A petition submitted to the Food Safety and Inspection Services requests that products not “derived from animals born, raised, and harvested in the traditional manner” be excluded from the definitions of beef and meat, including plant-based products and cell-cultured meats, citing possible customer confusion due to false or misleading advertising. The petitioner requests that FSIS amend its Labeling Policy Book to account for such change.
On February 9, the US Cattlemen’s Association submitted a petition (USCA Petition) to the US Department of Agriculture’s Food Safety and Inspection Service (FSIS) requesting that FSIS exclude from the statutory definitions of “meat” and “beef” any products that are not “derived from animals born, raised, and harvested in the traditional manner.” Such excluded products would presumably include plant-based products that resemble the appearance and taste of beef products and cell-cultured meat (CCM)—meat grown in a cell culture instead of culled from an animal (together, Alternative Products). The USCA Petition presents the following assertions to support such exclusions:
The USCA Petition’s first argument is that Alternative Products, by their very nature, do not fit within the common dictionary definitions for “meat” and “beef,” nor in the federal statutory and regulatory definitions of such terms. In this context, the Federal Meat Inspection Act (FMIA) provides the following definition for the term “meat food product:”
[A]ny product capable of use as human food which is made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, or goats, excepting products which contain meat or other portions of such carcasses only in a relatively small proportion or historically have not been considered by consumers as products of the meat food industry, and which are exempted from definition as a meat food product by the Secretary under such conditions as he may prescribe to assure that the meat or other portions of such carcasses contained in such product are not adulterated and that such products are not represented as meat food products.
Additionally, the petitioner notes that the USDA Agricultural Marketing Service’s regulations define “beef” as the “flesh of cattle” and further define “beef products” to mean “edible products produced in whole or in part from beef, exclusive of milk and products made therefrom.”
According to the USCA Petition, Alternative Products do not fit within the bounds of these definitions because (1) plant-based products resembling the appearance and taste of meat/beef are not derived from an animal and thus should not suggest that they do, and (2) CCM is grown in a laboratory and thus is not slaughtered in the traditional manner.
The USCA Petition’s second argument advances the premise that excluding Alternative Products from the definition of “meat” is necessary to eliminate potential consumer confusion since it is “widely understood” by consumers that these terms only include products derived naturally from animals.
To support this argument the USCA Petition provides a discussion of the Federal Trade Commission’s (FTC’s) regulation of unfair or deceptive acts, including false and misleading advertising of foods, devices, and cosmetics. In short, these regulations prohibit advertisements for products that are “misleading in a material respect,” determined by considering the “representations made or suggested,” the “extent to which the advertisement fails to reveal facts material in the light of such representations,” and whether such representations were “important to a consumer’s decision to buy or use the product.”
Thus, according to the USCA Petition, “[t]he absence of a definition of ‘beef’ or ‘meat’ and specific rules and parameters as to what constitutes them is resulting in mislabeling and may lead to consumer confusion.”
The petitioner’s core position argument is fairly straightforward. It seeks to limit the use and related association of the term “meat” to products derived from animals harvested in the traditional matter. It asserts that this is necessary to avoid misleading consumers of Alternative Products, which, by exclusion, will need to be labeled in a distinct and different manner.
The USCA Petition also makes a specific procedural request: that FSIS provide documentation of such determination by amending its Labeling Policy Book. Through this request, the petitioner is indirectly arguing that no further rulemaking or other public procedures are necessary or desirable in order for FSIS to publicly accommodate their position.
As is so often the case with government, such issues of process are more important than they might initially seem. FSIS has a long and complicated history surrounding questions of how such definitions can be interpreted, and whether they can or should be driven into the informal rulemaking process. Similar issues entangled the agency in a decade of rulemaking and litigation from the mid-70s to the mid-80s involving the status of mechanically separated meat. More recently, related questions were central to the highly publicized litigation between Beef Products International and ABC News that was settled in 2017. And to further compound the procedural question, the petitioner here may be choosing the wrong vehicle. In this regard, one should consider FSIS’s rather cryptic repudiation of the Labeling Policy Book and its underlying process as well as FSIS’s more recent confusing statements regarding its interpretation of the limits of the ground beef standard. In a blog post on that topic, we discussed how, unbeknownst to many in the beef industry, FSIS changed its position concerning the ground beef standard despite having virtually nothing on the public record justifying the change. We expressed concerns with such an approach given that FSIS prior label approval authority is a powerful regulatory tool, and thus needs to be exercised in a manner that ensures both the proper flow of information to the public and maximum uniformity of treatment to the regulated industry.
The issues raised here by the petitioner are important and timely. But, perhaps ironically given its issuance of a public petition, the petitioner may have decreased the possibility that this issue can be resolved in the rapid, informal manner it seems to prefer. Regardless of the actual mechanism to be employed, FSIS now appears obligated to organize some type of public process where USCA’s assumptions and assertions can be tested and where the broad range of views on this issue can be entertained, appropriate data can be evaluated, and a sensible and defensible public position on this question can be established.
Please also see the following Well Done blog posts on some of the subjects discussed above:
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
 21 U.S.C. §§ 601-95.
 7 C.F.R. § 1260.119.
 7. C.F.R. § 1260.120.
 15 U.S.C. § 52.
 Id. at § 55(a)(1).
 See FTC Policy Statement on Deception (Oct. 14, 1993).
 See Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 53 (D.C. Civ. 1984).