Turtle Island Foods, SPC v. Richardson

• Citation: 425 F.Supp.3d 1131
• Decision Date: 30 September 2019
• Docket Number: Case No. 2:18-CV-04173
• Parties: TURTLE ISLAND FOODS, SPC, et al., Plaintiffs, v. Mark RICHARDSON, Defendant.
• Court: U.S. District Court — Western District of Missouri

425 F.Supp.3d 1131

TURTLE ISLAND FOODS, SPC, et al., Plaintiffs,

v.Mark RICHARDSON, Defendant.

Case No. 2:18-CV-04173

United States District Court, W.D. Missouri, Central Division.

Signed September 30, 2019

Alene Georgia Anello, Pro Hac Vice, Amanda Howell, Pro Hac Vice, Matthew G. Liebman, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, Gillian R. Wilcox, American Civil Liberties Union of Missouri Foundation, Kansas City, MO, Jessica Almy, Pro Hac Vice, Washington, DC, Jessie Steffan, Omri E. Praiss, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, St. Louis, MO, for Plaintiffs.

Michael G. Berry, Newman, Comley & Ruth, P.C., Jefferson City, MO, for Defendant.

ORDER

Fernando J. Gaitan, Jr., United States District Judge

Currently pending before the Court is plaintiffs' Motion for Preliminary Injunction (Doc. # 23); plaintiffs' Motion to Certify Class (Doc. # 31); Joint Motion to Amend Scheduling Order (Doc. # 35), Motion to Withdraw as Attorney (Doc. # 36) and Joint Motion to Stay Scheduling Order (Doc. # 47).

I. BACKGROUND

On August 28, 2018, Mo.Rev.Stat. § 265.494 went into effect. This statute states in part:

No person advertising, offering for sale or selling all or part of a carcass or food plan shall engage in any misleading or deceptive practices, including, but not limited to, any one or more of the following:

...

(7) Misrepresenting the cut, grade, brand or trade name, or weight or measure of any product, or misrepresenting a product as meat that is not derived from harvested production livestock or poultry.

Id. (emphasis added).

The statute defines "meat" as: "any edible portion of livestock, poultry, or captive cervid carcass or part thereof." Mo.Rev.Stat. § 265.300(7). The term "misrepresent" in the statute is defined as "the use of any untrue, misleading or deceptive oral or written statement, advertisement, label, display, picture, illustration or sample. Mo.Rev.Stat. § 265.490(6). Pursuant to the statute any person who violates any portion of Mo.Rev.Stat. § 265.494 is guilty of a class A misdemeanor. Mo.Rev.Stat. § 265.496. The punishment for a class A misdemeanor is imprisonment for up to one year and a fine up to $1,000.

Plaintiffs, the Good Food Institute "GFI" (a non-profit advocacy organization) and Tofurky (a plant-based meat producer whose products are marketed and sold in stores in Missouri) filed a Complaint against Mark Richardson, in his official capacity as the Cole County Prosecuting Attorney and on behalf of all Missouri Prosecuting Attorneys challenging the constitutionality of the statute referenced above. Plaintiffs allege that the statute violates their First Amendment rights, violates the Dormant Commerce Clause and violates their due process rights. Plaintiffs seek a preliminary and permanent injunction preventing enforcement of the statute, a declaration that the statute is unconstitutional on its face and as applied to plaintiffs and an award of costs and attorneys' fees.

In their Complaint, plaintiffs state that "plant-based meats" are foods that approximate the texture, flavor, and appearance of conventional meats produced from livestock. Plant-based meats are typically made from soy, tempeh, wheat, jackfruit, textured vegetable protein and other vegan ingredients. Plaintiffs use the term "Clean meats" to refer to meat made of muscle tissue cultured in vitro from animal cells. Clean-meat producers add nutrients like salts and sugars to animal cells, which grow into muscle tissue that approximates conventional meat. (Complaint, ¶¶ 14-15).

