Animal Law Review

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Plant-based and cell-based meat companies are vying to take over the trillion-dollar meat industry—and, in recent years, they have gained momentum. Responding to consumer demand and widespread fear about global climate change, investors like Bill Gates, Richard Branson, and even Tyson Foods began investing in alternative meat. Beyond Meat became a publicly traded company and partnered with Dunkin’ Donuts, while Impossible Foods partnered with Burger King, bringing plant-based meat products into the mainstream. But many states with strong ties to animal agriculture have sought to impede the growth of the alternative-meat market. In August 2018, Missouri became the first state to restrict how alternative companies use the word ‘meat’ and related terms on their labels. Eleven more states have passed similar ‘Tag-Gag’ statutes. This Article reviews three primary constitutional challenges plant-based companies have leveled against such provisions—challenges based on the First Amendment, Due Process, and the Dormant Commerce Clause. After Part II evaluates the merits of these claims, Part III explores how they could advance or inadvertently undermine other animal and civil-rights lawyering strategies. To supplement the standard arguments, Part IV proposes ways for cause-driven plaintiffs like Tofurky—the first company to challenge Tag-Gag laws—to amplify their free speech claims. First, this Part suggests that although the statutes at issue appear to target mere commercial speech, courts have reason to view them as regulations of political speech calling for strict, rather than intermediate, scrutiny. Second, this Part suggests that plaintiffs could challenge Tag-Gag statutes not only under the First Amendment but also under the free speech provisions of state constitutions.

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