We have blogged on several occasions, most recently on June 19, 2020, about so-called “meatless meat” statutes – statutes intended to regulate the labeling of products resembling traditional meat or poultry but produced from plant- or lab-based materials. The Food Safety and Inspection Service (FSIS) of the Department of Agriculture has concurrent jurisdiction over such matters along with the FDA, and the agencies are contemplating issuing regulations.

The Harvard Law Animal Law and Policy Clinic (ALPC) recently asked FSIS to postpone any regulations in the area of lab-based meat until it has a better understanding of the safety of such products and has had an opportunity to review proposed labels.

The idea of lab-based meat was first bruited in 1930. The first patent for such a product was awarded in 1999 and numerous start-ups claim that they are ready, or almost ready, to sell lab-based meat commercially.

Proponents of such products assert there are numerous advantages compared to conventional meat. Lab-based meat requires less energy, significantly less water, and almost no land. It will produce far fewer greenhouse gas emissions. Lab-based meat is certain to be healthier than conventional meat, as it involves no possibility of fecal contamination, and it can be engineered to produce superior nutritional properties such as lower fat or sodium. Finally, because the lab-based meet has no central nervous system, harvesting it cannot produce pain as with slaughtering.

The FSIS and FDA have entered into an agreement splitting the regulatory responsibility for lab-based meat. FDA governs until the meat is harvested, FSIS thereafter. FSIS has exclusive authority over labeling.

The agreement between FSIS and FDA explicitly states that FSIS should allow producers of lab-based meat to advertise the product as such. The ALPC urges FSIS to continue that policy. It argues that meatless meat statutes banning the use of the word violate the First Amendment and, indeed, most such statutes enacted by the states have been enjoined. The only exception we know of, in Missouri, survived judicial review because the state adopted a construction of the statute that eliminated the ban.

The ALPC urges FSIS to require disclosures of qualifiers on lab-based meat only when necessary to protect consumers from increased health risks or material differences from conventional meat products. This suggests that ALPC would not require disclosure that the meat was grown in a laboratory rather than a field. We believe a prudent manufacturer would make that disclosure. Indeed, a likely selling point for the product would be that it is better than conventional meat for all of the reasons set forth above.

If FSIS does enact regulations on labeling of lab-based meat, those regulations likely preempt any different state laws. Manufacturers of such products can be expected to lobby for a nationwide labeling regime in order to avoid differing state laws that make compliance and marketing more difficult.