The US Court of Appeals for the Eighth Circuit ruled Monday that Missouri is not barred from enforcing a state law that criminalizes misleading advertisements of vegan food products as containing meat.
Missouri enacted a statute in 2018 that makes “misrepresenting a product as meat that is not derived from harvested production livestock or poultry” a class A misdemeanor, which can include up to one year imprisonment and a $1,000 fine. The statute defined meat as “any edible portion of livestock, poultry, or captive cervid carcass or part thereof,” and “misrepresent” as using “any untrue, misleading or deceptive oral or written statement, advertisement, label, display, picture, illustration or sample.”
The Tofurky Company and Good Food Institute filed suit, challenging the constitutionality of the statute and moving for a preliminary injunction. The companies alleged that the statute violated their First Amendment and due process rights, as well as the Dormant Commerce Clause. Tofurky believed that their marketing and labeling could be seen as “misleading” under the statute due to the statute’s definition of “misrepresent.”
In 2019, a judge for the US District Court for the Western District of Missouri denied the company’s motion for preliminary injunction.
On appeal, the court determined that the lower court did not use the wrong legal standard when finding that the plaintiffs were unlikely to prevail on their claim merits because their intended speech was not likely to be seen as “misrepresenting a product as meat” and did not fall within the scope of the statute. Additionally, Tofurky submitted several labels that it believed could be considered “misleading,” but alleged that its products were labeled to “clearly indicate that the products do not contain meat from slaughtered animals” and are “clearly labeled as plant based, vegan, or vegetarian.” The plaintiffs failed to show irreparable harm.
Because of this, the appeals court denied the motion for a preliminary injunction but allowed the suit to proceed to trial on the merits.
In 2019, Tofurky and the American Civil Liberties Union also challenged a new Arkansas law prohibiting the labeling of plant-based meat alternatives as “meat” or related terms like “beef,” “pork,” “roast,” “sausage” and “burger.”