The labels and marketing materials of Tofurky, as well as the plant-based meat companies that GFI advocates for, all clearly indicate their products are plant based, meatless, vegetarian or vegan. (Complaint, ¶ 34). Tofurky produces, markets and sells the following products which are clearly labeled as plant based, vegan or vegetarian and using descriptive terms including: "slow-roasted chick'n;" "deli slices" in varieties such as "smoked ham" and "bologna" "veggie burgers;" "hot dogs," "sausages," "grounds in varieties including "DIY chorizo," "DIY breakfast sausage," "DIY Italian sausage," "chorizo" and "ground beef style," and "ham roast." Plaintiffs state that the labels for these products include modifiers like "veggie," "all vegan," and "plant based" that clearly indicate that the products do not contain conventional meat from livestock production animals. (Complaint ¶¶ 63-64). Tofurky states that because its labels include terms which are also applied to conventional meat like "kielbasa" "hot dogs" "ham roast" "burgers" and "bologna," it reasonably fears prosecution under the statute. GFI states that its partners also market products as meat analogues and use meat and meat related terminology in the labeling of their products such as "vegan jerky" "meatless vegan jerky" "seitan" "smart bacon: veggie bacon strips" "teriyaki chick'n strips: meat-free" "the ultimate beefless burger" and "beyond meat: beyond beef crumbles and plant-based protein crumbles". GFI states that its partners who use these terms on their labels and marketing materials face a credible fear of prosecution for their speech. (Complaint ¶¶ 70-72). Plaintiffs allege that the statute is designed to and will significantly disadvantage Tofurky and the companies the GFI works with because it will restrict how they can market, advertise and sell their products in the marketplace. Plaintiffs allege that the statute prevents marketing products as meat analogues or using meat terminology in truthful and non-misleading ways (Complaint ¶ 79). Tofurky states that compliance with the statute would have a severe detrimental impact on its nationwide marketing and packaging of its products. (Complaint ¶ 81).

Plaintiffs initially named Mark Richardson as the proposed class representative because at the time he was the Cole County Prosecuting Attorney. However, in January 2019, Richardson left office and the new prosecutor for Cole County is now Locke Thompson. Plaintiffs aver that there are 116 Prosecuting Attorneys in Missouri and that these prosecuting attorneys have the authority to enforce the statutory provisions at issue here and may prosecute any alleged offenders. (Complaint ¶¶ 91-92).

II. STANDARD

Under Fed.R.Civ.P. 23(a), the Court considers the following prerequisites and certifies a class action only if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defense of the class; and (4) the representative parties will fairly and adequately protects the interests of the class.

In determining whether a preliminary injunction should be issued, the Court in Chlorine Institute, Inc. v. Soo Line R.R., 792 F.3d 903 (8th Cir. 2015), stated:

In considering whether to issue a preliminary injunction, the district court must consider four factors: "(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties [ ]; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest." Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). "The burden is on the movant to establish the need for a preliminary injunction...." DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, 881 (8th Cir. 2013) (internal quotation marks omitted).

Id. at 914.

III. DISCUSSION

A. Motion to Certify Defendant Class

In Morris v. Moon Ridge Foods, LLC, No. 18-CV-03219-SRB, 2019 WL 4197605 (W.D.Mo. Sept. 4, 2019), the Court discussed what must be show in order to certify a class action:

Class certification is governed by Rule 23, and a proposed class must satisfy all four prerequisites of Rule 23(a) and at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 32 [133 S.Ct. 1426, 185 L.Ed.2d 515] (2013) ; Blades v. Monsanto Co., 400 F.3d 562, 568-69 (8th Cir. 2005). Rule 23(a) requires the proponent of a class action to show: 1) "the class is so numerous that joinder of all members is impracticable" (numerosity); 2) "there are questions of law or fact common to the class" (commonality); 3) "the claims or defenses of the representative parties are typical of the claims or defenses of the class" (typicality); and 4) "the representative parties will fairly and adequately protect the interests of the absent class members" (adequacy). District courts must engage in a "rigorous analysis" to determine whether "the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 [102 S.Ct. 2364, 72 L.Ed.2d 740] (1982). If the Rule 23(a) prerequisites have been met, a class action may be maintained only if at least one Rule 23(b) provision is satisfied.

1. Numerosity

Plaintiffs state that there are 115 Prosecuting attorneys in Missouri and that this is sufficient to satisfy the numerosity requirement of Fed.R.Civ.P. 23. The State of Missouri does not challenge the numerosity prerequisite, so the Court finds that this requirement is satisfied.

2. Commonality

Plaintiffs state that the sole question in this case is common to the proposed defendant class – whether Mo.Rev.Stat. § 265.494(7)'s requirement prohibiting vegetarian-meat sellers from using "meat" or meat-related terms is constitutional. Plaintiffs state that each Prosecuting Attorney must enforce the provision under the same statutory procedure and thus the question of constitutionality is common to all members of the class. The State argues that the proposed class fails the commonality test because the proposed question which plaintiffs have identified is improper as the statute does not forbid the use of certain words or terminology, rather it forbids misrepresenting a product as meat that is not derived from harvested production livestock or poultry. In Wal-Mart...