August 30, 2018

From Farm-to-Table to Lab-to-Table

Scott Schulman

Meat that is cultured in a lab and grown outside of the animal is currently being developed and likely will be available for purchase in the near future. Modern agriculture and livestock protection create an enormous amount of food every year. Unfortunately, this food production puts a substantial strain on land use, water resources, air resources, and public health. Livestock requires more energy, water, and space than other sources of nourishment. As the population continues to grow, and per capita meat consumption continues to rise, land resources are going to be pushed to the limit.

Food regulation in the United States is primarily divided between the United States Department of Agriculture (USDA) and the Federal Drug Administration (FDA). Due to the novelty of lab-grown meat, also known as in vitro meat and cultured meat, it is not yet clear which agency will take the regulatory authority. This article argues that the USDA should be given the authority to regulate lab-grown meat because it is in the best position to get it on the market quickly, safely, and in a manner appealing to consumers.

Taking Meat from the Farm to the Lab

The discovery of stem cells in the early 1980s made the idea of lab-grown meat feasible. Michael Specter, Test-Tube Burgers: How Long Will It Be before You Can Eat Meat That Was Made in a Lab? New Yorker, May 23, 2011, at 32. In the 1990s and 2000s, the idea gained momentum and received attention from a wide variety of sources including NASA; People for the Ethical Treatment of Animals; Bill Gates; Sergey Brin, the cofounder of Google; and Peter Thiel, the founder of PayPal.

Regardless of whether you have been waiting for lab-grown meat your whole life, or find the process unnatural and disturbing, it is clearly coming. Companies such as Memphis Meats and Modern Meadow are actively culturing meat in their labs and are getting close to bringing their products to market. In fact, Tyson Foods, one of the largest poultry providers in the world, has begun researching and investing in meat alternatives. See Maggie McGrath, Tyson Launches $150 Million VC Fund That Could Help Hedge Against a Meatless Future, Forbes.com Market Moves, Dec. 5, 2016, available at www. forbes.com/sites/maggiemcgrath/2016/12/05/in-a-hedge- against-a-meatless-future-tyson-foods-launches-150-million- vc-fund/#21fd6f70435b. The fact that traditional meat companies are investing in alternatives suggests that they foresee a market advantage for meat developed without the need to raise livestock.

The Key to Sustainable Food

Despite widespread concerns about the meat industry, meat consumption continues to increase in the United States and only approximately 3 percent of Americans identify as vegetarian. See Pew Commission on Industrial Farm Animal Production, Putting Meat on the Table: Industrial Farm Animal Production in America 38 (2008). Concerns about meat consumption are growing at even faster rates in China, India, and other developing countries. In fact, China has given its citizens guidelines to cut meat consumption in half. Oliver Milman and Stuart Leavenworth, China’s Plan to Cut Meat Consumption by 50% Cheered by Climate Campaigners, Guardian.com, June 20, 2016. This information suggests that increased concern with animal agriculture does not appear to correlate with a reduction in meat consumption.

Traditional livestock agriculture has a disproportionately high ecological impact. At the current level of meat consumption, the livestock industry takes up close to 80 percent of the world’s farmland and is among the largest contributors to greenhouse gas (GHG) emissions. Tom Foster, Can Artificial Meat Save The World?, Popular Science, Nov. 18, 2013. Further, animal agriculture is one of the biggest consumers of fresh water in the world. As the world population continues to grow and as incomes rise in developing countries, demand for meat could increase by 74 percent worldwide. Stephen Wiedemann et al., Environmental Impacts and Resource use of Australian Beef and Lamb Exported to the USA Determined Using Life Cycle Assessment, 94 J. Cleaner Production 67 (2015); USDA Advisory Committee on Biotechnology and 21st Century Agriculture, Preparing for the Future at 4 (2013). This increase will have severe impacts on the environment. There is a legitimate concern that the world will not be able to ecologically handle the increased demand for meat in the near future.

