All across the nation, states are busy writing laws banning the sale and or manufacture of cultivated meat produced directly from animal cells grown in bioreactors.
In 2022, the U.S. Food and Drug Administration greenlighted two companies — UPSIDE Foods and GOOD Meat — to sell cultivated chicken. The following year, USDA's Food and Inspection Service issued grants of inspections clearing the way for public sale.
Cattle producers have wasted no time in lobbying the federal government and their state legislatures to put a stop to the fledgling cultivated meat industry, citing concerns regarding potential competition and the possibility the public will not understand the difference between meat grown in a lab and conventional meat.
A number of states already have passed or are considering restrictions:
- In March, Mississippi approved House Bill 1006 making it “unlawful for any person to manufacture, sell, hold for sale, offer for sale or distribute any cultivated food product in this state.” Conviction carries a fine not to exceed $500 and jail time in a county slammer of up to three months.
- Last month, Montana approved House Bill 401 making it “unlawful for a person to manufacture for sale, sell, hold or offer for sale, or distribute cell-cultured edible product in this state.” In signing the bill, Montana Gov. Greg Gianforte all but made the signing an existential issue, saying, “By signing House Bill 401 into law, I am proud to defend our way of life and the hardworking Montana ranchers who produce the best beef in the world.”
- Also in May, Nebraska banned the production, sale, promotion, and distribution of cultivated meat in the state. In signing LB246, Gov. Jim Pillen said, “We need to be willing to protect and preserve our state’s vital ag industry as well as our consumers. These products are grown from harvested cells in bioreactor machines. The health consequences are unknown and so are the long-term effects to consumers.”
- On July 1, a two-year moratorium on cultivated meat will begin in Indiana and Illinois has introduced legislation banning cultivated meat, citing threats to public health and safety. Oklahoma is also considering a ban.
The good news for UPSIDE Foods is that every single one of these state laws banning cultivated meat may be unconstitutional.
Last year, UPSIDE Foods and the Institute for Justice filed a lawsuit against the state of Florida, the first in the nation to ban cultivated meat. UPSIDE Foods claimed Florida Senate Bill 1084 runs foul of the U.S. Constitution's dormant Commerce Clause that prohibits laws favoring in-state businesses over out-of-state competitors.
Florida moved to have the lawsuit tossed out of court. But in late April, U.S. District Court for the Northern District of Florida Chief District Judge Mark E. Walker said UPSIDE Foods has a case:
“The question remains as to whether conventional meat and cultivated meat are actually in the same market or in competition with one another. But on a motion to dismiss, it is sufficient that Plaintiff has alleged that the two are competing products and that barring cultivated meat from coming into Florida benefits Florida’s in-state conventional meat industry.”
State of Florida government officials may now be regretting all the dumb things they have said supporting UPSIDE Foods' constitutional challenge. In signing the legislation, Florida Gov. Ron DeSantis said, “Today, Florida is 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 goals. Our administration will continue to focus on investing in our local farmers and ranchers, and we will save our beef."
Local farmers and ranchers? Our beef?
Florida, ya got a constitutional issue brewing which has direct implications for other states rushing to ban cultivated meat.
If UPSIDE Foods can convince Walker that Florida's motivation for the law was to prevent competition, it's a simple hop, skip and a jump to Florida appealing the case. Should the case reach the U.S. Supreme Court, it is possible it will take on the dormant Commerce Clause issue just as it did in considering National Pork Producers v. Ross in 2023.
In that case, the Supremes left open the possibility for future consideration of the Commerce Clause. I wouldn't be surprised if UPSIDE Foods v. Wilton Simpson becomes the vehicle for ultimately finding it unconstitutional. UPSIDE Foods may win the battle but lose the war.
