Impossible Whopper

A look at truth in labeling laws

By Leisa Boley Hellwarth

Missouri was the first state to pass a truth in labeling law. And Missouri was the first state to have the constitutionality of the law challenged.

            On Aug. 28, 2018, Missouri Rev. Code Sec. 265.494(7) became law. This Statute prohibits the misrepresentation of a product as meat if the product does not come from harvested production livestock or poultry. Producers that violate the law could face up to one year in prison as well as a fine of $1,000, as a violation is deemed a class A misdemeanor.

            To date, the following states have enacted similar laws: Nebraska, Wyoming, Virginia, Montana, South Dakota; Alabama; Georgia; South Carolina; Maine; Arkansas; Mississippi; Louisiana and Oklahoma. The laws seek to prohibit companies selling alternative protein sources, such as plant-based or cell-cultured products, from advertising and marketing them as meat.

            The day before the Statute took effect, Plaintiffs brought a civil rights action in the U.S. District Court, W.D. Missouri, Central Division, against all 116 Prosecuting Attorneys in the state who would enforce the law. Plaintiffs allege the Statute violates the Plaintiff’s First Amendment rights and due process rights and violates the Dormant Commerce Clause. Plaintiffs sought a preliminary and Permanent injunction to prevent enforcement of the Statute, a declaration that the Statute is unconstitutional on its face and as applied to Plaintiffs.

            Plaintiffs are Turtle Island Foods, SPC, doing business as The Tofurky Company, a vegan food brand whose products are marketed and sold in Missouri and The Good Food Institute, Inc., a food advocacy organization that partners with vegan food producers whose products are marketed and sold in Missouri. Although Plaintiffs use meat-related terminology, they use labels and marketing that clearly indicate their products are made of plants, meatless, vegetarian or vegan. 

            Two days after the Missouri law took effect, the Missouri Department of Agriculture issued guidance on the new Statute. The Department explained that, in its view, the law did not prohibit, and the Department would not refer for prosecution, products in packaging fulfilling two conditions: (1) prominent statements on the front of the package implying the product is plant based, veggie, lab-grown, lab-created or employing a similar qualifier; and (2) a prominent statement anywhere on the package that the product is made from plants, grown in a lab or a comparable disclosure. In the Department’s view, products containing these or similar disclosures do not misrepresent themselves and meat and therefore do not violate Section 265.474(7).

            Without holding a hearing, the district court denied the motion for a preliminary injunction. The court concluded Plaintiffs had not shown a substantial likelihood of success on the merits of their First Amendment claim because the Statute does not prohibit their commercial speech. Although Plaintiff’s request for a preliminary injunction was denied, the district court’s analytical path rendered its decision a seemingly positive outcome for Plaintiffs — that is, the district court found preliminarily that the Statute did not apply to Plaintiffs’ speech. Plaintiffs appealed to the U.S. Court of Appeals for the Eighth Circuit nonetheless and argued the district court erred in its interpretation of the Statute. Plaintiffs contended the Statute is a content-based restriction on their commercial speech and asked that the appellate court remain with instructions to enter a preliminary injunction.

            The Eighth Circuit agreed with the district court and ruled that the district court had not abused its discretion in denying the injunction request. In support of the decision, the court relied on statements made by Tofurky that “allege they are not in the business of misrepresenting their products as meat. In fact, Tofurky alleges its products are labeled in such a way as to ‘clearly indicate that the products do not contain meat from slaughtered animals’ and are other wise ‘clearly labeled as plant based, vegan, or vegetarian.’” Relying on the limited advertising material before the court, it could not find even a potential violation of Missouri’s law.

            The case has now gone back to the district court for further proceedings. Missouri’s law is in effect and can be enforced.

            This case illustrates that the First Amendment guarantees freedoms concerning religion, expression, assembly and the right to petition. Freedom of speech and expression, however, may not be recognized as being absolute. Common limitations or boundaries to freedom of speech include libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets and food labeling.

Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072. 

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One comment

  1. I wonder what will happen next in this matter

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