Arizona State Rep. David Cook, a Republican representing a mostly rural district southeast of Phoenix, wants to make sure consumers are not deceived when they go grocery shopping.
Cook, who is a cattle rancher, said this was the primary reason he sponsored a bill this legislative session that seeks to limit the definition of “meat” to food items that come from harvested production livestock. This would bar products that would come from cell-based methods from being marketed as “meat.”
Consumers who walk up to the meat counter in the grocery store today are confident that what they ask for is exactly what they’re going to get, he said. And consumers deserve that same confidence when cell-based meat arrives in stores.
“The thought of having something in a petri dish grown and then to be able to be labeled as meat, to me, is wrong because that’s not what it is,” Cook told Food Dive. “Meat is derived from an animal carcass, whether it’s pork or chicken or beef. I don’t care what you think about it, but the consumer should know exactly what it is they’re purchasing and consuming.”
This type of product — meat that is produced by growing animal cells — is in development at many startups in the United States and abroad. While prototypes are constantly being made, mostly in fermenters that look and behave similar to those used to brew beer, products are far from ready for consumers. Companies are now starting to build pilot plants in order to make their products. They are refining the nutrient-rich solution that is used to feed the growing cells. And they are working with regulators worldwide to try to get their products approved for sale.
“Meat is derived from an animal carcass, whether it’s pork or chicken or beef. I don’t care what you think about it, but the consumer should know exactly what it is they’re purchasing and consuming.”
Arizona state representative
But bills like the one Cook has proposed will get part of the regulatory piece done before products hit shelves, at least in Arizona. It is similar to a bill he proposed last year, which failed in the state House of Representatives by a vote of 22 to 36. That bill included a provision limiting dairy product terminology to products derived from milk. Cook decided to leave the dairy provisions out this year and keep his bill limited just to meat. He stressed that this year’s bill does not impact anything that is currently in grocery stores, and he thinks he has support from his constituents and colleagues.
This bill may seem like a solution to an issue that is years from existing, but it’s a popular subject in state legislatures today. According to issue tracking from the National Conference of State Legislatures, 17 laws restricting meat labeling passed in 14 states in 2019. Some of these laws prohibited plant-based items from being labeled as “meat,” but they all also squarely focus on cell-based products.
As state legislative sessions for this year get started, more bills like Cook’s are being filed and under consideration. According to the Good Food Institute, bills to regulate meat labeling have been proposed in nine states so far this year.
This focus on state-level legislation makes sense. The National Cattlemen’s Beef Association — the leading advocacy, marketing and trade organization for the cattle industry — has put passing policies that address “fake meat” at the top of its national agenda in 2018 and 2019.
Scott Weathers, a senior policy analyst with the Good Food Institute, told Food Dive bills in state legislatures that require different labeling for cell-based or plant-based meat are all about protectionism. He calls this kind of bill “label censorship.”
“You don’t have to take my word for it,” Weathers, who handles the group’s policy efforts in states, said. “In a lot of states, legislators themselves who have introduced these bills say, ‘You know, I’m doing this to protect the cattle industry.'”
Doug Farquhar, a program director at NCSL who tracks the labeling issue, told Food Dive state legislatures are trying to get something on the books before these products come to market. And this is different than legislation dealing with plant-based products — like ensuring cauliflower products cannot bear the label “rice.”
“Obviously, cauliflower’s not rice. There’s a difference between the two,” Farquhar said. “But cell-based meat, they’re both exactly the same thing. They’re both identical pieces of meat. So why would you want to label it lab-based? What’s the advantage? And I think, to be honest with you, the cattlemen are probably scared, and if they’re not, they should be, because it takes an enormous amount of resources to raise a cow. …And if you end up taking those markets away, which, you know, theoretically could be gone in 20 years … they’re going to be losing 30% to 40% of their market, which is huge.”
Why state policy?
Considering that food products are federally regulated, why are state legislatures taking on this issue?
It has a lot to do with the way the products are going to get to consumers. After all, cell-based meat products are so new, there’s no regulatory approval for them anywhere — even for manufacturers who are ready to sell products.
In the United States, producers — both of conventional meat and those who are working on cell-based varieties — consumer groups and other interested parties have been working on this discussion since 2018. Interested parties packed into an auditorium at the FDA’s office in the Washington, D.C. suburbs in July 2018 to share insight on how they think cell-based meat should be regulated. While the majority of processed food items are solely under the regulatory jurisdiction of the FDA, many at this hearing felt the USDA should also oversee the segment. USDA already oversees meat products, giving it regulatory expertise that FDA does not have.
Last March, FDA and USDA formalized an agreement to jointly regulate cell-based meat. But there are still many details to work out, especially because these two agencies don’t work together on regulating any single product. In the classic example of the somewhat fractured way responsibilities are delineated, the FDA regulates cheese pizza, but if there is pepperoni on top, it falls under the jurisdiction of USDA’s Food Safety Inspection Service.
