The New Texas Ban on Cell-Cultured Protein Is an Unconstitutional Interstate Trade Barrier, a Lawsuit Says
The ban's supporters, whose motivation is plainly protectionist, claim they are defending freedom by restricting it.
As a dedicated meat eater who nevertheless takes seriously the ethical concerns of people who eschew animal flesh, I am intrigued by the potential of cell-cultured protein products to address those concerns while still satisfying carnivorous cravings. But by passing a law that took effect on Monday, Texas legislators have decreed that I should never have the opportunity to try those products within the borders of the state where I live.
This presumptuous restriction on consumer choice, which follows similar bans in Florida, Alabama, Mississippi, Montana, Indiana, and Nebraska, should offend anyone who claims to support free markets, regardless of his dietary preferences. The Texas ban is especially galling because its rationale is forthrightly protectionist, with no plausible consumer safety justification. And according to a lawsuit that two California producers of cultured protein filed this week in the U.S. District Court for the Western District of Texas, the ban is also illegal and unconstitutional because it is preempted by federal law and creates an interstate trade barrier that aims to shield Texas businesses from competition.
The Texas ban "is about one thing: protecting in-state agricultural interest from innovative, out-of-state competition," says the Institute for Justice, which represents the plaintiff businesses, Wild Type and Upside Foods. "That's not just wrong, it's unconstitutional."
Under Senate Bill 261, which Gov. Greg Abbott signed into law on June 20, "a person may not offer for sale or sell cell-cultured protein for human consumption." The law defines "cell-cultured protein" as "a food product derived from harvesting animal cells and artificially replicating those cells in a growth medium to produce tissue."
The penalties for defying that edict are steep. They include an "administrative penalty" up to "$25,000 a day for each violation," with each day treated as a distinct violation, and a "civil penalty" with the same maximum that likewise accumulates on a daily basis. A violation also can be charged as a misdemeanor punishable by up to a year in jail or a fine up to $4,000 for a first offense. Subsequent offenses are punishable by up to two years in jail or a fine up to $10,000.
These threats disrupted the business plans of Wild Type, a San Francisco company that makes cell-cultured salmon, and Upside Foods, a business based in Emeryville, California, that makes lab-cultivated chicken. The Food and Drug Administration has approved both products for sale, saying there is no reason to think they are any less safe than conventionally produced salmon or chicken. Upside also obtained approval from the U.S. Department of Agriculture (USDA), which regulates poultry.
S.B. 261's supporters, who aim to override those regulatory decisions, see these products as an intolerable threat to Texas business interests. The lawsuit notes that state Sen. Charles Perry (R–Lubbock), who introduced the bill in his chamber, made no bones about his protectionist motivation, warning in his "Statement of Intent" that "the introduction of lab-grown meat could disrupt traditional livestock markets, affecting rural economies and family farms." State Rep. Stan Gerdes (R–Bastrop), the bill's lead House sponsor, likewise said, during a legislative debate, that "the goal of this bill is to protect our agriculture industry."
Why does that industry need protection? "We didn't lose ranchers because of climate change," Gerdes explained in an X post last April. "We lost them because Washington sold them out to foreign meat and fake lab junk. Time to go all-in on American beef."
The Texas & Southwestern Cattle Raisers Association (TSCRA) unsurprisingly agreed. "SB 261 ensures that only beef and other animal proteins raised by traditional, natural methods are sold to consumers in the state of Texas," the trade group said in a May 26 press release. TRSCA President Carl Ray Polk Jr. said "the core of this bill" is "to protect our consumers, the beef industry and animal agriculture."
The ban "is a massive win for Texas ranchers, producers, and consumers," Texas Agriculture Commissioner Sid Miller said in a June 26 press release. "Texans have a God-given right to know what's on their plate, and for millions of Texans, it better come from a pasture, not a lab. It's plain cowboy logic that we must safeguard our real, authentic meat industry from synthetic alternatives….Texans feed the world with real food from real animals raised by real people. Not only that, but Texas raises the best beef and poultry products in the world. Lab-grown meat just doesn't belong in Texas, and now, it doesn't have a place on our tables."
Despite those references to consumer protection, the ban's backers could not muster any credible evidence that cultured protein endangers people who eat it. "If anything," Wild Type and Upside argue, "cultivated meat poses fewer health and safety concerns than conventional meat because it is grown under clean and controlled conditions and therefore is not exposed to animal waste, animal pathogens, or environmental toxins."
During an April 7 committee hearing, a witness from the Texas Department of State Health Services, which took no position on the bill, was asked, "Do you know of any reason why this would be a health risk—a public safety, a public health risk?" Her reply: "Personally, I don't have any information on that."
Rep. John Bucy III (D–Austin) was puzzled. "I'm just trying to understand what we're doing with this bill in public health committee," he said. "Because if it's not a public health risk, I'm just wondering why we would tell the free market that [it] can't be free."
Rep. Mike Olcott (R–Weatherford), who ended up backing the ban, initially expressed mixed feelings about it. "I'm torn on this bill because I see pluses and minuses," he said during an April 7 hearing. "I mean, I believe in [the] free market and also don't want cattlemen to go out of business because…we're always going to need cattle."
As the ban's most zealous supporters tell it, they are standing up for freedom by restricting it. Echoing the conspiratorial fantasy promoted by Florida Gov. Ron DeSantis, Gerdes said he was "fighting back against the global elite's plan to force the world to eat fake meat grown in a petri dish to achieve their authoritarian goal." That putative plot, he warned, is "bad for Texans, and it's bad for our ranchers." The TSCRA likewise claimed the ban "pushes back on an agenda by certain radical groups and companies who seek to end traditional animal agriculture."
That pushback, Upside argues, is precluded by federal law. The Poultry Products Inspection Act (PPIA) says states may not impose requirements "with respect to premises, facilities and operations" of a federally regulated producer. It also forbids state "ingredient requirements" that are "different" from those required by the PPIA.
"The USDA has established that cultivated poultry cells may be used as an ingredient in finished poultry products, that products containing those cells may be sold in interstate commerce, and that the USDA's broader regulatory framework governing the lawful use
of ingredients in poultry products applies to cultivated poultry products," the lawsuit notes. "The USDA has also stated that its existing regime of inspections applies to cultivated meat products."
Upside and Wild Type say the Texas ban also "violates the dormant aspect of the Commerce Clause of the United States Constitution" because "it was enacted with the purpose, and has the effect, of discriminating against competition coming exclusively from out of state." They note that "Texas has a robust and powerful agricultural industry that produces and sells conventional meat" but is not the home of any businesses that make cultivated meat. The ban therefore "prevents an exclusively out-of-state industry from competing with Texas's in-state agricultural interests."
Upside raised similar claims in a federal lawsuit that the Institute for Justice filed last year against Florida's ban on cultivated meat. Last April, U.S. District Judge Mark Walker rejected the preemption claim but ruled that Upside had "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.
In both Florida and Texas, ban backers risibly claimed they were resisting authoritarianism by dictating that consumers may not buy federally approved food products. But there should be no question about who the real authoritarians are in these cases.
Wild Type and Upside "don't want to force anyone to eat cultivated meat," the Texas lawsuit notes. "But they do want the opportunity to grow their businesses and sell their innovative products to willing consumers, so that consumers can decide for themselves whether their products are worth eating."
