By Mark Arnold
On September 28, 2018, we blogged about the new
Missouri statute that purports to place substantial restriction on the ability
of producers of lab-grown or plant-based products to market their products as
“meat.” We also blogged about the lawsuit that challenges the constitutionality
of the statute.
Plaintiffs have now filed a motion for preliminary injunction. They argue
that the labels on their products constitute commercial speech, which has had
First Amendment protections since 1976. Until recently, courts applied an
intermediate scrutiny standard of review to commercial speech. As
plaintiffs’ motion for preliminary injunction argues, Sorrell v. IMS
Health Inc., 564 U.S. 552 (2011), suggests that strict scrutiny applies to
commercial as well as most other forms of speech. The motion wisely
argues that the Court need not decide the validity of that suggestion because
the statute cannot satisfy Central Hudson.
The first issue under Central Hudson is whether the
advertising is inherently misleading. If so, it is entitled to no First
Amendment protection and the inquiry is over. The motion argues that
Tofurky’s advertising is not inherently misleading because it plainly discloses
that the product is plant-based or lab-grown.
If the advertising is merely potentially misleading, the Court must proceed
to the next three levels of Central Hudson scrutiny:
whether the government has a substantial interest in regulating or suppressing
speech; whether the regulation directly advances that interest; and whether the
regulation is no more extensive than necessary.
Based on some statements by legislators that the purpose of the statute is
to protect the agricultural industry from competition, the motion argues that
suppression of disfavored speech is not a legitimate state interest. Courts
generally try to resolve constitutional challenges on bases other than stray
comments by legislators. In our view, this argument largely begs the
question. If the advertising really does mislead consumers, it is a
perfectly legitimate state interest to protect both consumers and competitors
from unfair competition.
The motion also argues, however, that the ban on references to meat
provides only the most incremental addition to the State’s legitimate interest
in consumer protection. The reason is that Tofurky and other producers of
meatless meat already provide plenty of disclosures that their product is
either plant-based or lab-grown. For the same reason, the motion argues
that the statute is substantially broader than necessary to protect consumers.
A mandatory disclosure requirement would accomplish the same ends.
Plaintiffs have also filed a motion to certify a defendant class
represented by named defendant Mark Richardson, the Cole County prosecuting
attorney. Given that Mr. Richardson’s response to the complaint was massive
indifference, it is not clear that he would be an adequate class
representative. Moreover, since the State of Missouri has intervened in
the case to defend the statute, it is unclear why class action status is
necessary. A judgment against the State striking down the statute would
almost certainly bind any prosecuting attorney in the State.
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| https://www.foodandaglawinsights.com/2018/12/meatless-meat-update/ |
