• Florida Governor Ron DeSantis expressed his support of two bills in the Florida Legislature that would ban the cultivation and sale of lab-grown (cultivated) meat products. He said in a public statement that the bills will “protect our meat . . . We are going to have meat in Florida. We are not going to do that fake meat.”
  • House Bill 435 and Senate Bill 586  would prohibit the manufacture and distribution of cultivated meat in the state and establish criminal penalties for doing so. The bills define “cultivated meat” as “any meat or food product produced from cultured animal cells.” Violating the ban results in a second-degree misdemeanor, and a restaurant, store, or other business could have its license suspended for selling cultivated meat products. In addition, food establishments that distribute or sell cultivated meat would be subject to fines and revocation or suspension of the establishment’s permit. Products in violation of the ban would be subject to an immediate stop-sale order.
  • Both bills were filed in November 2023. The House bill was found favorable by the Agriculture, Conservation & Resiliency Subcommittee and is now in the Agriculture & Natural Resource Appropriations Subcommittee. The Senate bill has been introduced in the Agriculture, Commerce and Tourism, and Fiscal Policy committees.
  • With these bills, Florida joins several other states, including Arizona and Texas, in moving toward banning lab-grown (cultivated) meat products. Keller and Heckman will continue to monitor and report on legislation related to cultivated meat.
  • Arizona state representatives have introduced two bills relating to the sale of cell-cultured meat in the state. HB2121 would prohibit the sale or production of cell-cultured animal products, and HB2244 would deem cell-cultured products labeled with traditional terms as misbranded.
  • Rep. David Marshall and four co-sponsors introduced HB2121, titled “Cell-cultured animal product; prohibition.” This bill would impose civil penalties on any person who offers to sell, sells, or produces a cell-cultured animal product for human or animal consumption. In addition, it would create a cause of action for any person or organization “whose business is adversely affected by a violation” of the prohibition. Legislative findings in the bill focus on Arizona’s cattle ranching history and include:
    • The regulation of cell-cultured animal products is a matter of statewide concern necessary to protect public health.
    • This state’s cattle ranching industry is integral to this state’s history, culture, values and economy.
    • Cattle is one of the five foundational pillars that have driven this state’s economy since territorial days.
    • The production and sale of lab-grown, cell-cultured animal product threatens to harm this state’s trust land beneficiaries and the highest and best use of state trust land, which includes the lease of state lands to ranchers for livestock grazing to fund public schools and other public institutions.
    • This act is necessary to protect this state’s sovereign interests, history, economy and food heritage.
  • Rep. Huang Nguyen and eight co-sponsors introduced HB2244. Rather than outright banning cell-cultured animal products, this bill would prohibit the use of terms that are “the same or deceptively similar” to terms historically used on meat and poultry products or otherwise representing cell-cultured or synthetically derived products as a meat or poultry product. The bill is intended to prevent cell-cultured or synthetic animal products from being labeled in a way that “misrepresents or misbrands” the products.
  • While FSIS and FDA have agreed to jointly regulate cell-cultured animal products in the United States, Italy has become the first country to ban cell-cultivated meat.
  • Keller and Heckman will continue to monitor laws relating to cell-cultured animal products.
  • On May 15, 2024, Iowa Governor Kim Reynolds signed the Iowa Meat Integrity Bill (SF 2391) to require specific labels for cell-cultivated, plant-based, and insect-based meat and egg alternatives, as well as prevent products deemed misbranded under the law from being sold to supplemental nutrition programs and schools. This follows bans on cell-cultivated meat in Alabama and Florida and moves by other states and Congress to restrict lab-grown meat sales, which we have previously blogged about.
  • Under the Iowa bill, a “manufactured-protein food product” will be deemed misbranded if the label does not contain a “conspicuous and prominent qualifying term in close proximity to an identifying meat term.” A “qualifying term” is defined as “a word, compound word, or phrase that would clearly disclose to a reasonable purchaser of meat products from a food processing plant that a food product is not a meat product” and includes words such as cell-cultivated, cell-cultured, fake, grown in a lab, imitation, insect, insect-based, insect-protein, lab-created, lab-grown, meat free, meatless, plant, plant-based, vegan, vegetable, vegetarian, or veggie.
  • The bill will require regulatory authorities to inspect food processing plants and grocery stores for compliance and allow them to issue a stop order or embargo order for violations.
  • The bill was led by Iowa Senator Dawn Driscoll and Representative Heather Hora, who said that “[l]ab-grown products are not the same as the high-quality meat raised by Iowa farm families.” According to the governor, the bill “prohibits companies from exploiting the trust consumers have with our livestock producers and misleading the consumers into buying products they don’t want.” While some legislators warned that the law could lead to national brands being unavailable to Iowa consumers, proponents argued that most major brands’ packaging is already within the bounds of the new law.
  • The bill goes into effect July 1, 2024.
