and GFI are concerned about the broader impacts of this unconstitutional law and want to ensure that *all* plant- and cell-based meat producers can continue to engage in truthful and non-misleading commercial speech."​

Asked about the legal strategy going forward as more state-led bills are introduced, she said: "​We will continue to challenge these unconstitutional laws as long as they are on the books. We're confident that, in Missouri, the court will rule that these types of laws violate free speech, due process, and the free market principles protected by the dormant commerce clause."​

Who was the main target of the Missouri law?

Asked if SB 627 was really designed as a pre-emptive strike against cell-cultured meat (which is not yet on the market) rather than plant-based meat, given that no plant-based brands have yet been accused of breaking the law, Howell said:

"The law chills the free speech of plant-based producers currently selling products in Missouri and stifles innovation from cell-based producers. Because of this, and the current fear of prosecution, we are seeking a preliminary injunction to stay any enforcement of the law until the court rules on the constitutional issues. We look forward to a ruling on that motion."​

Speaking to FoodNavigator-USA after the lawsuit was filed last summer, Tofurky CEO Jaime Athos said: “I don’t think it’s appropriate for the legislature to take up the cause of one particular industry or to choose winners or losers ​​[in a given industry]. Consumers will vote with their taste buds and their pocket books.”​​

Asked about the labeling of Tofurky​​​ products - which don’t refer to ‘meat,’ but use terms such as chick’n, burgers, bacon, ham and sausages – all with modifiers such as ‘vegan,’ ‘vegetarian,’ or ‘plant-based,’ – he said: “For so many of us growing up with an animal-centric diet, meat products serve as a the best reference points for consumers, ​​but it’s never been our intention to deceive consumers. Our value proposition is because​​ we’re plant-based, that’s why consumers are buying our products. ​​

“Why should consumers have to navigate a confusing new nomenclature that we’d all have to invent?”​​

GFI:​ ‘​It’s an overstep of state power to censor labels like this’​

Jessica Almy, director of policy at Washington DC-based nonprofit The Good Food Institute, added that while she was not aware of any enforcement action (yet) vs plant-based brands in Missouri, "The fact that this law is on the books poses a risk to companies doing business there. ​

"It is so broadly written that, as our complaint alleges​​, it "fails to provide persons of ordinary intelligence a reasonable opportunity to understand when or how a product label or other marketing information misrepresents a product as meat and thus authorizes or encourages arbitrary and discriminatory enforcement.​" 

She added: “We argue that this law violates the fundamental right to free speech. It doesn’t matter whether you care about veggie burgers, the question is whether the state should have the power to violate the First Amendment — just because legislators think you ought to eat beef.​

“There is no evidence that consumers are confused by plant-based turkey slices or veggie burger labels. Furthermore, misbranding is already prohibited by federal law. The intent here is to go further: to censor plant-based food labels whose meaning is clear to consumers. ​The government’s role is to ensure that consumers are safe and that they understand what they’re buying. Beyond that, it’s an overstep of state power to censor labels like this.”​

Her comments came as the Plant Based Foods Association (PBFA) and member company Upton’s Naturals filed a lawsuit in Mississippi​​ challenging a similar labeling law [SB 2922]​​​ that could make using ‘meaty’ terms to describe plant-based and cell-cultured meat subject to criminal penalties.

• Further reading: ​​Plant-based and cell-cultured 'meat' labeling under attack in 25 states​​​

*The case is Turtle Island Foods, SPC, d.b.a.The Tofurky Company; and The Good Food Institute v Mark Richardson, in his official capacity as Cole County Prosecuting Attorney and on behalf of all Missouri Prosecuting Attorneys. No. 18-cv-4173. It was filed in the Western District of Missouri on August 27, 2018. It asks the court to recognize that Mo. Rev. Stat. § 265.494(7), as amended by 2018 Senate Bills 627 & 925, is unconstitutional and prohibit the state from enforcing it.