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You Can’t Have Your Meat and Eat It Too: “Big Ag’s” Conflicting Positions About Regulating New Food Technologies

You Can’t Have Your Meat and Eat It Too: “Big Ag’s” Conflicting Positions About Regulating New Food Technologies
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You Can’t Have Your Meat and Eat It Too: “Big Ag’s” Conflicting Positions About Regulating New Food Technologies

New food technologies are poised to transform the trillion-dollar meat industry. Many consumers are already familiar with the concept of plant-based meat; in 2002, Burger King became the first fast-food restaurant to offer veggie burgers across the nation. But new-age, plant-based meat does more than just replace animals with vegetables in burger-like shapes—it replicates the taste, texture, and smell of animal tissue. Almost two decades after releasing its veggie burger, Burger King has begun marketing one such plant-based product: Impossible Foods’ Impossible Burger. Meanwhile, Beyond Meat—a plant-based meat company best known for its “Beyond Burger” and “Beyond Sausage”—has relished one of the “biggest-popping IPOs” since 2000.

In light of these successes, it is remarkable to say that plant-based meat may actually be the less disruptive of the new meat innovations. A second wave of companies has been using stem cells to create meat that is identical, at the cellular level, to animal flesh. This meat has yet to reach the marketplace, but it has already become the subject of heated legal debates. People have called the product by names ranging from “IVF meat” and “lab-grown meat” to “clean meat” and “slaughter-free meat,” depending on their angle. Throughout this article, for ease of discussion, I will refer to it with the neutral term “cell-based meat.”

Two issues quickly rose as the legal “hot topics” concerning cell-based meat: which agency—the Food and Drug Administration (“FDA”) or the Department of Agriculture (“USDA”)—would regulate these products, and how the agency would require companies to label them. “Big Ag” industry organizations, which profit from raising and slaughtering animals, proposed the following: the USDA should regulate cell-based meat, and that agency should restrict cell-based meat companies’ use of words like “meat” on their labels. To give due credit, from the perspective of Big Ag’s economic interests, both positions make a good deal of sense. Legally, however, (removing due credit) the two positions are logically incompatible. The recent outcome of the jurisdictional debates should therefore color the impending labeling decisions.

How Big Ag Made Its Case for USDA Jurisdiction Over Cell-Based Meat: Cell-Based Meat Falls Under the USDA’s Definition of Meat

The jurisdictional debates over cell-based meat took their lead from the 2016 presidential debates: there was infighting and name-calling among other fun activities.

Animal rights groups sought FDA regulation of cell-based meat whereas Big Ag fought adamantly for USDA jurisdiction. In this comment, The North American Meat Institute (“NAMI”)—“the oldest and largest trade association representing U.S. packers and processors of beef, pork, lamb, veal and turkey”—explained that it supports USDA jurisdiction over cell-based meat because the USDA’s regulations are more stringent than the FDA’s. If the FDA were to regulate cell-based meat products, then businesses selling these products would have an easier time bringing them to market and would enjoy a corresponding competitive advantage over facilities that slaughter animals.

As delineated by the Congressional Research Service, the agencies, in addition to competing interest groups, took up their swords. In this press statement, FDA Commissioner Scott Gottlieb asserted that the FDA should have jurisdiction over cell-based meat because the FDA has expertise in regulating new food technologies and food additives. Moreover, according to Gottlieb, the facilities that companies have used to produce cell-based meat more closely resemble FDA-regulated food-manufacturing and biologics facilities than the slaughter facilities that the USDA regulates. Secretary of Agriculture Sonny Perdue, however, responded that the USDA regulates all meat and poultry products and ought therefore to be regulating cell-based meat as well.

Supporting Secretary Perdue’s argument for USDA control, the National Cattlemen’s Beef Association (“National Cattlemen”) invoked the definition of “meat food product” under the Federal Meat Inspection Act (“FMIA”), which includes food “made wholly or in part from any meat or other portion of the carcass of cattle, sheep, swine, or goats.” The National Cattlemen argued that the FMIA’s definition of “meat” includes cell-based meat because the latter derives from stem cells, which are part of a carcass. The NAMI agreed that the definition of meat does not reference “traditional harvesting”—i.e., raising and slaughtering animals—and went so far as to attack a petition by their allies, the U.S. Cattlemen, which had suggested otherwise.

