• During oral arguments on November 4, 2025, Upside Foods Inc. (Upside) urged the US Court of Appeals for the Eleventh Circuit to reverse a lower court’s decision denying a preliminary injunction against Florida’s law banning lab-grown meat, arguing that the state prohibition is federally preempted.
  • As we previously reported, Upside, based in California, originally brought forth this lawsuit in 2024 in the US District Court for the Northern District of Florida, alleging that Florida’s SB 1084 is unconstitutional because it favors in-state businesses over out-of-state competitors.  SB 1084 prohibits the manufacture, distribution, and sale of meat and poultry products grown directly from animal cells.  Shortly after filing its lawsuit, Upside asked the court for a preliminary injunction, but the court denied that request in October 2024.
  • Upside argued to the appeals court that while the lower court said that it was unlikely to prevail on its preemption claims, Upside would continue to suffer harm due to the threat of criminal prosecution.  Upside also argued that the lower court mischaracterized the preemption issue by finding that the Florida ban must conflict with a federal law that requires the use of cultivated poultry cells as an ingredient in its products in order to issue an injunction, rather than merely conflicting with the company’s right to engage in interstate commerce.  Upside’s position is that only the federal government can regulate poultry products under the Poultry Products Inspection Act, and the question of origin of meat and what would be considered a “poultry product” was extensively debated.
  • Keller and Heckman will continue to monitor and relay developments in this case.
  • On October 24, 2025, a bipartisan group of representatives introduced the “Country of Origin Labeling Enforcement Act of 2025,” which would reinstate mandatory country of origin labeling (COOL) requirements for beef (H.R. 5818) by amending the country-of-origin provisions in the Agricultural Marketing Act of 1946 (codified at 7 USC 1638 – 1638d).
  • The only meat products to which the mandatory COOL requirements currently apply are lamb, chicken, and goat, the implementing regulations for which are found at 7 CFR part 65 (a proposed rule to add these requirements for venison has not yet been finalized).
  • Mandatory COOL for beef (and pork) was repealed by the Consolidated Appropriations Act of 2026 (H.R. 2029) following World Trade Organization (WTO) rulings which found that U.S. mandatory COOL requirements for beef and pork violated U.S. international trade obligations. See 81 Fed Reg. 10755 (Mar. 2, 2016) for the rule repealing these requirements. However, the proposed bill expressly states that no ruling by the WTO or other international organization of which the U.S. is a member may be construed to limit its implementation. The bill comes as President Trump has proposed quadrupling the import of low-tariff Argentinian beef in an effort to curb beef prices.
  • The Ninth Circuit has reversed (Law360 subscription required) a district court ruling exempting highly refined foods from the definition of a “bioengineered food.” As we previously blogged, in 2022, the U.S. District Court for the Northern District of California dismissed a challenge by natural and organic grocers and advocacy organizations against USDA’s Agricultural Marketing Service’s (AMS) final regulations implementing mandatory uniform national bioengineered (BE) food disclosure standards for human food.
  • On appeal, the Ninth Circuit agreed with the plaintiffs that AMS’s current rule allowing exemptions if manufacturers conclude the BE ingredients are not “detectable” is not “legally equivalent to saying the food does not  ‘contain’ such material.” Specifically, the court considered what it means to “contain” modified genetic material, determining that a food is considered BE “if it actually has modified genetic material within it.” Thus, the court rejected AMS’s “flawed legal premise that the non-detectability of a substance under the regulation was equivalent to its non-presence.”
  • The court did, however, disagree with the plaintiffs’ contention that AMS lacks any discretionary authority to adopt a detectability exception for highly processed foods made from BE ingredients. Under the statute, the agency is required to determine “the amounts of a bioengineered substance that may be present in food, as appropriate, in order for the food to be a bioengineered food.” Thus, the agency could, for example, adopt a particular limit of detection as fixing the “amount” of a BE substance that may be potentially present, and a showing that the substance cannot be detected within that limit would mean the food does not qualify as BE. According to the court, while that food would otherwise meet the broad statutory definition of BE, “it would not count as a ‘bioengineered’ food under the regulatory standard only because it was excluded under a limit-of-detection-based standard promulgated under the Act.
  • The court remanded the case to the district court with instructions to grant summary judgment to the plaintiffs, remand the regulations to AMS, and determine, after receiving input from the parties, whether any provisions of the regulations should be vacated.
  • The court also affirmed the district court’s decision that AMS was not arbitrary and capricious in requiring the term “bioengineered” in disclosures and reversed the district court’s decision to deny vacatur of disclosure format rules.
