The Legal Meat of This Chapter

What is meat? We use this term in a large number of ways, from literal to more figurative. The Merriam-Webster online dictionary provides several

1 Missouri Meat Advertising Law, MO Rev.

2 MO Rev. Stat. § 265.496.

3 FDA, “Statement from USDA Secretary Perdue and FDA Commissioner Gottlieb on the Regulation of Cell-Cultured Food Products from Cell Lines of Livestock and Poultry” (2018), available at www. fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm626117.htm.

4 See G. Balstad & J. Bold-Erdene, “Can You Call It Meat? Lawsuit Takes Issue with Labeling”, Mis­sourian, Oct. 1, 2018, available at www.columbiamissourian.com/news/local/can-you-call-it-meat- lawsuit-takes-issue-with-labeling/article_14d1450e-b13f-11e8-a6ef-c3a0888f96da.html.

5 See B. Linnekin, “Arkansas' New Food-Labeling Law Is Veg-on-Veg Crime”, Reason, Apr. 13, 2019, available at https://reason.com/2019/04/13/arkansas-new-food-labeling-law-is-veg-on/.

6 FDA, supra note 3.

DOI: 10.4324/9781003271918-9 definitions.^[371] First, there is “food: the edible part of something as distinguished from its covering (such as a husk or shell).”^[372] Then there is “animal tissue con­sidered especially as food,” including “flesh of a mammal as opposed to fowl or fish” and “flesh of domesticated animals.”^[373] Then the dictionary provides more figurative uses, such as “dinner,”^[374] “the core of something,”^[375] and “favorite pursuit or interest.”^[376]

Given these multiple meanings, why might folks be concerned about the precise definition of meat? Because this concern is evident from the recent engagement of states on this issue. That is, a number of states have recently explored “meat labeling” laws that would regulate the use of the word “meat” to characterize various products.

Take Missouri as an example. On August 30, 2018, the Missouri legislature passed a bill known as the “Missouri Meat Advertising Law.”^[377] The Missouri Department of Agriculture issued a public statement describing the state as “the first state to take steps to prevent misrepresentation of products as meat that are not derived from livestock or poultry.”^[378] To prevent “misrepresentation,” non-livestock-derived products must “must include a prominent statement on the front of the package, immediately before or immediately after the product name, that the product is ‘plant-based,’ ‘veggie,’ ‘lab-grown,’ ‘lab-created’ or a comparable qualifier.”^[379] Moreover, “[p]roducts must include a prominent statement on the package that the product is ‘made from plants,’ ‘grown in a lab,’ or a comparable disclosure.”^[380] Various organizations filed a lawsuit against Missouri alleging that the law would mislead consumers and stifle competition from plant-based products.^[381] Missouri is reportedly in the process of settling this lawsuit, although “details appear scant.”^[382]

Despite the current Missouri settlement proceedings, other state legislatures are contemplating similar actions. In Nebraska, State Senator Carol Blood has sponsored a bill restricting insect-based, plant-based, or lab-grown food from

The Legal Definition of Meat 105 being labeled as “meat.”^[383] In particular, this proposed bill states that “Meat means any edible portion of any livestock or poultry carcass or part thereof and does not include lab-grown or insect or plant-based food products.”^[384] Similarly, a bill was introduced in Wyoming by Senator Wyatt Agar that would require all “[c]ell cultured or plant based products” to have labels of “containing cell cultured product” or “vegetarian,” “veggie,” “vegan,” “plant based” or “other similar term indicating that the product is plant based.”^[385] In Virginia, Del­egate Michael Webert moved to amend the state code on misbranded food^[386] to require that consumable products marketed as “meat” made from materials other than that “made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, or goats” be labeled as “imitations.”^[387]

Likewise, the USDA and FDA have announced a proposal to “jointly over­see the production of cell-cultured food products derived from livestock and poultry.”^[388] Pursuant to this proposal, the USDA and FDA signed a formal agree­ment on March 7, 2019, to collaborate on the regulation of such products.^[389] In particular, the FDA has committed to focusing on the pre-marketing aspects of cultured meats, including the “initial cell collection and the development and maintenance of qualified cell banks,”^[390] “proliferation and differentiation of cells through the time of harvest,”^[391] and “inspections and follow-up activi­ties, including taking enforcement action if necessary, to ensure that cell bank and cell culturing facilities are in compliance with [FDA’s] applicable laws and regulations.”^[392] The USDA, in turn, would focus on cell harvests, including “[requiring that] each establishment that harvests cells cultured from livestock or poultry subject to the FMIA or PPIA for the purpose of producing human

food... bear the USDA mark of inspection,”^[393] “[conducting] inspection in establishments where cells cultured from livestock and poultry subject to the FMIA and PPIA are harvested, processed, packaged or labeled,”^[394] and “[requir­ing] that the labeling of human food products derived from the cultured cells of livestock and poultry be preapproved and then verified through inspection.”^[395] Further developments are still proceeding, as the agreement states that the agencies will “develop a more detailed joint framework or standard operating procedure to facilitate coordination of shared regulatory oversight related to the harvest of biological material”^[396] and will “undertake a joint process to identify any changes needed to statutory or regulatory authorities to effectuate the framework established pursuant to this agreement, and will work cooperatively to pursue, or to implement, any such changes.”^[397]

In the meantime, US Senator Cindy Hyde-Smith has introduced a statute that would give the USDA primary authority over the regulation of cell-cul­tured food products.^[398] This bill, known as the Cell-Cultured Meat and Poultry Regulation Act, would further formalize this division of labor between the two agencies, committing the FDA to oversight over “cell collection, cell banks, and cell growth and differentiation”^[399] and the USDA to oversight over “the processing, preparation, packaging, and labeling of food products.”^[400]

This concern over cell-cultured protein has been shared by the Congres­sional Research Service (CRS), a legislative branch agency which “provid[es] comprehensive and reliable legislative research and analysis that are timely, objective, authoritative and confidential, thereby contributing to an informed national legislature.”^[401] That is, the CRS has also conducted a review of the statutory basis for the FDA and the USDA Food Safety Inspection Service (FSIS) to exert jurisdiction over cell-cultured meats.^[402] To explain the catalyst for its report, the CRS described how, in early 2018, “the livestock industry and the House Appropriations Committee addressed cell-cultured meats”^[403] and how the US Cattlemen’s Association “submitted a petition to USDA ask­ing [the USDA Food Safety and Inspection Service] to establish meat labeling requirements that exclude product not derived directly from animals raised and

The Legal Definition of Meat 107 slaughtered.”^[404] As the CRS noted, “[f]ood labeling is often contentious.

II.