By: Chris Isaacs
On September 30th, 2019, Judge Fernando J. Gaitan of the United States District Court for the Western District of Missouri denied the plaintiffs’ motion for a preliminary injunction against the State of Missouri’s enforcement of their “Fake Meat” Law in the case Turtle Island Foods v. Richardson.[i] The plaintiffs— comprised of the Good Food Institute, Animal Legal Defense Fund, Tofurky, and the American Civil Liberties Union of Missouri— then appealed to the Eighth Circuit.[ii] In the year prior, the Missouri Legislature amended the statue regarding prohibited practices in meat advertising to include “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”[iii] This amendment impacts all the advertising of all plant-based and lab-grown meat products, like the Impossible Burger, in the state of Missouri.
The defenders of the nation’s first “Fake Meat” law argue that plant-based meat alternatives should be labeled correctly with qualifiers such as “plant-based” or “lab-grown” not to mislead and confuse consumers.[iv] In contrast, the plaintiffs argue that the “Fake Meat” law is unconstitutional.[v] First, the plaintiffs claim the law violates their First Amendment rights.[vi] Second, the plaintiffs argue that the law denies plant-based or lab-grown meat honest competition in the Missouri marketplace.[vii] Third, the law violates the Dormant Commerce Clause by discriminating against out-of-state companies to protect in-state meat producers.[viii] Finally, the law’s vague language makes it difficult for companies to know what is and is not legal, therefore infringing on the Due Process Clause.[ix] Additionally, the Good Food Institute points out that the Missouri Consumer Protection Agency has no evidence that consumers are confused by labels of plant-based products.[x]
Judge Gaitan’s September 30th order on the preliminary injunction focused only on the plaintiff’s First Amendment claim because the plaintiffs asserted neither the dormant commerce nor the due process claims.[xi] According to the Court, the Constitution accords a lesser protection to commercial speech; protection of commercial speech, therefore, turns on the nature of both the expression and of the governmental interests served by its regulation.[xii] The defendant argued that labels like those that the plaintiff Tofurky submitted to the court mislead no one because the labels described plant-based meat as plant-based meat.[xiii] In response, the plaintiffs argued their First Amendment claim would succeed because they wished to engage in truthful advertising.[xiv] The Court concluded that the plaintiffs were unlikely to succeed because the statute only prohibits misleading speech; the labels submitted describe the product as “plant-based.”[xv]
While the statue seems reasonable regarding plant-based meat alternatives, the inclusion of lab-grown meat does not. Lab-grown meat, also called clean-meat, is produced by first taking a muscle sample from an animal, then collecting tissue cells, and multiplying them dramatically, to allow the cells to differentiate into primitive fibers that then bulk up to form muscle tissue.[xvi] The inclusion lab-grown meat—which is essentially the same product farmers produce through different means—in the amendment gives credence to the claim that the purpose of the law is to inhibit competition, not to protect consumers.
In the background of this case are broader concerns about food security in the twenty-first century. According to projections by the United Nations, the global population will reach 9.8 billion in 2050.[xvii] The uncertain effects of climate change will have on global agriculture along with increased meat consumption in developing countries only exasperate these concerns about feeding an additional two billion people. For example, the average Chinese person went from consuming almost nine pounds of meat a year to almost 137 between 1961 and 2013.[xviii] Companies that produce plant-based or lab-grown meats are quick to point out the benefits their products would have in reducing the carbon impact of animal agriculture—producing 14.5 percent of man-made greenhouse gas—while also providing products that satisfy the changing food preferences of the developing world.[xix]
With these broader concerns on how to feed billions sustainably in mind, the case going before the Eighth Circuit is of keen interest because Missouri’s law, while the first, was not the last. The states of Arkansas, Mississippi, Montana, South Dakota, Louisiana, and Wyoming have all adopted similar laws.[xx] This past summer, the same plaintiffs have filed suit against Arkansas and Mississippi’s “fake meat” statutes.[xxi] In a few years, there may be a Circuit split regarding what may and may not be called “meat” for advertising. Perhaps by 2050, law students will have to study not just how to define chicken, but all meats.[xxii]
[i] Turtle Island Foods v. Richardson, No. 2:18-CV-04173, 2019 U.S. Dist. LEXIS 224840 (W.D. Mo. Sep. 30, 2019).
[ii] Judge Declines to Block Fake-Meat Law; Appeal is Filed, AP News (October 4, 2019) https://apnews.com/659387a3fa074f8ea8e0b3e20f54a9d9 [https://perma.cc/MYJ7-BMHS].
[iii] Mo. Rev. Stat. § 265.494(7) (LEXIS through 2019 Session).
[iv] Missouri Law Says Fake Meat Should be Labeled. How is that a Free Speech Issue?, The Kansas City Star (July 29,2019, 5:00 AM) https://www.kansascity.com/opinion/editorials/article232993932.html.
[v] Turtle Island Foods, 2019 U.S. Dist. LEXIS 224840, at *14; See also Matt Ball, GFI Goes to Court for First Amendment, Good Food Institute (August 27, 2018) https://www.gfi.org/gfi-goes-to-court-for-first-amendment [https://perma.cc/72JZ-9B9Y].
[vi] Turtle Island Foods, 2019 U.S. Dist. LEXIS 224840, at *14
[vii] Ball, supra note 5.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Turtle Island Foods, 2019 U.S. Dist. LEXIS 224840, at *18.
[xii] Id. at *16.
[xiii] Id. at *17.
[xiv] Id.
[xv] Id. at *18.
[xvi] G. Owen Schaefer, Lab-Grown Meet: Beef for Dinner—Without Killing, Scientific American (September 14, 2018) https://www.scientificamerican.com/article/lab-grown-meat/ [https://perma.cc/R3KZ-C2D5].
[xvii] World Population Projected to Reach 9.8 Billion in 2050, and 11.2 Billion in 2100, United Nations Department of Economic and Social Affairs (June 12, 2017) https://www.un.org/development/desa/en/news/population/world-population-prospects-2017.html [https://perma.cc/GE4F-APMZ].
[xviii] The Global Meat-Eating is on the Rise, Bringing Surprising Benefits, The Economist (May 4, 2019) https://www.economist.com/international/2019/05/04/global-meat-eating-is-on-the-rise-bringing-surprising-benefits [https://perma.cc/J53R-TP4N].
[xix] See Deena Shanker, Meat-Free Burgers Turns Climate Concerns Into a Sales Pitch, Bloomberg Green (November 6, 2019, 10:11 AM) https://www.bloomberg.com/news/articles/2019-11-06/meat-free-burgers-turn-climate-concerns-into-a-sales-pitch [https://perma.cc/CCM7-JN22].
[xx] Supra note ii.
[xxi] Hannah Grabenstein, Tofurky: Arkansas Meat-Labeling Law Unconstitutional, AP News (July 22, 2019) https://apnews.com/616dc5746166408993a7bcc8aa21e3ec [https://perma.cc/8RVP-YG73]; Emily Wagster Pettus, Defenders of Vegan Bacon Sue Mississippi Over Labeling Law, AP News (July 2, 2019) https://apnews.com/227209bb25814fa9938d37d37bebff13 [https://perma.cc/B7CH-YTC2].
[xxii] See Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960)