Florida faces challenge to lab-grown meat ban at 11th Circuit

JACKSONVILLE, Fla. (CN) — A lab-grown meat company asked the 11th Circuit Court of Appeals on Tuesday to allow a challenge to Florida’s ban on such products to proceed.

Upside Foods, a California-based company specializing in cultivated chicken products, sued the Florida Department of Agriculture and Consumer Services last year after the state legislature passed SB 1084, which prohibits the sale, manufacturing and distribution of lab-grown meat products. Upside Foods planned to premiere its cell-cultured chicken in the state at Miami’s popular Art Basel event, but the company backed out after the ban, which carries criminal penalties.

Upside Foods, one of only a handful of cultivated meat purveyors with approvals from the Food and Drug Administration and U.S. Department of Agriculture, claims the U.S. Constitution’s Commerce Clause restricts the state from imposing limits on interstate trade. Upside Foods argues only the federal government can regulate poultry products under the Poultry Products Inspection Act.

U.S. District Judge Mark Walker of the Northern District of Florida initially allowed the lawsuit to move forward but later dismissed most claims by Upside Foods. The Barack Obama appointee noted that any violation of the Poultry Products Inspection Act would have to be brought by the federal government.

In oral arguments Tuesday, U.S. District Judge Paul Huck, sitting in from the Southern District of Florida, doubled down on the lower court’s decision.

“You don’t have the right to bring this because the government has the exclusive right to bring cases with regard to the violations of the act or to enforce the act,” Huck told Paul Sherman, an attorney with the Institute for Justice representing Upside Foods.

“Your honors, this is a straightforward case of federal preemption,” Sherman responded. “We are seeking to enforce our rights to be subject to the federal regulatory scheme exclusively. That’s textbook preemption of the type that this court hears all the time.”

Florida became the first state to outlaw lab-grown meat, also known as cell-cultured meat, though other Republican-led states such as Texas and Alabama have passed similar bans over the last year. Florida Governor Ron DeSantis heralded the new law as “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.” Florida Commissioner of Agriculture Wilton Simpson said the law would protect farmers and consumers.

Proponents of cell-cultured meat point to sustainability, a lack of environmental impact and a more humane way of meat consumption. However, some studies show that lab-grown meat could be more detrimental to the environment than the traditional model.

A 2023 study from professors at the University of California-Davis found the environmental impact of lab-grown meat could be “orders of magnitude” higher than retail beef.

The question of the origin of meat weighed heavily on the three-judge appellate panel considering the provisions of federal poultry law.

“Once we get across this threshold, if this court concludes that these are poultry products—,” Sherman said before U.S. Circuit Judge Andrew Brasher interrupted.

“Can you address that, given that there was never a bird involved?” Brasher, a Donald Trump appointee, said.

“There was a bird, your honor,” Sherman answered. “So the definition of poultry product is broad. In this case, Upside extracted cells from a poultry carcass, then replicated its cells.”

“You seem to suggest if there’s somewhere in the chain that was chicken in the resulting food product, but isn’t the chicken have to be the poultry product?” Brasher countered. “The PPIA says it has to be made from, not made of. In the same way bourbon whiskey is made from corn, but no one would say that bourbon whiskey is made of corn. It contains corn.”

Sherman pushed back.

“I don’t think any ordinary speaker of English would say that bottle contains corn,” he said. “They would say it contains a product that was made from corn. The chicken cells that are Upsides’ product were made from chicken cells extracted from a poultry carcass.”

Brasher continued his questioning.

“All these hypotheticals become a little silly, but isn’t this more like saying a chicken is made from corn, right?” the judge said. “The chicken eats corn; the chicken then turns that into chicken. There is a tighter connection, but isn’t it the same kind of idea? You started with poultry product, but then you just came up with something else.”

Jason Muehlhoff, representing the state, argued that Upside Foods has not been prosecuted under the law, so the company does not yet have a cause for a preliminary injunction against the Florida ban.

“They need to prove that the PPIA grants them a certain right,” Muehlhoff said. “And again, that’s a high bar here.”

Muelhoff also said the company already had “two bites at the apple” in the lower court.

U.S. Circuit Judge Kevin Newsom, a Trump appointee, joined Brasher and Huck on the panel.

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