We really cannot say whether chicken by any other name would smell as sweet or even as chickeny.  While we do not compare ourselves to the Bard, we can say that cultivated chicken meat cannot be sold in Florida to allow any such olfactory comparison there.  The manufacturer of just such a product challenged the Florida law banning it in Upside Foods, Inc. v. Simpson, No. 4:24cv316-MW/MAF (N.D. Fla.).  The original complaint in Upside actually raised express preemption affirmatively, contending that the Florida law ran afoul—afowl?—of the federal Poultry Product Inspection Act (“PPIA”).  The court balked—bawked?—at that in denying plaintiff’s motion for summary judgment last fall, both on lack of standing and lack of likelihood of success on the merits.  2024 WL 5274483 (N.D. Fla. Oct. 11, 2024).  Following that decision, the plaintiff amended its complaint to assert claims under § 1983 and the court’s inherent equitable powers.  The defendants moved to dismiss, which resulted in a decision with a few nuggets that we think may have implications for the drug and device cases typically on our plate.  (We will stop with the pathetic poultry puns now.) [Note: this case now has a non-slip opinion citation, 2025 U.S. Dist. Lexis 85699].

Although the defendants did not challenge plaintiff’s standing to raise the claims in the amended complaint, the Upside court addressed standing sua sponte and found plaintiff had standing, in part because it “plausibly alleged that it would be subject to a ‘real and immediate threat of criminal enforcement’ for arguably engaging in ‘solicitation’ to violate Florida’s cultivated meat ban.”  Slip op. at 6.  We will not say much about that issue given that we have discussed standing plenty in connection with a different animal and even a monster puppet.  Suffice it to say that there are various challenges to state laws and actions directed at FDA-approved drugs that are percolating through the courts where the plaintiffs’ claimed standing looks a lot like in Upside.

The next issue in Upside was like double preemption.  To challenge a state law as being preempted, the plaintiff has to have a “proper cause of action to proceed in federal court.”  Slip op. at 8.  Claims cannot be brought under § 1983 if they have been specifically foreclosed by statute or impliedly foreclosed “by creating a comprehensive enforcement scheme that is incompatible with individual enforcement.”  Id. at 9 (citation omitted).  That sounds similar to looking at express and implied preemption, and, sure enough, the PPIA does have a provision that vests the U.S. with sole authority to enforce the act or restrain violations of it.  Id. at 10-11.  Upside even cited Buckman’s interpretation of equivalent language in the FDCA as precluding causes of actions by private litigants.  So, § 1983 was unavailable to the plaintiff to assert that the PPIA preempted Florida’s ban on cultivated meat.

Buckman also got some air play in Upside’s analysis of whether a call to the court’s equitable powers could get around the statutory grant of exclusive authority to the U.S. to enforce the PPIA.  “Plaintiff cannot circumvent the congressional foreclosure of private enforcement of the PPIA by attempting to invoke this Court’s equitable powers.”  Id. at 13-14 (citation omitted).  We do not often see product liability plaintiffs asserting claims in equity to try to sidestep Buckman, but we would expect a similar result if they did.

Next, Upside analyzed whether the state law imposed any requirements on the plaintiff, a putative seller in Florida with USDA’s stamp of approval of its facility as a PPIA-compliant establishment in hand.  Much like tasting “food produced from cultured animal cells,” we will decline for now to dive right into the, well, meat of that analysis.  Basically, the court found that the Florida law did not impose any requirements that led to express preemption based on the PPIA. 

That was not the end of it, though, as plaintiff also asserted that the Florida ban violated the dormant Commerce Clause, on which we have also spilled some cyber-ink.  Although the Florida statute is facially neutral as to the location of any wannabe seller of cultivated meat, the plaintiff is based in California and, apparently, all manufacturers of cultivated meats are outside of Florida.  Those facts allowed the plaintiff to argue that the law “discriminates in effect against the out-of-state cultivated meat industry to the benefit [of] Florida’s conventional meat industry.”  Id. at 21.  If this reminds you of the winning argument in McDermott v. Wisconsin, 228 U.S. 115 (1913), then you might need a new hobby or you really like the Blog.  The plaintiff in Upside had the advantage that Florida officials had described the purpose of the ban as protecting Florida’s domestic conventional meat and agricultural producers.  At the motion to dismiss stage, the court had enough to let the dormant Commerce Clause claim survive.  Slip op. at 24-25.  For us, we continue to wonder if a challenge to a state law or action that limits the availability of a particular FDA regulated product, or class of FDA regulated products, could make similar use of the dormant Commerce Clause.  It is certainly plausible that all companies that make a certain targeted drug would be from somewhere other than the state that seeks to ban the use of the drug within its territorial limits.  However, there may not be a record of state officials supporting a discriminatory intent or an in-state market that would benefit from removing out of state competition.  Then again, there may be no downside to trying Upside to make the dormant Commerce Clause argument.