In December 2024, a California startup wanted to serve Art Basel’s Miami crowd chicken that had never belonged to a living bird.  Upside Foods grows its product from banked chicken cells in a cultivator, and by then the company had already cleared FDA consultation and earned a USDA grant of inspection.[i]  Five months earlier, Florida made it a second-degree misdemeanor to “manufacture for sale, sell, hold or offer for sale, or distribute cultivated meat in this state,” and a restaurant that serves it risks its permit and fines of up to $5,000 per violation.[ii]  In March 2026, the Eleventh Circuit affirmed the denial of a preliminary injunction, leaving the ban in place.[iii]

For animal protection advocates, this loss is significant for two reasons.  After all, cultivated meat could reduce animal slaughter without requiring consumers to stop eating chicken.  Yet, some of the very legal precedents animal-rights advocates fought for are what let Florida enact its ban.  The same doctrine that upheld California’s foie gras and pork-welfare laws—letting a state keep a disfavored product out of its market—now protects Florida’s power to do the same to a product advocates want sold there.  Although the Eleventh Circuit went on to reject Upside’s statutory preemption arguments, a separate constitutional claim survives.  The remaining question is whether the reason behind a state ban matters under the dormant Commerce Clause—the constitutional principle that bars states from discriminating against interstate commerce.

Before the Eleventh Circuit, Upside argued that the Poultry Products Inspection Act (“PPIA”) preempts Florida’s law.  The Act bars states from imposing requirements “in addition to, or different than” federal ones with respect to the “premises, facilities and operations” of an official establishment, and from imposing different “ingredient requirements.”[iv]  Upside’s argument was straightforward: because the USDA had approved its chicken, Florida could not impose an outright ban that went beyond federal requirements.

Judge Brasher, writing for a unanimous panel, disagreed.  Without deciding whether lab-grown chicken is a “poultry product,” the court held that a pure product ban has no direct relationship to what happens inside a processing plant.[v]  SB 1084, Florida’s law banning cultivated meat, “does not tell Upside how to make its lab-grown chicken,” instead, it keeps the finished product out of Florida.[vi]  The court also rejected the argument that the law imposed an ingredient requirement.  As the court explained, a recipe book “would never list ‘chicken cells’ as an ingredient for fried chicken.”[vii]  The PPIA prevents states from adding to the federal requirements governing poultry products.  It does not require a state to allow a particular product to be sold.[viii]

The history of animal-law litigation helps explain why the Eleventh Circuit reached that result.  In National Meat Association v.  Harris, California required slaughterhouses to immediately euthanize nonambulatory animals and barred them from buying, processing, or selling those animals.  The Supreme Court unanimously held that the law was preempted by the Federal Meat Inspection Act because it reached into the slaughterhouse and dictated how animals had to be handled there.[ix]  The case demonstrated the difficulty of regulating the production process at a federally inspected facility.

Animal advocates subsequently had more success with laws aimed at the finished product rather than the production process.  California’s foie gras law, for example, does not tell any producers how to feed a duck.  Instead, it prohibits the sale of products made through force-feeding, and the Ninth Circuit upheld the law after concluding that the PPIA’s ingredient provision covered a product’s physical components, “not the way the animals are raised.”[x]

Proposition 12, the California ballot measure setting confinement standards for farm animals, followed a similar approach.  The law does not require out-of-state producers to change their practices, but it prohibits the sale in California of pork from the offspring of female pigs kept in certain conditions.[xi]  In National Pork Producers Council v. Ross, the Supreme Court rejected a dormant Commerce Clause challenge, declining to invalidate the law merely because its burdens fell on out-of-state producers.[xii]

That history mattered in Upside Foods, where the Eleventh Circuit lined up the Fifth and Seventh Circuit horsemeat cases alongside the foie gras case.[xiii]  It also distinguished Harris based on the same distinction that had allowed the later animal-protection laws to survive: California had allowed the end product but attempted to regulate what happened inside the facility, while Florida “bans an end product” without regulating how it is produced.[xiv]  The court even suggested that the analysis might be different if Florida had regulated cell-harvesting methods, cultivator materials, or waste disposal.[xv]  In other words, the same distinction that helped animal advocates defend product bans now makes it easier for Florida to defend its cultivated-meat ban.

The remaining constitutional issue may provide a different path.  When the district court narrowed Upside’s case, it dismissed both preemption theories but allowed the dormant Commerce Clause claim to remain.[xvi]  That claim asks a different question: whether Florida’s law discriminates against interstate commerce and, if so, whether Florida can justify that discrimination.

