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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

The pending and still tentative resolution of jurisdictional issues between the US Department of Agriculture (USDA) and the Food and Drug Administration (FDA) surrounding cell-cultured meat and poultry products should address one of the three core regulatory issues confronting this emerging industry. Assuming that it holds, a resolution will establish an overarching role for FDA in the broad assessment of the technology in order to ensure that it is safe. Once the foods themselves enter the production stage, ongoing inspection authority and related jurisdiction will revert to the USDA through the Food Safety and Inspection Service (FSIS) if the cell-cultured items in question replicate the traditional meat and poultry items that currently fall within that agency’s jurisdiction.

The second core issue involves the details of how such oversight will be conducted. Resolution of the jurisdictional issue creates the framework for an answer here, since we can presume at this point that such products will be subject to the same continuous inspection requirements applicable to traditional meat and poultry items. This means, among other things, requiring the physical presence, on a daily basis, of FSIS inspection personnel at the production facility. But note also that any cell-cultured seafood products, which fall outside of FSIS’s jurisdiction, will presumably be subject to FDA oversight, which is far less labor intensive.

Resolution of the jurisdictional issue also has direct implications for the third basic question—how such products should be labeled. What has been relatively underreported in this context is the collateral benefit that FSIS oversight will attach to such products: federal labeling preemption. Language in both the Federal Meat Inspection Act and the Poultry Products Inspections Act (the Acts) explicitly states that marking, labeling, and ingredients requirements in addition to or different from those required under the Acts may not be imposed by any state or territory. This hidden superpower that attaches to all FSIS regulated products has consistently been invoked by the meat and poultry industries to turn away any number of state and local initiatives attempting to make such impositions.

Notwithstanding this clear statutory language, several states have recently enacted laws or introduced legislation imposing new labeling requirements and/or restrictions for food products wanting to use the term “meat” on their labels. In general, these state initiatives restrict the use of the term “meat” to the edible portion of any livestock or poultry carcass. Some of these state initiatives even go so far as to criminalize food products that are inconsistent with a state’s requirements. The ever-growing list of states undertaking such initiatives includes Colorado, Indiana, Mississippi, Missouri, Nebraska, North Dakota, Virginia, and Wyoming.

While many of these initiatives also target plant-based products, which would not come under the protected umbrella of labeling preemption, the challenge to cell-based products is clear. Given the growing popularity of meat-alternative products, you don’t need a weatherman to know which way the wind blows—through various state legislatures across rural America, with the crucial significance of FSIS preemption.

We will continue to monitor these and other state initiatives as they develop. Stay tuned.