May 11, 2021

Volume XI, Number 131

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May 11, 2021

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May 10, 2021

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Eighth Circuit Allows “Fake Meat” Labeling Law

On March 29, 2021, the U.S. Court of Appeals for the Eighth Circuit concluded that that the State of Missouri is not barred from enforcing its 2018 state law that makes it a crime for vegan food producers to imply that their products contain real meat.  However, upon affirming the lower court’s ruling that denied plaintiff Tofurky Company’s (Tofurky) motion for preliminary injunction, the Eight Circuit stated that Tofurky failed to show that the law applies to its products or that Tofurky is at risk of enforcement, as the company already informs consumers that its products are made from plants, rather than from animals.

Missouri’s law prohibits persons from “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  In the lawsuit, plaintiffs alleged that the Missouri law violates their First Amendment rights, as it criminalizes the word “meat” and unfairly restricts how manufacturers can sell meat alternatives.  After filing the complaint, plaintiffs filed a motion for a preliminary injunction arguing that Missouri’s law could result in criminal charges against Tofurky, which sells “veggie burgers” and other similar products, while the case is being heard in court.

The lower court concluded that plaintiffs had not shown a substantial likelihood of success on the merits of their First Amendment claim because the law only prohibits misleading speech, not their commercial speech.  Further, the lower court cited a state guidance document that stated companies are only in violation of the statute if their marketing and labeling do not include “appropriate qualifiers,” such as “plant-based,” “veggie,” “lab-grown,” or “lab-created.”

Although the Eighth Circuit denied the injunction, it allowed the suit to move to trial on the merits.  A number of states, including Mississippi and Arkansas, have enacted laws to prohibit marketing a product as “meat” if it is not derived from livestock or poultry.  We will continue to monitor any developments.

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© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 99
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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