Americans love meat. According to the USDA, between beef, pork, chicken, and turkey, the average American eats nearly 225 pounds of meat per year. 1 But, increasingly, some American consumers are concerned about both the ethics and environmental impact of consuming more than 34 million cows and a staggering 8 billion chickens every year.

It was those very concerns that led Mayo Clinic trained cardiologist Uma Valeti to found UPSIDE Foods. UPSIDE Foods is a California-based startup that manufactures cultivated meat. Its flagship product is real chicken meat grown from real chicken cells, but it doesn’t require raising or killing chickens. Consumers get the taste they know and love without the ethical concerns surrounding factory farming.

But not everyone is a fan of UPSIDE’s innovative product. On May 1, 2024, Florida Gov.Ron DeSantis signed SB 1084, the first law in the country to ban the manufacture, distribution, or sale of cultivated meat.  2

Why did Florida ban cultivated meat? It’s not because of concerns about safety. The USDA and FDA have both reviewed the evidence that UPSIDE’s product is just as safe as conventional chicken and given the company the green light to sell its product throughout the country. Instead, Gov. DeSantis has positioned the ban as a blow to “the global elite’s plan to force the world to eat meat grown in a petri dish or bugs to achieve their authoritarian goals.”  3

Yet lurking behind this claim is a second justification: old-fashioned economic protectionism. The ban was enacted after intense lobbying by cattle interests, and its anticompetitive purpose is no secret. For example, Florida’s Commissioner of Agriculture, who is a farmer, openly praised the ban for protecting the state’s cattle industry, and Gov. DeSantis announced the signing from behind a podium bearing a sign that read “Save Our Beef.”

But protecting in-state agricultural interests from innovative out-of-state competition is not a legitimate use of government power. Indeed, a major reason for adopting the U.S. Constitution was to ensure a national common market—in the words of Alexander Hamilton, “A unity of commercial, as well as political, interests.”  4

That is why UPSIDE Foods has joined with the Institute for Justice to file a federal lawsuit challenging Florida’s ban on cultivated meat. The lawsuit, filed in the U.S. District Court for the Northern District of Florida on August 13, 2024, raises claims under the Commerce Clause and the Supremacy Clause of the U.S. Constitution. All UPSIDE Foods wants is the right to sell its innovative product to willing Florida consumers. People who don’t want to try it don’t have to eat it. But they cannot make that decision for Floridians who do want to try it. The Constitution protects the freedom of Florida consumers to make that decision for themselves.

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UPSIDE Foods and Cultivated Meat

While training to become a cardiologist, Uma Valeti was also busy running the student kitchen at his medical school. Needing to buy several hundred pounds of meat, he took a trip to a local slaughterhouse. That trip would prove transformative. As Uma describes it, “I left that day knowing I never wanted to set foot in a slaughterhouse again, and with a firm belief that there simply had to be a better way to feed people.” 5

Hoping to turn that belief into a reality, Uma founded UPSIDE Foods (previously known as Memphis Meats) in 2015. His vision was to produce delicious, safe, high-quality “cultivated meat” from real animal cells. No slaughterhouse required.

Cultivated meat is made of the same cell types as conventional meat, but the cells are grown directly, rather than grown in a farm animal. Those cells can be arranged in similar structures as animal tissues, replicating the taste, texture, and nutritional profiles of conventional meat.

The manufacturing process begins with acquiring and banking cells from an animal. These cells are then grown under clean conditions. Much like what happens inside an animal’s body, the cells are fed basic nutrients and proteins. 

As they grow, the cells turn into the skeletal muscle, fat, and connective tissues that make up meat. Once mature, the cells are then harvested, prepared, and packaged into final products. Using these techniques, UPSIDE Foods created the world’s first cultivated beef meatball in 2016. 

More recently, the California-based startup became the first company to complete three significant federal regulatory milestones that allow it to legally sell cultivated meat in interstate commerce. These regulatory milestones relate to a chicken product that looks, cooks, and tastes like a boneless, skinless chicken breast. First, in November 2022, the FDA issued UPSIDE a “No Questions Letter,” indicating that it had reviewed UPSIDE’s evidence that its product was safe and had no questions or disagreement with those conclusions. Second, in June 2023, the USDA approved UPSIDE’s product label. Finally, in June 2023, the USDA issued UPSIDE a Grant of Inspection, meaning that the company has met the applicable federal requirements and standards to operate the facility where its meat is produced.

UPSIDE believes that when it comes to a new product like cultivated meat, tasting is believing. So although its product is not yet on store shelves, UPSIDE has sold its chicken product at restaurants and served it at tasting events—including one in Miami on June 27, 2024. UPSIDE had plans to host another tasting event in Miami this December at Art Basel, an international art show. But UPSIDE had to put those plans on hold after Florida banned cultivated meat.