  • Last week Florida Governor Ron DeSantis signed SB 1084 into law, making it “unlawful for any person to manufacture for sale, sell, hold, or offer for sale, or distribute cultivated meat in this state [Florida].” “Cultivated meat” is defined as “any meat or food product produced from cultured animal cells.” We note that this ban does not extend to plant-based meat imitation products.
  • Knowing violation of the law is a second-degree misdemeanor and the law provides for other punishments for businesses, including license suspension. The governor’s webpage indicates that the law represents Florida “fighting back against the global elite’s plan to force the world to eat meat grown in a petri dish or bugs to achieve their authoritarian goal.” The governor’s webpage links to another webpage by the World Economic Forum which touts the potential benefits of insect protein, but the law doesn’t ban insect protein, so it’s not clear why insect protein is mentioned.
  • The law is the first of its sort, but Alabama, Arizona, and Tennessee have considered similar laws. Like California’s recent food additive ban (AB-418), the law raises interesting questions about the authority of states to pass such bans, including questions  related to preemption and the (dormant) commerce clause.
  • On January 30, 2024, the Fair and Accurate Ingredient Representation on Labels Act (“FAIR Act“) was introduced in the House and Senate. The FAIR Act calls for new labeling requirements for cell-cultured meat and plant-based meat alternative (PBMA) products, including use of terms like “imitation” and “cell-cultured” on labels.
  • The measure addresses PBMAs in the following ways:
    • Defines “imitation meat/poultry” as any food that “uses a market name, descriptors, or iconography for, or is otherwise represented as meat or poultry; is manufactured to appear as a meat or poultry; or approximates the aesthetic qualities (primarily texture, flavor, and appearance) or chemical characteristics of specific types of meat or poultry – but does not contain any meat or poultry.”
    • Requires that products be designated as either “imitation,” or some other descriptive term, such as “black bean burger” or “meatless chicken tenders.”
    • Requires disclaimers to be included on label indicating that the product does not contain meat or poultry.
    • Expands the authority of the U.S. Department of Agriculture (USDA) over meat and poultry to include PBMAs.
  • The measure addresses cell-cultured products in the following ways:
    • Defines “cell-cultured products” as “any product capable of being used as a human food that “is made wholly or in part from any cell culture or the DNA of an amenable species or live bird” and that “is grown or cultivated outside of the live animal from which the cell culture or DNA was acquired.”
    • Provides USDA with clear authority over labeling and directs the agency to require the words “cell-cultured” or “lab-grown,” in type of uniform size and prominence, to be included immediately adjacent to the name of the food on its label.
    • Codifies the current “shared regulation of lab-grown meat and poultry” between the U.S. Food and Drug Administration (FDA) and USDA, though USDA will retain authority over labeling.
  • The bill has received support from agriculture, poultry, and livestock trade groups, though the Plant-Based Foods Association (PBFA) has voiced its opposition, arguing the Act will unfairly target the growing plant-based food industry. Keller and Heckman will track and report on any developments regarding this Act.
  • Officials are urging a federal court to dismiss Tofurky’s challenge of Texas’s new food labeling law, arguing that the plant-based meat maker has only made “hypothetical” allegations and lacks standing.
  • Texas Senate Bill 664 asserts that analogues of meat, poultry, seafood and eggs will be deemed misbranded unless the product label “bears in prominent type equal to or greater in size than the surrounding type and in close proximity to the name of the product one of the following: ‘analogue’; ‘meatless’; ‘plant-based’; ‘made from plants’; or a similar qualifying term or disclaimer intended to clearly communicate to a consumer the contents of the product.”  For cultivated meat products, it imposes an identical labeling requirement with one of the following terms: “cell-cultured”; “lab-grown”; or something similar.
  • Tofurky claims that, “The law institutes an unreasonably burdensome and protectionist trade barrier that contravenes and is preempted by federal law and imposes vague standards on Tofurky and other plant-based meat producers who use words associated with meat products to describe products that are clearly marketed and packaged as 100% plant-based/vegan.”
  • In its motion to dismiss, Texas counters that the legal action is at best premature and that Tofurky lacks standing as to the law’s provisions related to cell-cultured, since the company is solely a plant-based organization.  “It cannot be overstated that Plaintiffs have not clearly and properly alleged what, if any, provisions of the Amendment they cannot meet,” according to Texas.
  • Keller and Heckman LLP will continue to monitor and relay any developments in the labeling and litigation space.
  •  Thirty-six leaders in the cellular agriculture industry in the Asian region signed a memorandum of understanding (MOU) agreeing to the use of the English language term “cultivated” to describe animal products grown from animal cells. Many other terms including “cultured,” lab-grown,” and “cell-based” have also been used to describe such products. The MOU was announced at Singapore’s International Agri-Food Week (SIAW) at the end of last month.