About 80 percent of the world’s farmland is used to support animal agriculture. Foster, supra. This includes both the land used to raise livestock and the land that is used to grow the crops that feed the animals. In the United States, the largest use of that land is devoted to agriculture. In fact, the 2012 USDA Census of Agriculture estimates that over 40 percent—more than 1,209 million acres—is used for agriculture in the United States. Of that 40 percent, 80 percent is used to raise or feed livestock, enough land to cover nearly half of the continental United States. USDA Econ. Research Service, Land Use and Land Cover Estimates for the United States (Sept. 20, 2016). This is not an efficient use of the land. One pound of cooked beef uses 298 square feet of land, 27 pounds of feed, 211 gallons of water, and 4,000 BTUs of energy from fossil fuels. Foster, supra. Livestock already takes up 26 percent of surface land in the world, and 45 percent of the land that is suitable for agriculture is currently forest. Zachary Schneider, In Vitro Meat: Space Travel, Cannibalism, and Federal Regulation, 50 Hous. L. Rev. 991, 995 (2013). Devoting agricultural land to livestock cultivation leads to deforestation, which is not only a land-use issue, but contributes to air pollution because forests can no longer remove carbon dioxide from the air. Most of these crops are not going directly to consumers, but to feed livestock and create animal protein.

Greenhouse Gas Emissions and Air Pollution

Animal agriculture is also one of the leading sources of water pollution in the United States. The pollution is due both to fecal runoff from livestock operations and the pesticide and fertilizer runoff from the plants grown to feed the livestock. It is estimated that much of current water pollution in the United States is caused by agriculture. Edwin D. Ongley, Control of Water Pollution from Agriculture––FAO Irrigation and Drainage Paper, 55, 8–9 (1996). Of that pollution, livestock waste is estimated to make up one-third of water pollution from agriculture. Erika N. Hartliep, Federal and Pacific Northwest State Water Laws about Dairies, 37 Idaho L. Rev. 681, 683–84 (2001). When animal waste enters the water, it can reduce oxygen levels, create algal blooms, and damage marine life. Additionally, animal waste contains a plethora of pathogens that enter drinking water and cause grave health effects if not managed properly. Id. Because lab-grown meat does not create fecal matter and does not get fed through other source agriculture, it could help alleviate a major source of water pollution.

In addition to water pollution, animal agriculture is a major drain on our fresh water supply. Revisiting the example of a hamburger, one pound of ground beef uses 1,799 gallons of fresh water, compared to 216 gallons for a pound of soy or 108 gallons for a pound of corn. About 20 pounds of grain must be watered to get just one pound of edible beef from a cow. The number is slightly better for pigs and chickens at 4 pounds and 2.5 pounds of grain, respectively. Betty Hallock, To Make a Burger, First You Need 660 Gallons of Water, L.A. Times Daily Dish online column, Jan. 27, 2014.

This is especially important in states that already have water quantity problems. Unfortunately, water is not distributed equally, and western states that have the most pressing drought problems also have the highest percentage of their water devoted to agriculture. For example, in California, agriculture consumed 76 percent of total fresh surface-water withdrawals. Erin Brodwin, One Chart Sums Up the Real Problem in the California Drought—and It Isn’t Almonds, Bus. Insider (Apr. 13, 2015). During the recent California drought, lawn watering restrictions and the amount of water used by the almond industry were well publicized and discussed, but unsurprisingly, animal agriculture was rarely mentioned even though it was using more water than either of those sources. This points to one of the larger issues of this article––that meat is such a large part of the culture that people are hesitant to suggest reducing consumption, even when the situation is dire.

Animal agriculture not only affects land use, water use, and water pollution, but also contributes to several types of air pollution including GHGs and odor. Livestock is among the leading causes of deforestation worldwide, particularly in rainforests. Brian Henning, Standing in Livestock’s Long Shadow: The Ethics of Eating Meat on a Small Planet, 16 Ethics & Env’t 63, 72–75 (2011). See also Deforestation and Its Extreme Effect on Global Warming, Sci. Am., www.scientificamerican.com/article/deforestation-and-global-warming (last visited June 20, 2018).

Animal processing and cattle flatulence gasses, particularly methane, directly contribute to climate change. Animal agriculture also generates emissions from the vast transportation network needed to sustain it, including transporting feed, live and slaughtered animals, and processed animal products that are ready for the market. Due to animal agriculture’s many and varied impacts on the environment, its overall contribution to global climate change and GHG emissions are difficult to measure, but reasonable estimates put it close to 20 percent. Anthony J. McMichael et al., Food, Livestock Production, Energy, Climate Change, and Health, 370 Lancet 1253, 1253 (Oct. 6, 2007).

