A Federal Judge Greenlights a Lawsuit That Claims Florida's Ban on Lab-Grown Meat Is Unconstitutional
U.S. District Judge Mark Walker says Upside Foods has plausibly alleged that the law's protectionism violates the "dormant" Commerce Clause.
"We will save our beef," Florida Gov. Ron DeSantis declared when he signed the nation's first ban on cultivated meat last May, portraying the law as part of his administration's "focus on investing in our local farmers and ranchers." Florida Commissioner of Agriculture Wilton Simpson concurred that the governor was "standing up for Florida's farmers and consumers," saying "we must protect our incredible farmers" from "a disgraceful attempt to undermine our proud traditions and prosperity." He promised to "keep Florida's agricultural industry strong and thriving."
According to Upside Foods, a California-based manufacturer of lab-grown poultry products, those comments reflect the protectionist motivation of Florida's law, which it says effectively discriminates against out-of-state businesses. On Friday, a federal judge in Florida concluded that the company, which sued state officials last August, had plausibly alleged a violation of the "dormant" Commerce Clause, a doctrine that "prevents the States from adopting protectionist measures and thus preserves a national market for goods and services," as the U.S. Supreme Court put it in 2019.
"One of the primary reasons for the enactment of the Constitution was to secure a national common market," said Paul Sherman, a senior attorney at the Institute for Justice, which represents Upside. "Today's ruling is an important vindication of the principle that states cannot close their borders to innovative out-of-state competition, and a warning to other states that are considering banning cultivated meat."
The technology that DeSantis perceives as a threat to "our local farmers and ranchers," which was first developed in 2013, uses cell samples to grow meat in bioreactors, obviating the need to raise and slaughter animals. Worldwide, more than 150 companies are working on such products, which have been approved for sale in Singapore, Israel, and the United States, where their distribution so far has been limited to chicken briefly sold by a few restaurants.
Less than a week after DeSantis signed Senate Bill 1084, Alabama Gov. Kay Ivey likewise approved a preemptive ban on cultivated meat. Other states, including Arizona, Tennessee, and Texas, have "considered similar bills banning lab-grown meat," Reason's Emma Camp notes, although they "ultimately did not pass."
In addition to portraying Florida's ban as unconstitutional protectionism, Upside argued that it was preempted by federal law. Although U.S. District Judge Mark Walker rejected that claim, he found that Upside "has plausibly alleged that Florida's ban violates the dormant Commerce Clause by discriminating in effect against interstate commerce through excluding out-of-state businesses and products from Florida's market to protect in-state businesses against a projected decline in market share." Walker therefore rejected the state's motion to dismiss Upside's lawsuit.
S.B. 1084 makes it a crime to manufacture or distribute "any meat or food product produced from cultured animal cells." That offense is classified as a second-degree misdemeanor, punishable by a maximum fine of $500 and up to 60 days in jail. Grocery stores or restaurants that sell the prohibited products can lose their operating licenses and face administrative fines of up to $5,000 per violation.
Those penalties apply to any business that sells cultivated meat to Florida consumers, regardless of where it is located. But as Walker notes, "a facially neutral law can violate the dormant Commerce Clause if it discriminates in effect against interstate commerce."
In this case, Upside "asserts that Florida's ban discriminates against out-of-state
firms and products because it prohibits out-of-state cultivated meat from entering
Florida to compete against in-state conventional meat," Walker writes. "Florida's ban on cultivated meat, Plaintiff says, is a proxy for discriminating against out-of-state products since cultivated meat is entirely produced outside of Florida. Plaintiff alleges that the ban also confers a benefit to in-state conventional meat and agricultural businesses by shielding them from the potential decline in market share that they would face from competing with out-of-state cultivated meat. And according to Plaintiff, the ban's protectionist effects were intentional."
In addition to quoting the press release that DeSantis issued when he signed S.B. 1084, Upside's complaint notes that he praised the bill "from behind a podium that featured a sign stating, 'SAVE OUR BEEF.'" That signing event featured the president and president-elect of the Florida Cattlemen's Association, who "acknowledged that the purpose of the Ban is to protect their industry from out-of-state competition."
The reason "we have all these cattlemen here," DeSantis explained, was that Florida had "put down the mark very clearly: We stand with agriculture. We stand with the cattle ranchers. We stand with our farmers." If the state allowed the sale of cultivated meat, he said, it would "wipe the people sitting here today out of business." Simpson, the agriculture commissioner, complained that it was "Californians [who] are participating in this crap."
DeSantis acknowledged that Florida allows the sale of plant-based meat substitutes made by companies such as Impossible Foods and Beyond Meat. The crucial difference with cultivated meat, he said, is that "they want to say it's the same as raising cattle and doing it naturally, so there will be then no reason that you have this [conventional meat] industry. So it is designed to be a threat to agriculture as we know it." In light of that danger, he explained, "we're snuffing this out at the beginning."
State legislators who supported the ban delivered a similar message. "If you believe that we are doing this because we know that Florida's agriculture can hold us down and provides plenty of safe, quality beef and agricultural products, you are absolutely correct," Rep. Danny Alvarez (R–Hillsborough County), the bill's House sponsor, said in March 2024. Around the same time, Rep. Dean Black (R–Nassau County), a rancher, said Floridians who want to try cultivated meat should "go to California," but they "sure as heck" should not be able to get it "here in Florida."
As Upside's case proceeds, Walker notes, Florida will have to rebut the inference of protectionism by citing a legitimate public interest that cannot be served by "nondiscriminatory alternatives." But Upside argues that the state's ban is "not supported by any adequate health or safety justification."
In approving the sale of the company's products, the lawsuit notes, the Food and Drug Administration "had no questions regarding the safety of UPSIDE's preharvest production process or the safety of foods composed of or containing cultivated chicken resulting from UPSIDE's production process." Upside adds that "the safety and healthfulness of cultivated meat and poultry is subject to the same standards of federal regulation as conventional meat and poultry."
Even as DeSantis bragged about banning cultivated meat, Upside notes, he "did not voice any food-safety issue regarding cultivated meat products." More generally, state officials "did not cite concerns that cultivated meat is less healthy or safe than conventional meat." If anything, Upside argues, "cultivated meat and poultry poses fewer health and safety concerns than conventional meat because it is grown under clean and controlled conditions and thus not exposed to animal waste, animal pathogens, or environmental toxins."
Even if "there were a legitimate, nondiscriminatory justification" for legislation regarding cultivated meat, Upside says, "Florida has a variety of less burdensome alternatives." If legislators wanted to avoid "consumer confusion over the nature of UPSIDE's product," for example, they could impose "disclosure requirements for food establishments that ensure cultivated meat or poultry is not sold as conventional meat or poultry."
In addition to presenting himself as the savior of Florida ranchers and farmers, DeSantis bizarrely claimed he was "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," counterintuitively presenting legal restrictions on consumer choice as a blow against authoritarianism. Upside "doesn't want to force anyone to eat cultivated meat," the company says. "But it does want the opportunity to distribute its product to willing consumers, so that those consumers can decide for themselves whether UPSIDE's product is worth eating. And UPSIDE has a right to do so, because SB 1084 is unconstitutional."