  • The MOU does not have the force of law and could be impacted by future national laws and regulations but does reflect agreement from regional industry leaders that the term “cultivated” should be used because it is a scientifically accurate term that distinguishes from traditional animal products and it elicits the most positive responses from consumers. The MOU indicates that more research is needed to determine how to translate the term into various Asian languages.
  • It is unclear whether this agreement will have any impact in the U.S., but it is noteworthy that some signatories, including Cargill, have an international presence. There are no commercially available “cultivated” animal-based products in the US, but in 2019 FDA and USDA signed a MOU regarding their respective jurisdiction over cultivated meat and poultry products (the MOU did not use the term “cultivated”). Per the agreement, FDA will regulate the early stages of development while USDA will regulate post-harvesting steps, including labeling. FDA has exclusive jurisdiction over cultivated seafood products, although the agencies have indicated that they will work jointly to ensure consistent labeling. In that regard, in 2021 USDA issued an advanced notice of proposed rulemaking (ANPR) on labeling of cultivated meat and poultry products (the ANPR used the term “cultured”), but no regulatory action appears to be forthcoming. Similarly, in 2021 FDA issued a request for information (RFI) regarding cultivated seafood (the RFI also used the term “cultured”), but the agency has also not yet taken any regulatory action.
  • We also note that several states have tried to enact bans on the use of animal-based terms (e.g., meat) on products that are not derived from animals (cultivated meat products and plant-based meat products), although courts have found such bans to be unconstitutional. See e.g., Enforcement of Arkansas Law Enjoined. We will continue to monitor and repot on any developments in the commercialization and regulation of cultivated animal products.
  • 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.
  • Last week, we blogged about Nebraska Legislative Bill 14 (LB 14), which would have limited the use of the term “meat” to the edible portions of livestock or poultry carcasses.  It would have specifically excluded insect- or plant-based products as well as lab-grown products from the definition.  Under the proposed bill, engaging in any misleading or deceptive practices with regard to the marketing of foods as meat, would have been a Class I misdemeanor.  This psoposed bill has been withdrawn with Nebraska Legislative Bill 594 (LB 594) introduced to replace it.
  • As some additional background, the use of the term “meat” as part of the name for cell-cultured, or lab-grown, products has been a matter of fierce debate within industry, even though no such products are available for market.  Missouri already has a law on the books and there are several other states considering similar acts.  This battle may be considered alongside the dispute over the use of “rice” to describe vegetables (e.g. “cauliflower rice” as a name for finely cut cauliflower) and the use of “milk” for plant-based beverages (e.g. “rice milk”),  each of which pit an entrenched food with brand equity and a set of consumer expectations against new, or revised, versions of the food that have some similarity to the original.  For more, see our posts here, here, and here.
  • LB 594 maintains the definition of meat from LB 14, but under LB 594 it would be an unfair trade practice to market as meat any product that falls outside of the definition of meat.  Per the article in Food Safety News, citing a statement given to Meatingplace, attaching the restriction to the unfair trade practices act provides for a built-in enforcement mechanism.
  • We will continue to monitor legislative and regulatory activity in this area.
  • As previously reported on this blog, the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA) announced that they will hold a joint meeting on October 23-24, 2018, to discuss the use of cell culture technology to develop products derived from livestock and poultry. The meeting will focus on potential hazards, regulatory issues, and labeling issues. There has been an ongoing debate as to whether USDA or FDA should have regulatory jurisdiction over cultured meat, but the upcoming joint meeting may be a sign that the two agencies are looking to partner with one another.
  • As a reminder to our readers, FDA was quick to assert its interest in jurisdiction over cell-cultured meat, holding a public meeting on the issue in July without any USDA officials participating as panelists. In a continuing sign of the FDA’s interest in cell culture technology, Susan Mayne, director of FDA’s Center for Food Safety, recently noted at the Wall Street Journal Global Food Forum, “we’ve been looking at biotech products for the last 20 years. Cell-cultured meat is really in the same framework.”
  • However, in a recent interview with the Wall Street Journal, USDA Secretary Sonny Perdue called for both agencies to play a role, stating that FDA “has equity in the lab, and if it is commercialized as a product, the USDA has the responsibility to inspect that. It needs to be clearly delineated who does what.” Speaking with reporters at a North American Meat Institute event, Secretary Perdue embraced the technology, “we don’t want this new technology to feel like they’ve got to go offshore or outside the United States to get a fair regulatory protocol.” He reiterated this stance in an interview with Organic Insider, “we’ve got new technology with stem cell protein growth [referring to cell-cultured meat technology]… shouldn’t we in the United States be about how we can grow and feed people more efficiently and more effectively … these techniques need to be embraced, not kept out.”
  • It remains to be seen how such a partnership between the two agencies will play out, but the upcoming USDA-FDA joint meeting on cell culture technology will provide an opportunity for startups and traditional meat producers to provide both agencies with their input to shape the future regulatory oversight of cell-cultured meat.