Animal agriculture is directly connected to a wide variety of public health concerns that are linked to animal rearing conditions that clearly do not exist with lab-grown meat, including antibiotic-resistant bacteria, pathogen development, foodborne illness, and odor. Factory farming is able to be as efficient as it is, in part, from the use of antibiotics on healthy animals. The use of antibiotics allows factory farmers to keep the animals in incredibly close and unsanitary conditions that would typically lead to widespread infection and enables the animals to grow at previously unheard-of rates. While this strikes many people as unseemly, it is very efficient. Those who advocate for more organic, antibiotic-free meat may not be aware of how severely this trend could impact efficiency. Seventy percent of the antibiotics used in the United States are given to healthy livestock. Elanor Starmer, Environmental and Health Problems in Livestock Production: Pollution in the Food System, The Agribusiness Accountability Initiative 1, 2 (2006). It is suspected that overuse of antibiotics in livestock is the primary reason for the increase of these antibiotic-resistant bacteria, such as E. coli, Salmonella, Campylobacter, and Listeria, that can spread rapidly, enter the meat supply chain, and cause serious human illnesses. Katherine M. Shea, Antibiotic Resistance: What Is the Impact of Agricultural Uses of Antibiotics on Children’s Health?, 112 Pediatrics 253, 253–54 (2003).

Except for Listeria, these organisms spread primarily through contact with other animals or fecal matter. Therefore, the potential for bacterial growth would be less likely to occur in meat that is grown in a lab environment that allows for more control and sterilization of the environment. However, this is not to say that there would be no worry of illness in lab-grown meat. As with any food, improper handling and unsanitary conditions could lead to infection and disease. Thus, like any other entity that handles foods, meat labs will need to meet sanitary standards.

This article is not focused on the ethics of factory farming and animal treatment, but it is worth briefly noting these concerns as another benefit of the introduction of lab-grown meat. In addition to the host of ecological and pathological issues with farm-raised meat, more people have become concerned with the treatment of the animals in modern animal agriculture. A push for more ethical treatment of the animals we eat has also surged at the state level. For example, in the last election, Massachusetts’ citizens voted overwhelmingly to ban the sale of animal products raised in extremely confined cages. Massachusetts Question 3––Minimum Size Requirements for Farm Animal Containment—Results: Approved, N.Y. Times.com, Dec. 13, 2016, available at www.nytimes.com/elections/results/massachusetts-ballot-measure-3-improve-farm-animal-confines.

Giving pigs and chickens the ability to move and allowing cows to graze are appealing to people who are concerned with animal welfare, but who do not want to give up eating animals. Fears of the antibiotics and steroids used in conventional factory farming, or the simple opinion that it tastes better or is of a higher quality, are all potential considerations that probably have contributed to negative views of factory farming. In all likelihood, the negative views are due to a combination of these factors. However, factory farming practices lead to an unfortunate catch-22: “What’s best for the planet is often what’s worst for the animal.” Tamar Haspel, Vegetarian or Omnivore: The Environmental Implications of Diet, Wash. Post, March 10, 2014, at 15. Confinement, steroids, and other controversial factory farming mainstays are much more energy- and land-efficient than the alternatives.

The land use, water quality, air quality, health, and ethical issues related to animal farming will demand substantial changes in either the way we produce animal protein or the quantity consumed per capita. Fortunately, moving toward lab-grown meat addresses all of these issues.

Traditional Livestock Compared to Lab-Grown Meat

First, lab-grown meat produced on a large scale would require significantly less land than traditional agriculture and production facilities could be built vertically close to where the meat is consumed. See M. Betti Datar, Possibilities for an In Vitro Meat Production System, 11 Innovative Food Sci. & Emerging Tech. 13, 14 (2010). Thus, the strain animal agriculture has on land use would be greatly limited. Lab-grown meat could reduce air pollution both by removing sources of GHG generated by livestock, such as methane, and substantially reduce emissions that build up from transporting meat from rural areas to urban centers. Lab-grown meat could reduce deforestation, allowing the trees to remain in place and absorb GHGs. Additionally, lab-grown meat will forego many of the health risks associated with traditional agriculture because it will not have the same risks posed by diseased animals and fecal contamination. To be fair, as with any new product, there may be unforeseen health issues that arise from lab-grown meat, although currently there are no specific health risks attributed to it. Based on the focused cultivation of lab-grown meat in contrast to traditional animal agriculture, experts predict that lab-grown meat would require significantly less energy to produce. Datar, supra, at 14.

Changing food habits is difficult, and people tend to be skeptical of biotechnology in food. The closer a product is to what consumers are used to, the better its chances of penetrating the market. Regulating lab-grown meat within USDA, the same agency that regulates traditional meat products, would be a good first step toward acceptance of lab-grown meat by a broad swath of consumers.

