By: Abigail Gampher
While the agricultural industry wanes,[1]the meat substitute industry steadily increases in profitability.[2] In 2018, fifty-five of the top one hundred restaurant chains served at least one entirely plant-based entrée.[3] As meat substitutes become more popular, many states are passing legislation to insulate their agricultural industries from the development of cell-cultured and plant-based meat alternatives.[4] For example, Washington has proposed expansive legislation which explicitly prohibits: (1) the sale of any cell-cultured meat products; and (2) the use of public and state funds to research the development of cell-cultured meat products.[5] Since this legislation targets both the sale and the development of cell-cultured meats, it would effectively disrupt innovation in a developing market.
However, states are not just attempting to combat cell-cultured meat; twenty-four states have proposed legislation that would prohibit a manufacturer from labeling a product as meat when it is not derived from an animal carcass.[6] Further, three states have successfully enacted legislation defining meat and constraining plant-based meat products that are already on the market.[7] First, Missouri passed legislation in 2018 which narrowly limited the use of the term “meat” on labeling to include only those products derived from “harvested production livestock or poultry.”[8] In response to this law, The Good Food Institute and Turtle Islands Foods filed suit in Federal Court claiming that the law did not protect the consumer from misrepresentation, but rather that Missouri legislators designed the law to prevent competition in the agricultural industry.[9] Second, an Arkansas law limits labeling for beef, pork, rice, and any product using language that “is the same or similar to a term that has been used or defined historically in reference to a specific agricultural product.”[10] In response to the Arkansas statute, Turtle Island Foods again filed suit in Federal Court claiming that the labeling of products as “plant-based” or “veggie” meat products sufficiently indicated to the consumer that the product is not derived from an animal carcass.[11] Third, Mississippi passed a statute banning the labeling of plant-based products with terms conventionally used for meat products, such as “veggie burgers.”[12] In response to the Mississippi statute, Upton’s Natural filed suit alleging that the culmination of the label would not mislead a reasonable consumer and claiming that prohibition of these terms would actually increase confusion.[13]
Parallel to the growing popularity of meat substitutes and ethically sourced meat, the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”) passed two key provisions in 2019 which sought to clarify each agency’s role regulating meat, plant-based meat substitutes, and cell-cultured meat.[14] First, on March 7, 2019, the USDA and FDA established joint oversight over cell-cultured meat.[15] Second, on July 31, 2019, the FDA asserted its sole control over plant-based meat alternatives and announced that it would amend color additive regulations to include safe use of soy leghemoglobin, an additive used in the Impossible Burger to provide an effect similar to blood.[16] Cumulatively, each of these provisions attempts to clarify, for both the consumer and industry, how the government intends to regulate plant-based meat alternatives and cell-cultured meat.
Notably absent from modern FDA and USDA regulations is a comprehensive definition of meat that accounts for industry innovation.[17] However, agricultural markets are quickly attempting to define meat in their jurisdictions and protect their industries from competing products.[18] Thus, without the FDA and USDA providing further insight into the definitional boundaries of plant-based and cell-cultured meat products, such industries will struggle to anticipate the scope of government intervention, and states will continue to pass jurisdiction-specific labeling requirements that are overly burdensome on industry, consumers, and potentially the courts.[19] However, if the FDA and USDA were to clearly define meat, cell-cultured meat, and plant-based meat alternatives and their respective labeling requirements in accordance with modern technology and innovation, manufacturers could label their products without jurisdictional limitations.[20]
[1]See U.S. Dep’t of Agric.,2017 Census of Agriculture Data Now Available(April 11, 2019), https://www.usda.gov/media/press-releases/2019/04/11/2017-census-agriculture-data-now-available (stating that the number of farms decreased by 3% and the number of land used for farming decreased 1.6% from 2012-2017). But see Jonah Engel Bromwich & Sanam Yar, What’s Meat Got to Do With It?, New York Times(July 25, 2019), https://www.nytimes.com/2019/07/25/style/plant-based-meat-law.html (stating that in 2018, the USDA estimated that Americans would eat a recording setting amount of meat).
[2]Nathaniel Popper, You Call That Meat? Not So Fast, Cattle Ranchers Say, New York Times(Feb. 9, 2019), https://www.nytimes.com/2019/02/09/technology/meat-veggie-burgers-lab-produced.html?module=inline (elaborating that in 2018, plant-based meat substitutes sales increased 22%).
[3]See The Good Food Institute,The Good Food Restaurant Scorecard,http://goodfoodscorecard.org/scorecard/ (last visited Oct. 27, 2019).
[4]See, e.g.,Ark. Code Ann. § 2-1-305(10) (2019); Miss. Code Ann. § 75-35-15(4) (2019); Mo. Rev. Stat.§ 265.494(7) (2018).
[5]H.B. 1519, 66th Leg., Reg. Sess. (Wash. 2019).
[6]Bromwich & Yar, supra note 1.
[7]Bromwich & Yar, supra note 1.
[8]Mo. Rev. Stat.§ 265.494(7) (2018); Memorandum from Chris Chinn, Dir., Dep’t of Agric., to Meat Inspection Program (Aug. 30, 2018), https://agriculture.mo.gov/animals/pdf/missouri-meat-advertising-guidance.pdf.
[9]Complaint at 5, Turtle Island Foods v. Richardson, No. 18-cv-4173 (W. D. Mo. Aug. 27, 2018).
[10]Ark. Code Ann. § 2-1-305(10) (2019).
[11]Complaint at 4, Turtle Island Foods v. Soman, No. 4:19-cv-514-KGB (W. D. Ark July 22, 2019).
[12]Miss. Code Ann. § 75-35-15(4) (2019).
[13]Complaint at 5, Upton’s Naturals Co. v. Bryant, No. 3:19-cv-462-HTW-LRA (S. D. Miss. July 1, 2019).
[14]See Food & Drug Admin., Formal Agreement Between FDA and USDA Regarding Oversight of Human Food Produced Using Animal Cell Technology Derived from Cell Lines of USDA-amendable Species(Mar. 7, 2019), https://www.fda.gov/food/domestic-interagency-agreements-food/formal-agreement-between-fda-and-usda-regarding-oversight-human-food-produced-using-animal-cell;Food & Drug Admin., FDA Authorizes Soy Leghemoglobin as Color Additive(July 31, 2019), https://www.fda.gov/food/cfsan-constituent-updates/fda-authorizes-soy-leghemoglobin-color-additive.
[15]Food & Drug Admin., Formal Agreement Between FDA and USDA Regarding Oversight of Human Food Produced Using Animal Cell Technology Derived from Cell Lines of USDA-amendable Species(Mar. 7, 2019), https://www.fda.gov/food/domestic-interagency-agreements-food/formal-agreement-between-fda-and-usda-regarding-oversight-human-food-produced-using-animal-cell.
[16]Food & Drug Admin., FDA Authorizes Soy Leghemoglobin as Color Additive, supra note 13.
[17]SeeU.S. Dep’t of Agric., Meat and Poultry Labeling Terms, https://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-education/get-answers/food-safety-fact-sheets/food-labeling/meat-and-poultry-labeling-terms/meat-and-poultry-labeling-terms (last visited Oct. 27, 2019) (stating the last amendment to “meat” definition occurred in December of 1994).
[18]See generally Bromwich & Yar, supranote 1.
[19]Bromwich & Yar, supra note 1; Popper, supra note 2.
[20]See U.S. Dep’t of Agric.,A Guide to Federal Food Labeling Requirements for Meat, Poultry, and Egg Products(2007); Food & Drug Admin., Guidance for Industry: Food Labeling Guide(2013).
