Well Done

Harvard Law School’s Animal Law & Policy Clinic (Clinic) submitted a petition on June 9 to the USDA’s Food Safety and Inspection Service (FSIS), urging it to adopt a labeling approach for the emerging category of cell-based meat and poultry that “does not overly restrict speech and that respects the First Amendment.”[1] In its response of July 23, FSIS indicates that it considers the document a request for future rulemaking.[2]

The petition indicates that the Clinic “focuses on high-impact opportunities to improve the treatment of animals through litigation, policy analysis and applied academic research.” From this perspective, the Clinic views development of these technologies as just such an opportunity, and it advocates adoption of labeling policies that would appear to facilitate widespread public acceptance of these products.[3] More specifically, the Clinic maintains that there is no need for the development of new regulatory standards of identity in this area, that such products should be allowed to be labeled with traditional nomenclature such as “hamburger,” and that additional labeling disclosure should not be required absent compositional differences in the finished product or additional food safety risk.[4]

Although the first two elements of the request are not surprising, the third is more aggressive. Without directly saying so, the petition strongly suggests that the government would not have a legal basis for requiring that a given pound of hamburger be labeled as cell-based unless it failed to meet such a standard. In doing so, it does a fair amount of constitutional saber rattling in support of a broad reading of the concept of commercial free speech.[5] How this line of argument can best be reconciled with the occasional vagaries of FSIS’s prior label approval process—or with the concept of the Consumer’s Right to Know that has so animated other labeling issues of recent interest, such as mandatory disclosure of bioengineered ingredients—remains to be seen as the rulemaking process in this area unfolds.

Substance aside, the existence and submission or the petition itself is noteworthy, since one does not often see the words Harvard Law School and FSIS included in the same sentence. This suggests that the particular issue has resonated within a larger community than the one normally engaged in debates over meat and poultry regulation, a reality that is certain to persist.