FSIS Petition: Don’t Rush Rulemaking for Labeling of Cell-based Meat and Poultry Products; Respect the First Amendment

August 17, 2020By Riëtte van Laack

On July 23, FSIS acknowledged that it had received a Petition from the Harvard Law School’s Animal Law and Policy Clinic (Harvard or Petitioner) regarding the naming of cell-based or cultured meat and poultry products. Petitioner requests that the Food Safety Inspection Service (FSIS) of the USDA establish a labeling approach for cell-based meat and poultry that “does not overly restrict speech and that respects the First Amendment.”

As readers of this blog know, the issue of naming of what has been referred to as cell-based, cultured, or clean meat has been a topic of contention in recent years.  In February 2018, the United States Cattlemen’s Association (USCA) asked that FSIS establish formal definitions for “meat” and “beef” that would exclude what USCA called “lab grown” meat.  The USCA petition generated much discussion and based  on comments by many, including other meat and poultry associations, it became clear that there was no general agreement on the necessity to prohibit the use of the terms such as beef, meat, chicken, etc. for cell-based animal products.  FSIS has not yet responded to the USCA petition.

Meanwhile, in the absence of federal action, several states developed laws that bar cell-based meat companies from using common food terms traditionally used for products from slaughtered animals such as “beef” and “chicken.”

Cell-based products are still in development and detailed information about the composition and nature of the future cultured meat products is not (publicly) available.  (In a recent scientific conference, Dr. G. Forgacs, chief scientific officer of Fork & Goode, indicated that the cultured product is a “structureless biomass.”)

Nevertheless, based on statements by FSIS officials cited by Petitioner it appears that FSIS is in the process of drafting labeling regulations for cell-based products.  More recent statements in a joint FDA/USDA webinar confirm that FDA and FSIS are developing joint principles for the labeling of these products and FSIS mentioned that it plans to develop regulations for the labeling.  However, it did not identify a timeline.

The Petition by Harvard requests that FSIS use a flexible labeling approach that does not require new standards of identity or disclosures unless necessary to protect consumers from “an increased food safety risk or material compositional difference.” The Petition warns that a restrictive federal labeling policy can be expected to face legal challenges because of violation of the First Amendment commercial speech protections.  Petitioner asserts that, at this time, there is insufficient information about the cell-based products and, therefore, FSIS cannot determine what restrictions (if any) on the use of existing standards of identity and common or usual names now used on conventionally produced products would be needed to protect the consumer.

Petitioner also calls on FSIS to consult with FDA to ensure “regulatory consistency for cell-based meat and seafood products” and to offer “certainty to producers and states.”  The recently posted joint webinar indicates that FSIS and FDA are in fact cooperating on the development of procedures regarding the safety and labeling of cell-based products.

FSIS considers the Petition a rulemaking petition and referred it to the Office of Policy and Program Development.