“In a lot of states, legislators themselves who have introduced these bills say, ‘You know, I’m doing this to protect the cattle industry.'”
Senior policy analyst, Good Food Institute
In almost a year since that agreement was announced, no more details of the cell-based meat regulatory framework have come out publicly. In December, U.S. senators Mike Enzi and John Tester introduced a bill to further delineate each agency’s responsibilities in cell-cultured food products. The bill has yet to be scheduled for a hearing. On one hand, that might be OK since there are no products coming to market just yet — Just has said its cell-based chicken nuggets are ready to be sold in limited quantities, but is currently targeting an Asian market, and Memphis Meats is about two years away from having product to sell.
On the other hand, the lack of clear regulations from the federal government leaves the field wide open for legislation to dictate the labeling issue. There is bipartisan legislation before Congress that would require all beef-like products that don’t come from cows to be labeled “imitation,” but it’s unlikely that it will see action. The legislation was introduced in October and still hasn’t been scheduled for a hearing.
Weathers said his organization believes any state legislation on this issue is preempted by federal law. The Federal Meat Inspection Act and the Federal Poultry Inspection Act both prohibit additional labeling restrictions on meat.
But, he said, state labeling legislation will make a difference in the long run. Regardless of whether these labeling laws may pass legal muster, they will slow down the pace of getting products to market because companies will likely have to fight them in court.
“It creates additional compliance costs for business,” Weathers said. “It puts uncertainty into the marketplace. It means that each state that passes one of these bills is going to require a slightly different labeling scheme. So it becomes companies that want to introduce their products are faced with a pretty bad decision.”
The options facing those companies, Weathers said, were detailed in a lawsuit Tofurky filed against Arkansas. Last year, the Natural State passed a law that could fine anyone selling a product labeled “meat” that did not come from animals up to $1,000. The plant-based meat company argued that the law forced the company to risk huge financial penalties, come up with a marketing campaign and packaging just for Arkansas and try to ensure that other states’ marketing campaigns or packages don’t cross state lines, completely change its national marketing and packaging strategy, or pull out of Arkansas.
Farquhar said state laws also create a minefield for federal regulators, which generally prefer to work with what is already on the books.
“Instead of just simply saying, ‘This is the language we want to do and we are out in front of the states,’ the states have already moved ahead of them,” he said. “So now they’re forced to navigate to meet all these state standards, make sure that they don’t have to preempt states.”
Cook said that he isn’t concerned with his bill being preempted by federal policy.
“Isn’t marijuana illegal in the federal government?” he asked, mentioning there are many states with their own laws allowing the substance.
‘Desire to compete on a fair, even playing field’
While the National Cattlemen’s Beef Association has made meat labeling laws a centerpiece of its annual policy proposals, it isn’t necessarily behind this state-by-state push.
Danielle Beck, senior director of government affairs for the NCBA, told Food Dive its interest lies in making sure consumers are eating safe products and are not misled by labels. It wants to ensure that newcomers don’t squeeze out traditional meat through less-than-accurate claims or products that meet less food safety scrutiny.
“I think that this issue can really be boiled down to our industry’s desire to compete on a fair, even playing field,” Beck said. “Our efforts working with USDA and FDA on cell-cultured products have been focused on how to maintain that fair, even playing field when these products are ready to come to market.”
“Instead of just simply saying, ‘This is the language we want to do and we are out in front of the states,’ the states have already moved ahead of them [the federal government]. So now they’re forced to navigate to meet all these state standards, make sure that they don’t have to preempt states.”
Program director, National Conference of State Legislatures
The way that this battle is often painted in the media — as Big Meat vs. startups encroaching on their dominance — is not quite accurate, Beck said. Looking at the wider picture of where the food industry is going in the future, she said it’s clear that cell-based meat will not only be hitting the market, but may be necessary to meet demand for high quality protein.
What NCBA wants is to ensure that all meat is held to the same standard, she said. Under USDA, meat and poultry facilities and products are constantly inspected. For food items regulated under FDA, those inspections happen much less often. Also, USDA-regulated products with misleading labels get stopped before they hit shelves, while FDA enforcement tends to happen after a product is sold. The memorandum of understanding reached last year between FDA and USDA so far seems that it can accomplish that, Beck said.
As for a specific label for these products, NCBA has proposed the federal government do a consumer survey to see what terminology would work best for them in order to be informed, Beck said.
“Our big thing … with cell cultured products [is] it’s derived from actual livestock,” Beck said. “…We haven’t made any determinations on what they should be called because we think that that’s a little bit preemptive and preliminary. …We wanted the agencies to hold off on making those decisions until products could be looked at under a microscope by the scientific community to see how they hold up at the cellular level compared to conventionally produced meat products.”
Who’s fighting back?
Many of these state-level bills also would outlaw the “meat” label on plant-based products, and the fight from plant-based manufacturers and advocates has been fierce. Groups including the Plant Based Foods Association, Good Food Institute and American Civil Liberties Union, and companies including Upton’s Naturals and Tofurky have filed lawsuits against states that have passed these labeling laws.