Jurisdictionally speaking, the NAMI and National Cattlemen got their way. In public meetings held October 23 and 24, 2018, the FDA and USDA laid down their swords and agreed that they would both regulate cell-based meat. As detailed in the agencies’ recent MOU, this means cell-based meat companies will have to jump through the USDA’s premarket hurdles—seemingly bad news. The decision, however, carries a thick silver lining.

If Cell-Based Meat Is “Meat” for Jurisdictional Purposes, Then Labeling It “Meat” Is Not a Misrepresentation

Labeling is one of the most important issues facing new food products. Consumers are unlikely to know what “veggie disc” or “petri-dish meat” means, let alone want to take such products for a spin. For years, plant-based dairy was at the forefront of the labeling wars; as discussed in Professor Michael Dorf’s article here, Congress and the FDA have each considered provisions that would have prevented plant-based beverages from using the word “milk” on their labels.

Then came Missouri: home of the first United States Olympic Games, where 81% of all competitors were from the United States, events included “climbing a greased pole,” and the winner of the marathon cheated. Missouri catapulted meat to the forefront of the labeling debates when it revised this statute to state that no person shall “misrepresent[] a product as meat that is not derived from harvested production livestock or poultry” (emphasis added). Nine additional agriculture-oriented states, most recently South Carolina, have since passed analogous provisions.

Missouri’s statute presents a number of constitutional concerns, which Tofurky—a wonderful plant-based company with a funny name—raised in a recent complaint challenging the statute. As far as plant-based companies like Tofurky are concerned, Missouri’s statute is unconstitutionally vague because it does not tell them what actions constitute misrepresentation; it therefore gives prosecutors discretion to target plant-based companies for using words like “meat” or “deli slices” that they have a First Amendment right to use. But, even Tofurky would likely admit that plant-based companies could misrepresent their products to consumers by representing them as animal-derived meat. If Tofurky called its plant-based deli slices “pigeon meat deli slices” or “chicken strips” instead of “vegan deli slices” or “plant-based chick’n strips,” this labeling would constitute misrepresentation under both federal and Missouri’s unrevised misbranding provisions. Plant-based companies can use words like “chicken” to describe what their products look and taste like—which helps consumers know how to use them—but they do not have a First Amendment right to claim their products are chicken. In other words, even though Missouri’s statute is unconstitutional, the law can and does legitimately require plant-based companies to disclose the nature of their products so that consumers understand that they are purchasing something other than animal flesh.

Cell-based meat, however, presents a very different story; cell-based meat companies cannot misrepresent their products as animal-derived meat if their products are animal-derived meat. Even ignoring the issues under the Due Process Clause (vagueness), dormant Commerce Clause (discrimination), and Supremacy Clause (preemption) that poorly worded state statutes like Missouri’s raise, cell-based meat companies have a First Amendment right to say what their products are. The meat lobby cannot have it both ways: it cannot maintain that cell-based meat is “meat” under the FMIA for the purpose of giving the USDA jurisdiction but not for purposes of labeling and marketing.

Misrepresentation Aside, How Should Cell-Based Meat Companies Have to Disclose Their Production Process?

In short: however they like, or not at all.

In a vacuum, to be clear, the answer would be different. First, Supreme Court precedent establishes a preference for “more disclosure, rather than less.” Second, as a normative matter, full disclosure on product labels is preferable to non-disclosure because consumers deserve to make informed decisions. Third, as a practical matter, when cell-based meat first reaches the market, cell-based meat companies will likely benefit from disclosing that their products are not from slaughtered cows, pigs, and chickens; by doing so, they can justify higher price points and appeal to consumers who care about animals, their own health, and the environment. But cell-based meat is entering a marketplace and not a vacuum.

The USDA has maintained that production processes are irrelevant to meat labeling, and they prevailed in this view when it was challenged in court. In ALDF v. Provimi Veal Corp., a federal court in Massachusetts rejected the Animal Legal Defense Fund (“ALDF”)’s argument that Provimi should include on its label or package information about how veal calves are raised; such disclosures would identify cruel practices as well as “potentially harmful effects [from] . . . genetically-altered salmonellae.” Likewise, the USDA has failed to recognize ALDF’s petition requesting “mandatory labeling to disclose routine antibiotic use in animals used to produce meat and poultry products.”

Creating meat from stem cells is simply a new production process—and unlike pumping antibiotics into animals, the introduction of cell-based meat will alleviate animal suffering, environmental damage, and human health concerns. The end product of this process, as the National Cattlemen and the NAMI acknowledged in their bid for USDA jurisdiction, is as much “meat” under the FMIA as slaughtered animals are. Cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or simply “meat”—and nothing in the law tells them otherwise.

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