  • Keller and Heckman will continue to monitor any developments related to BE foods and labeling.
  • A recent federal court ruling has temporarily halted the Trump administration’s plan to lay off thousands of federal employees during the ongoing government shutdown. U.S. District Judge Susan Illston issued a preliminary injunction in response to lawsuits filed by federal employee unions, which challenged the administration’s use of permanent reductions in force (RIFs) rather than temporary furloughs.
  • Layoffs at the Department of Health and Human Services (HHS) have been part of a broader restructuring initiative announced in March 2025, titled “HHS Announces Transformation to Make America Healthy Again.” The plan aimed to reduce the department’s workforce from 82,000 to 62,000 full-time employees—a loss of 20,000 positions, split evenly between voluntary departures and forced terminations.
  • Attorneys general from nineteen states and the District of Columbia successfully argued that this downsizing violated statutory mandates and constitutional limits on executive power. In July 2025, U.S. District Judge Melissa DuBose issued an injunction against the HHS layoffs, stating that “critical offices were left unable to perform statutory functions.”
  • FDA Commissioner Marty Makary assured staff that the agency was “exempted” from the current shutdown-induced layoffs due to its public safety mission and unique funding structure and FDA has retained approximately 86% of its staff during the shutdown primarily due to carryover user fees. Nonetheless, the agency has paused many non-urgent regulatory activities, including food safety initiatives and oversight of compounded drugs, with estimates that delays in functions could be upwards of 3-6 months. FDA is also not accepting new applications, which will likely delay product reviews and approvals.
  • Keller and Heckman will continue to monitor developments related to federal agency oversight and operations, including those affecting HHS, FDA, and other key regulatory bodies.
  • This week, twenty-five US states and the District of Columbia (DC) filed suit in the US District Court of Massachusetts against the US Department of Agriculture (USDA) and US Office of Management and Budget (OMB), arguing that the agency’s decision to suspend Supplemental Nutrition Assistance Program (SNAP) benefits amid the ongoing government shutdown is an abuse of discretion. 
  • The coalition seeks a declaration that the impending November 1 suspension is “both contrary to law and arbitrary and capricious under the Administrative Procedure Act.”  The complaint states that Congress has appropriated $6 billion for the SNAP contingency fund and that USDA also has access to a Section 32 fund that are available to cover the November benefits.  The complaint goes on to state that, “[s]uspending benefits will ultimately transfer costs to state and local governments and community organizations, as families increasingly rely on emergency services and public safety net programs, such as local food pantries.”
  • SNAP is a mandatory entitlement program that provides roughly 42 million US residents an average of $187/month in food aid.  The program costs roughly $8 billion/month to fund, which is allocated through annual congressional appropriations.  As we previously reported, various groups have already reached out to USDA, urging USDA Secretary Brooke Rollins to use all available resources to avoid disruptions to SNAP.  Currently, the USDA SNAP webpage includes a banner stating that the “well has run dry” and blaming Senate Democrats for USDA’s decision not to send out benefits on November 1.
  • In a memorandum provided to NPR, USDA stated that SNAP contingency funds “are only available to supplement regular monthly benefits when amounts have been appropriated for, but are insufficient to cover, benefits.”  Those contingency funds are intended by law “for use only in such amounts and at such times as may become necessary to carry out program operations.”
  • Plaintiffs seek a temporary restraining order enjoining the suspension of SNAP benefits and have requested an emergency hearing, which is scheduled for October 30, 2025.  Keller and Heckman will report any developments with this lawsuit.
  • We have previously blogged about NYC’s updated Food Standards for foods and beverages which go into effect July 1, 2026. NYC’s Food Standards were first introduced in 2008 and are now mandated to be updated every three years. The Food Standards apply to meals served by agencies such as the Department of Education, Health and Hospitals, Department of Correction, and Human Resources Administration among others. The updated Food Standards would, among other things, change nutritional requirements, ban certain additives, and eliminate processed meats.
  • The National Chicken Council (NCC) sent a letter to NYC mayor Eric Adams earlier this month expressing concerns that the updated Food Standards might eliminate products such as chicken nuggets and patties which it argues provide high quality nutrition in a form which is palatable to children. The letter argues that a “process-first definition of ‘healthy’ overlooks what truly matters: nutrient composition.”
  • The letter concludes by requesting “administrative clarification” confirming that “formed and breaded poultry products meeting New York City’s nutrient and additive standards remain eligible for purchase and service.” The Food Standards define “processed meat” as “meat that has been transformed to enhance flavor or improve preservation” by curing, fermentation, salting, or smoking.