The dormant Commerce Clause generally prevents states from discriminating against interstate commerce.  A facially neutral law can also violate the doctrine if it discriminates in practical effect, although a state may defend such a law by showing that it serves a legitimate local interest that could not be achieved through nondiscriminatory alternatives.[xvii]  In Ross, Proposition 12 survived because it applied the same rule to pork produced in California and pork produced in Iowa.  The opponents argued that the law’s practical burdens fell on out-of-state producers, but the Court held that this was not enough to establish discrimination.[xviii]

SB 1084 is harder to defend because its legislative record shows why lawmakers passed it.  The Eleventh Circuit’s opinion in Upside Foods notes that lawmakers supporting the bill discussed the threat that lab-grown meat posed to Florida’s commercial agriculture industry.[xix]  Courts have treated protectionist statements in legislative records as evidence of an impermissible purpose.[xx]  Unlike the opponents in Ross, Upside can point to that legislative history as evidence of a protectionist purpose.

There is still a significant weakness in this argument.  In Exxon Corp. v.  Governor of Maryland, the Supreme Court upheld a law preventing petroleum refiners from operating retail gas stations even though the refiners were all out-of-state companies.  The Court explained that the fact that a law’s burdens happen to fall on interstate firms does not necessarily establish discrimination.[xxi]  Here, no cultivated meat company currently manufactures its product in Florida, and SB 1084 would apply equally to a Florida company that tries to do so.  Upside must therefore convince the court that cultivated and conventional chicken compete in the same market and are “similarly situated” under General Motors Corp. v.  Tracy.[xxii]  That legislative history helps Upside show an improper purpose, but it does not resolve this harder question of market competition, leaving the Commerce Clause claim a tougher fight than the legislative history alone might suggest.

More broadly, seven states now ban cultivated meat and more may follow.[xxiii]  Whatever happens with the remaining Commerce Clause claim, the Eleventh Circuit will likely face this preemption question again, and animal advocates should be careful what they ask for next.  Expanding the current doctrine any further would only hand states a sharper tool for excluding products advocates want on the market, built from the same animal-protection cases that forged it.  The line that should matter is not between popular and unpopular animal products, but between regulating how something is produced and banning what it is.

The stronger argument for animal advocates is that states should be free to restrict a product for a legitimate reason—animal welfare, public health—but not simply to shield an industry from competition.  Proposition 12 passed because California voters cared about how pigs are treated; SB 1084 passed, at least in part, because Florida lawmakers worried about losing agricultural market share to a new technology.  If courts keep treating those two motives as legally indistinguishable, the precedents animal advocates built will keep handing states a blueprint for keeping cultivated meat off the menu.

[i] Upside Foods, Inc. v. Comm’r, Fla. Dep’t of Agric. & Consumer Servs., 171 F.4th 1239, 1244–45 (11th Cir. 2026).

[ii] Fla. Stat. § 500.452(1)–(2) (2026); id.  §§ 500.121(1)(b), 570.971(1)(b) (permit revocation and fines up to $5,000 per violation); see also Upside Foods, 171 F.4th at 1245.

[iii] Upside Foods, 171 F.4th at 1243, 1257.

[iv] 21 U.S.C. § 467e.

[v] Upside Foods, 171 F.4th at 1253–54.

[vi] Id. at 1256.

[vii] Id. at 1257.

[viii] See id. at 1257.

[ix] Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 458–60, 464 (2012).

[x] Cal. Health & Safety Code § 25982 (2026); Ass’n des Éleveurs de Canards et d’Oies du Québec v. Becerra, 870 F.3d 1140, 1147 (9th Cir. 2017).

[xi] See Cal. Health & Safety Code § 25990(b) (2026).

[xii] See Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 370–71, 376 (2023).

[xiii] See Upside Foods, 171 F.4th at 1255, 1257.

[xiv] Id. at 1256.

[xv] Id.

[xvi] Id. at 1246 (noting that the district court “dismissed Upside’s preemption claims, maintaining only its dormant Commerce Clause claim”).

[xvii] Maine v. Taylor, 477 U.S. 131, 138 (1986).

[xviii] See Ross, 598 U.S. at 371.

[xix] Upside Foods, 171 F.4th at 1245.

[xx] See, e.g., Bacchus Imps., Ltd. v. Dias, 468 U.S. 263, 270–71 (1984).

[xxi] Exxon Corp. v. Governor of Md., 437 U.S. 117, 125–26 (1978).

[xxii] See GMC v. Tracy, 519 U.S. 278, 298–99 (1997).

[xxiii] See Nat’l Agric. L. Ctr., Alternative Proteins: 2025 Litigation Update, https://nationalaglawcenter.org/alternative-proteins-2025-litigation-update/ [https://perma.cc/KUA7-C3F8] (last visited Oct. 9, 2026).