The Regularity Uncertainty of Lab-Grown Meat

Food, meat, and agricultural regulation in the United States is a complicated regulatory scheme that involves several different agencies and authorities. The USDA is primarily in charge of the regulation of meat, poultry, and eggs in our food system. Meat Inspection Act of 1907, 34 Stat. 1260 (1907) (codified as amended at 21 U.S.C. §§ 60 et seq.). The bulk of the USDA’s authority comes primarily from the Wholesome Meat Act, which established a national meat inspection authority for the USDA, and the Federal Meat Inspection Act, which sets out its specific inspection duties, branding of meat products, and limits on adulteration. The FDA’s primary authority to regulate food comes from the Federal Food, Drug, and Cosmetic Act, which gives the FDA authority over nutrition labels, adulterated food, and additives. Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040 (1946) (codified as amended at 21 U.S.C. §§ 301 et seq.). These laws and regulations were not written with lab-grown meat in mind, and it therefore exists in a jurisdictional gray area. There can be a case made for either or both agencies to regulate lab-grown meat: Which agency is in the best position to bring safe lab-grown meat to the market and encourage consumers to replace livestock with lab-grown meat?

Often seemingly trivial variances can be the difference between FDA authority and USDA authority. For example, the FDA inspects eggs when they are in a shell, but USDA has authority over other egg products. The FDA regulates closed-faced chicken sandwiches, while the USDA regulates open-faced chicken sandwiches. A frozen cheese pizza is under FDA rule, while UDSA has dominion over a frozen pepperoni pizza. FDA, Investigations Operations Manual, Ex. 3-1, available at www.fda.gov/downloads/ICECI/Inspections/IOM/ucm127390.pdf.

These distinctions have a significant effect on food producers. USDA inspection of food manufacturers is better funded and more frequent than FDA. A product regulated by the USDA must be inspected before it goes to market, whereas an FDA-regulated product does not. Gretchen Goetz, Who Inspects What? A Food Safety Scramble, Food Safety News (Dec. 16, 2010) www.foodsafetynews.com/2010/12/who-inspects-what-a-food-safety-scramble. Thus, the seemingly irrelevant distinctions, like an extra piece of sandwich bread, can have a substantial effect on a food producer’s regulatory burden.

As discussed above, lab-grown meat will likely be ready for consumer sale within the next decade. Thus, it is imperative that the federal government begin to prepare the regulatory scheme it will fall under. The first decision that will have to be made is which agency will have the primary regulatory authority. The USDA can make a claim to regulatory authority over lab-grown meat under the Federal Meat Inspection Act. Under the authority of the Act, the USDA defines meat as, “[t]he part of the muscle of any cattle, sheep, swine, or goats which is skeletal or which is found in the tongue, diaphragm, heart, or esophagus.” 9 C.F.R. § 301.2. The process being advanced to create lab-grown meat involves growing skeletal muscle taken from a sample or cell of an animal. Schneider, 50 Hous. L. Rev., at 999–1003. It is reasonable to say that the skeletal muscle that originated and simply grown outside of the animal rather than inside the animal falls within the USDA’s definition of “meat.”

The argument for the FDA comes from the fact that lab-grown meat is not a natural product and could fall under the definition of additives in the Federal Food, Drug, and Cosmetic Act. 21 U.S.C. § 342 (2005). Further, the FDA took the lead the in the approval of cloned animals, genetically modified salmon, and new animal drugs. These are all like lab-grown meat in that they are traditional biological agents that have undergone a modern implementation. Schneider, 50 Hous. L. Rev., at 1009–12. It can be argued that since it is possible that lab-grown meat will have to include certain material outside of cells and cultures from the animals to create things such as the appropriate fat content, it should not be considered the natural equivalent of meat. However, many livestock today are pumped full of steroids, hormones, and antibiotics to grow faster and are fed diets that they would never eat in nature to fatten them up. Thus, just because lab-grown meat contains some outside substances added to facilitate growth does not, by itself, mean such meat should be seen as different from meat from livestock also given outside substances. While the FDA has regulated genetically modified animals in the field of drug research and other nonfood purposes, it has explicitly stated that it, “does not expect to exercise enforcement discretion for animal species traditionally consumed as food.” Food & Drug Admin., Regulation of Genetically Engineered Animals (Jan. 15, 2009). It begs consideration that the same rationale used for farm-grown meat could be applicable to lab-grown meat grown for human consumption.

There are several advantages in having the USDA regulate lab-grown meat. First, the labeling and terminology could be closer to traditional meat products, thereby making the average consumer feel more comfortable with the product. Second, it would fall under the same inspection regime as traditional meat, forcing it to meet regular inspection requirements before hitting the shelves. Finally, USDA regulations would not treat lab-grown meat as an additive that must be proven safe whenever a new variety comes out.

