The August 27 complaint* - filed a day before a spending bill** including language prohibiting firms from “misrepresenting” as meat any products “not derived from harvested production livestock or poultry” goes into effect – seeks a preliminary injunction preventing enforcement until the lawsuit is resolved.
"We are hopeful that filing the lawsuit will encourage prosecutors to hold off from enforcing this unconstitutional law until we get a decision from the court," the Good Food Institute told FoodNavigator-USA this morning.
Animal Legal Defense Fund staff Attorney Amanda Howell added: “Tofurky and plant-based producers are at risk of irreparable harm absent an injunction—the statute infringes on Plaintiffs’ constitutional right to engage in truthful commercial speech. Absent an injunction, Plaintiffs might have to stop selling their products in Missouri or change their marketing and packaging nationwide thanks to the statute.
"What’s more, if an injunction were granted, defendants (or members of the public) would have no tangible harm at all. Members of the public are not confused by plant-based meats’ truthful and non-misleading packaging and advertising.”
Consumers are not confused
There is “no evidence of consumer confusion about the ingredients or source of plant-based meats,” while the Office of the Missouri Attorney General has “received zero complaints from consumers who accidentally purchased plant-based meats that they believed to be meat from slaughtered animals,” according to the complaint.
“The labels and marketing materials of Tofurky, as well as the plant-based meat companies that GFI advocates for, all clearly indicate the products are plant based, meatless, vegetarian, or vegan and, thus, are entirely truthful and do not violate applicable labeling requirements set forth by the federal Food, Drug and Cosmetic Act.”
Labels for Tofuky products, for example, include modifiers such as ‘veggie,’ ‘all vegan,’ and ‘plant based’ that “clearly indicate that the products do not contain meat from slaughtered animals,” added the plaintiffs, who say fear of competition – not consumer protection – is behind the bill.
The statute 'criminalizes Tofurky’s truthful and non-misleading speech'
The language in the omnibus agriculture bill was originally proposed by the Missouri Cattlemen’s Association, while the lawmakers who introduced it have “extensive ties to the animal agriculture industry,” and have been explicit about the fact that they support it because they want to protect Missouri cattlemen from competition, added the complaint.
“The Statute criminalizes Tofurky’s truthful and non-misleading speech and exposes the company to the substantial risk of prosecution for its speech… The Statute has forced new companies to consider creating one set of labels for Missouri and another set for other states, potentially raising the cost to come to market.”
Violations carry a penalty of incarceration for up to one year as well as a fine of as much as $1,000.
Missouri Cattlemen: The use of traditional nomenclature on alternative products is confusing
However, Mike Deering, EVP at the Missouri Cattlemen's Association, said the "use of traditional nomenclature on alternative products is confusing to consumers and weakens the value of products derived from actual livestock production."
He added:"This isn't a Missouri issue. This is about protecting the integrity of the products that farm and ranch families throughout the country work hard to raise each and every day. I never imagined we would be fighting over what is and isn't meat. It seems silly. However, this is very real and I cannot stress enough the importance of this issue. We are beyond pleased to see this priority legislation cross the finish-line."
“Missouri is putting its thumb on the scale to unfairly benefit the meat industry and silence alternative producers. This law violates various constitutional principles, including free speech – which should be a concern for everyone, regardless of diet.”
Stephen Wells, executive director, Animal Legal Defense Fund
“Americans don’t like censorship, and they don’t like the government picking winners and losers in the marketplace. We’re confident that the Court will overturn this anti-competitive and unconstitutional law.”
Bruce Friedrich, executive director, the Good Food Institute
*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.
**The omnibus bill (SB 627) was sponsored by Senator Brian Munzlinger and carried in the House by Rep. Jay Houghton.