Florida’s Ban on Cultivated Meat

On May 1, 2024, Florida Gov. Ron DeSantis signed SB 1084, banning the manufacture, sale, or distribution of cultivated meat in Florida. The law went into effect on July 1, 2024. 

In a statement announcing the signing, the governor’s office did not cite concerns about public health and safety. Instead, the governor and the commissioner of agriculture focused on culture-war issues and protecting farmers from competition:

“Today, Florida is fighting back against the global elite’s plan to force the world to eat meat grown in a petri dish or bugs to achieve their authoritarian goals,” said Governor Ron DeSantis. “Our administration will continue to focus on investing in our local farmers and ranchers, and we will save our beef.” 

. . .

“We must protect our incredible farmers and the integrity of American agriculture. . . . ”said Florida Commissioner of Agriculture Wilton Simpson. . . .“Together, we will keep Florida’s agricultural industry strong and thriving.” 6

Violations of the ban are criminally punishable by up to 60 days in jail, and food establishments that violate the ban can have their permit revoked and face administrative fines of up to $5,000 per violation. 7

Legal Claims

A driving purpose behind the enactment of the U.S. Constitution was the desire to create a national common market. As Chief Justice John Marshall put it, after independence but before the enactment of the Constitution, states “guided by inexperience and jealousy” began enacting “iniquitous laws and impolitic measures, from which grew up a conflict of commercial regulations, destructive to the harmony of the States.” 8  “This was the immediate cause, that led to the forming of [the Constitutional] convention.” 9

At that convention, the Framers proposed multiple clauses to the draft Constitution to restore and secure free trade among the states. Florida’s ban on the manufacture, distribution, and sale of cultivated meat violates two of these provisions: the Commerce Clause and the Supremacy Clause.

Commerce Clause

Florida’s ban on cultivated meat was enacted with the express purpose of protecting in-state economic interests from purely out-of-state competition. There are no manufacturers of cultivated meat based in Florida. Instead, all of them are based outside the state. And Florida made no secret of the fact that the ban was intended to keep these out-of-state businesses from competing with in-state producers of conventional meat. To the contrary, at the signing ceremony for the law, both Gov. DeSantis and the commissioner of agriculture touted the law as one that would “save our beef,” “protect our farmers,” and “keep Florida’s agriculture industry strong.” 

That violates the Commerce Clause of article I, section 8 of the Constitution. 

The Commerce Clause grants the U.S. Congress the exclusive power to regulate interstate commerce. And from our country’s earliest decisions interpreting that power, it has been understood not only to grant Congress affirmative power to regulate interstate commerce, but to deprive states of the power to enact laws that unduly restrict interstate commerce. 

This principle is known as the “negative” or “dormant” aspect of the Commerce Clause or, simply, the Dormant Commerce Clause. And it “prohibits economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” 10  That includes not only laws that expressly single out out-of-state interests for disfavored treatment, but also laws, like Florida’s, that are neutral on their face, but that have the purpose and effect of discriminating against interstate commerce. 

Supremacy Clause

Under the Supremacy Clause of Article VI of the United States Constitution, the Constitution and laws enacted under its authority are “the supreme law of the land.” This constitutional principle manifests itself in the doctrine of “federal preemption,” under which a state law may be held invalid if it conflicts with the operation of a validly enacted federal law.

Here, Congress—exercising its power under the Commerce Clause—has enacted a variety of laws that regulate the interstate market in meat. Particularly relevant are the Federal Meat Inspection Act 11 and the Poultry Products Inspection Act. 12  Both laws contain express preemption provisions that forbid states from enacting regulations that conflict with or exceed those in federal law. Florida’s ban on cultivated meat violates two of these provisions. 

First, Florida’s ban imposes “ingredient requirements” that exceed those in federal law. 13  Federal regulations authorize the use of cultivated cells as an ingredient in meat and poultry products, 14  and Florida law forbids it. 

Second, Florida’s ban imposes restrictions on “premises, facilities, and operations” that exceed those in federal law. 15 Federal law authorizes the manufacture of cultivated cells in federally regulated facilities for use in food, and Florida law forbids it. The Supreme Court has expressly examined this clause, holding that a state cannot avoid it “just by framing [its law] as a ban on the sale of meat produced in whatever way the State disapprove[s].” 16

Litigation Team

The litigation team consists of IJ Senior Attorneys Paul Sherman, Sam Gedge and Ari Bargil and IJ Attorney Suranjan Sen.

The Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty. For over 30 years and at no cost to clients, IJ has litigated in courts of law and in the court of public opinion to defend the rights of entrepreneurs and consumers to engage in a wide array of commerce free of burdensome, irrational, and arbitrary government interference. Through its National Food Freedom Initiative, IJ has brought a variety of legal challenges to laws that interfere with the ability of people to buy, sell, grow, or advertise different foods.