Nexus to Genetically Modified Organisms

The current trends and public opinion regarding genetically modified organisms (GMOs) demonstrate that, regardless of studies and routine availability, many people are suspicious of modern technology being infused into our food. On the other hand, the increase in the popularity of plant-based milk products, such as almond milk, prove that the right marketing and regulation can make a huge difference in the public’s attitude toward new food products.

Even though the vast majority of scientists think GMOs are safe, close to 60 percent of Americans believe that they are unsafe. Roberto A. Ferdman, Why We’re So Scared of GMOs, According to Someone Who Has Studied Them since the Start, Wash. Post Wonkblog, July 6, 2015. The example of GMOs shows that people are often skeptical when technology and food mix in ways that appear unnatural. GMOs are helped by the fact that they are not subject to labeling and are often just part of the ingredient list, not the food itself. But the controversy shows why the introduction and packaging of lab-grown meat will be very important. Unlike GMOs, lab-grown meat will likely not have the advantage of being hidden as an unlabeled ingredient.

Plant-based milks show how proximity and look can make a huge difference in the acceptance of a food product that is new to the public consciousness. When soy milk first appeared in the market, plant-based milks were considered a niche product for vegans in health food stores. Today, plant-based milks are available in nearly every grocery store. The popularity of the drink began to soar when it was placed in the dairy aisle in cartons that looked like the packaging associated with traditional cow’s milk. John Urquhart, Soy Milk Moves into Mainstream, Landing on Supermarket Shelves, Wall Street J., Aug. 3, 1999, at B1. Plant-based milks are now thought of in the same manner as traditional milk by many consumers, and its sales doubled worldwide between 2009 and 2015. Lindsay Whipp & Scheherazade Daneshkhu, Big Business Identifies Appetite for Plant-based Milk, Fin. Times, July 15, 2016, at 20. This fight has already been brought to lab-grown meat when the National Cattlemen’s Beef Association filed a petition with the USDA to prevent it from being labeled meat. Petition for the Imposition of Beef and Meat Labeling Requirements: To Exclude Products Not Derived Directly from Animals Raised and Slaughtered from the Definition of “Beef” and “Meat,” available at www.uscattlemen.org/Templates/pdfs_USCA/2018-PDFs/2-9-18USCA-AMS-Petition-re- definition-of-beef-and-meat.pdf.

If the USDA inspects and improves labeling, lab-grown meat is more likely to appear to the consumer as being a legitimate alternative that is like traditional meat sources. This would give lab-grown meat a greater opportunity to occupy market share. Further, the USDA could include familiar labeling associated with meat. Currently, lab-grown meat would not be eligible for other designations such as “choice” and “prime” because those designations are based on grading an entire carcass, not individual cuts. However, the USDA could change the regulatory qualification with simple notice-and-comment rulemaking. It is already under pressure to do so because the current criteria are not well-situated for grass-fed beef. Additionally, the USDA creates the regulations that define most common meats. Thus, it is in the best position to label the lab-grown meat in a manner consistent with familiar terminology. For example, it could add lab-grown hamburger to the definition of miscellaneous beef products.

The USDA inspection regime is mandatory and is much better funded than FDA inspections. This could be beneficial because it will ensure that lab-grown meat is handled and stored properly before sale. Early publicity of lab-grown meat making somebody sick would harm the chances of it making a dent in meat sales. Additionally, like most new products, lab-grown meat will probably be more expensive than traditional meat when it first reaches the consumer market. This may provide incentives to unscrupulous farmers who want to pass off their meat as lab-grown to tap into what will likely begin as a more niche, expensive market. A traditional farmer may also be tempted to pass his meat off as lab-grown to avoid taking his livestock to a USDA-certified slaughterhouse that could be very far away and inconvenient. Having USDA inspectors certify both lab-grown meat and traditional meat products would make the inspectors more aware of both industries and be more skilled at detecting fraud.

It will be a few more years before anyone can pick up a lab-grown burger for dinner at the grocery, but the day is fast approaching. Regulators need to be ready to bring lab-grown meat into the fold and onto the shelves. As the population continues to expand along with the world’s taste for meat, many approaches will need to be taken to conserve land, air, water, and public health. Lab-grown meat could help ease the burden, and the USDA is in the best position to help it do so.

    Entity:
    Topic:

    Scott Schulman

    Mr. Schulman is a legal fellow at Public Employees for Environmental Responsibility in Silver Spring, Maryland. He may be reached at sschulman99@gmail.com.