With a focus upon the emerging cell-cultured meat industry, there has been considerable recent discussion about the significance of jurisdictional differences at the federal level between the US Department of Agriculture and the US Food and Drug Administration. But what now appear to be moving on a parallel track are various recently enacted laws or proposed legislation at the state level designed to impose new labeling requirements and/or restrictions for meat-alternative products, both cell- and plant-based, generally designed to restrict access to traditional terminology such as “ground beef” on such products' labels.
In general, these initiatives would restrict the use of such terms to products derived only from edible portions of any livestock or poultry carcass. Some of these state initiatives would even go so far as to criminalize the labeling of food products inconsistent with such state requirements. The growing list of states pursuing such initiatives includes Arizona, Arkansas, Colorado, Indiana, Mississippi, Missouri, Nebraska, North Dakota, Washington, and Wyoming.
What is unclear, at least to us, is how, if enacted, these state initiatives could withstand a legal challenge based upon a claim of federal preemption. For instance, while details are still scarce, federal preemption may have played a role in the recent settlement of the lawsuit challenging the Missouri law prohibiting a food product from being labeled as meat if it is not derived from harvested livestock or poultry.
For a more comprehensive discussion of the potential preemption issues read the article by Morgan Lewis lawyers Robert Hibbert and Amaru Sanchez in Law360.