  • The Campbell’s Company has been sued (Law360 subscription required) for allegedly falsely advertising its Cape Cod Kettle Cooked Potato Chips as containing “no artificial colors, flavors, or preservatives,” despite containing citric acid, which is synthetic, according to the complaint.
  • The plaintiff alleges that the label on the Cape Cod chips “puts forth a straightforward, material message: the Products contain only coloring, flavoring and preservative ingredients that are natural and not synthetic.” According to the plaintiff, the claims are made to “capitalize on the growing market for natural products,” for which consumers are willing to pay a premium.
  • The complaint further alleges that natural citric acid is no longer commercially available, and only synthetic citric acid is used in packaged foods. Further, the complaint cites FDA Warning Letters from 2001 that state products could not be labeled as “natural” because they contained citric acid.
  • Finally, the complaint states—without citing to any evidence—that synthetic citric acid consumption has been linked with various adverse health effects.
  • Keller and Heckman will continue to monitor this and other food related litigation.
  • The European Parliament has voted to prohibit the use of meat-related terms on plant-based and cultivated protein products, as part of its first reading adoption of the legislative proposal A10-0161/2025. This proposal amends Regulations (EU) No 1308/2013, (EU) 2021/2115, and (EU) 2021/2116.
  • Under the proposed changes to Annex VII of Regulation 1308/2013, the term “meat” would be defined exclusively as “the edible parts of an animal,” and a list of designations (including “beef,” “chicken,” “ribs,” and “bacon”) would be reserved for products derived solely from animal sources at all stages of marketing. The proposal explicitly states that these terms shall exclude cell-cultured products.
  • Supporters of the measure argue that using meat-related descriptors for non-animal products can mislead consumers and undermine the cultural and economic value of traditional farming. Opponents counter that consumers are not confused by current labeling practices and that familiar terms help consumers make informed choices. Critics also warn that the ban could stifle innovation and contradict EU goals related to sustainability and food system modernization.
  • Similar pushback against plant-based and cellular agriculture has been developing in the United States. In early 2025, the U.S. Food and Drug Administration (FDA) issued draft guidance recommending that plant-based products include clear statements of identity specifying the plant source (e.g., “soy-based chicken”) to avoid misleading consumers. As we have previously blogged, several states—including Florida, Texas, and Nebraska—have enacted bans on the sale of “lab-grown” meat, citing concerns over food safety, transparency, and the protection of traditional agriculture.
  • The legislative proposal in the EU must still undergo further review by the European Commission and the governments of the EU’s 27 member states before it can become law.
  • Keller and Heckman will continue to monitor developments related to the labeling and regulation of plant-based and alternative proteins.
  • Pennsylvania, New Jersey, Maryland, New York, and Texas have recently issued updates regarding Supplemental Nutrition Assistance Program (SNAP) benefits, warning that there may be suspension of food stamps coming in November.  Pennsylvania’s Department of Human Services issued a notice stating that, “November 2025 SNAP benefits cannot be paid… [and] Starting October 16, SNAP benefits will not be paid until the federal government shutdown ends and funds are released to [the state].”
  • These announcements come after the U.S. Department of Agriculture (USDA), which oversees the SNAP program, issued a letter to state agencies stating that, “if the current lapse in appropriations continues, there will be insufficient funds to pay full November SNAP benefits for approximately 42 million individuals across the Nation.”  The US government has been shut down now for three weeks. 
  • In response, the United Conference of Mayors (USCM) issued its own letter to USDA, calling on USDA Secretary Brooke Rollins to use all available resources to avoid disruptions to SNAP, including the SNAP contingency fund and any additional administrative resources.  Additionally, in a joint letter to USDA, 46 US senators urged Secretary Rollins to “release the billions of dollars at its disposal to ensure [SNAP] benefits continue in November.”
  • A class action lawsuit filed earlier this year against Mitra-9 Brands, LLC, alleged that the company’s Kratom-containing seltzers, powders, and shots were falsely and misleadingly advertised, primarily because they failed to disclose the allegedly addictive properties of Kratom. Plaintiff alleges that Kratom has addictive properties similar to opioids and that he suffered from withdrawal symptoms after discontinuing use of Defendant’s products.
  • Defendant argues in a motion to dismiss (Laws360 subscription required) filed this week that no express representation relating to addiction was made, that Plaintiff has failed to allege that the product as formulated is addictive, and that Plaintiff had not alleged anything suggesting that Defendant had a duty to disclose Kratom’s addictive properties.  
  • We note that FDA takes the position that conventional foods and dietary supplements containing kratom are adulterated and has initiated enforcement actions against Kratom-containing products.