But who’s fighting for cell-based meat on the state level? It seems to be a relatively barren field. Cook said he hasn’t heard any opposition on his bill on behalf of cell-based meat. At a Feb. 6 hearing on a meat labeling bill in Maryland, not a single witness appeared to oppose it.
Several companies developing cell-based meat told Food Dive they hadn’t directly gotten into the state-level fight. They have been working hard on regulatory issues, but aren’t watching the states so closely. Federal law overrules state law, and many in the industry Food Dive spoke to felt that cell-based meat, like its conventional counterpart, is covered by the Federal Meat Inspection Act.
“We focused our efforts primarily on the federal level because we wanted to establish a clear regulatory paradigm that would apply across our nation,” Eric Schulze, vice president of product and regulation at Memphis Meats, told Food Dive.
And federal regulation is vital to this industry. Since this is a brand new segment of the food business, there is a lot to figure out. While several companies worldwide are creating cell-based meat, there are no regulations anywhere that could allow them to come to market. Andrew Noyes, head of global communications for Just, told Food Dive in an email the company hopes to make its first small-scale sale of cell-based chicken soon, likely to high-end restaurants in Asia, as soon as they get regulatory approval. Yaakov Nahmias, founder and chief science officer of Israel-based Future Meat Technologies, told Food Dive he expects to have regulatory approval to start selling in Israel next year. Schulze told Food Dive he is hopeful that federal regulations will clear the way for cell-based meat to get on the market in the United States in the next couple of years.
“I think that this issue can really be boiled down to our industry’s desire to compete on a fair, even playing field. Our efforts working with USDA and FDA on cell-cultured products have been focused on how to maintain that fair, even playing field when these products are ready to come to market.”
Senior director of government affairs, National Cattlemen’s Beef Association
Several companies in the U.S. cultured meat space — including Memphis Meats, Just, Fork & Goode, BlueNalu and Finless Foods — joined forces last year to form the Alliance for Meat, Poultry & Seafood Innovation, also known as AMPS Innovation. The alliance will lobby Washington, D.C. on the industry’s concerns, work on educating consumers about cell-based products and serve as a marketplace of ideas for members. A statement the alliance emailed to Food Dive indicated that federal law is still its focus.
“AMPS Innovation’s view is that a patchwork of state labeling rules is as confusing to consumers as it is costly to business, so while we are monitoring the proposals being put forward at the state level, our current efforts are focused on federal regulation as it applies to both labeling and oversight of the production process for the entire country,” the statement reads. “As food companies, we want our potential customers to be able to read the label on our products, know what they are buying, and know that the label means the same thing whether you’re shopping in New York or in Oklahoma. AMPS Innovation and our members are committed to the work we do because we believe that cell-based/cultured meat, poultry and seafood will be a critical and sustainable component, in partnership with the overall agriculture sector, to meeting increased demand for meat as the world’s population continues to grow, and we are advocating for a clear path to market so we can deliver on that mission.”
While major strides have been made in development of cell-based meat, most companies say they are still years away from developing products that can come to market. So why are states focusing on this issue now?
In Arizona, Rep. Cook said it is important to get this law set in stone now, before there are any products on the market.
“It sends a clear message to those people that … would produce a product like this of what the guidelines and standards are for our consumers, and what we expect them to be able to understand about their consumption of food and their safety,” Cook said. “So they have plenty of time to design their packaging, wording, whatever, and they’re not wasting any time or money.”
“We focused our efforts primarily on the federal level because we wanted to establish a clear regulatory paradigm that would apply across our nation.”
Vice president of product and regulation, Memphis Meats
The National Conference of State Legislatures’ Farquhar said while there are no products yet, a variety of different state laws could push Congress to quickly come down with one standard. While the law requiring labeling of GMO ingredients in food isn’t quite a perfect parallel, Farquhar said there were years of several different proposals being floated that would require labeling. Congress didn’t take action on any of them — until Vermont passed a bill mandating GMO labeling that would have significantly changed how products could be sold in the state. As the new law took effect, Farquhar said, Congress quickly passed a federal labeling law that nullified Vermont’s single-state effort.
It’s difficult to predict what Congress may do about this patchwork of state laws when the time comes for cell-based meat to get on the market, Farquhar said. Federal courts generally rule against limitations on commercial speech, so they tend to look for copyright violations or food safety issues in labeling laws.
“If there are no health risks from eating plant-based meat or cell-based meat, the state, the government does not have the authority to require labeling just to require labeling,” Farquhar said. “They have to have some sort of reason why you are … basically restricting a First Amendment right to free speech. Why do you want to limit that? You don’t want to have anybody yelling, ‘Fire!’ in a crowded movie house. [That] is the standard restriction. Why do you not want people to think that cell-based meat is not meat? Why are you going to … put a label on it? What’s the government’s interest?”