UPSIDE Sues Florida Over Cultivated Meat Sale Ban

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Florida Defends Against Lawsuit Targeting its Cultivated Meat Ban

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Wednesday, October 2, 2024

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As we previously blogged about, UPSIDE, a manufacturer of cultivated chicken, has sued Florida regarding its ban (SB 1084) on the sale and manufacturing of cultivated meat. The complaint included a request for an injunction (i.e., to block enforcement of the law pending resolution of the case) which the parties finished briefing last month.
One of the issues which was briefed was whether SB 1084 is preempted by the federal Poultry Products Inspection Act (PPIA). The PPIA’s preemption provision (21 USC 467e) states in part that “[r]equirements within the scope of this chapter with respect to premises, facilities and operations of any official establishment which are in addition to, or different than those made under this chapter may not be imposed . . . Marking, labeling, packaging, or ingredient requirements (or storage or handling requirements found by the Secretary to unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under this chapter may not be imposed . . .”
As a threshold matter, Florida has argued that the PPIA, including its preemption provision, does not apply because cultivated meat cannot be considered a “poultry product” as that term is defined in the PPIA (“any poultry carcass, or part thereof; or any product which is made wholly or in part from any poultry carcass or part thereof, excepting …[ingredients with small proportions of meat exempted by USDA]. 21 USC 453(f). In contrast, UPSIDE argues that it’s product “easily falls within the PPIA’s broad definition of ‘poultry product,’ since it is composed almost entirely of chicken cells.”
Florida also argues that the PPIA “contemplates state laws that complement and supplement its regulatory scope” and that it does not violate the preemption provision because that provision does “not set requirements for the particular ingredient in UPSIDE’s quasi-chicken products” nor “require UPSIDE to change its plants, laboratories, production methods, or other operations.” Stated differently, Florida argues that “SB 1084 does not ban anything that PPIA mandates.” In contrast, UPSIDE counters that SB 1084 is preempted “because it imposes ingredient and operational requirements that are not identical to those imposed under federal law.” USDA permits the ingredient that UPSIDE sells while Florida does not.
We will continue to monitor and report on the outcome of this litigation. The case number is 4:24-cv-00316 and was filed in the United States District Court for the Northern District of Florida.