Cellular agriculture – an introduction

Global Publication July 2017

If you could eat a hamburger made entirely from cultured cow tissue, would you do it? Would your answer change if you knew that the burger you were eating did not come from a slaughtered cow, and required much fewer resources to produce compared to a conventional hamburger? A handful of start-ups and a couple of non-profits are betting that you, and many people like you, will still bite into that burger.

The emerging field of cellular agriculture is the latest frontier in agri-technology. According to New Harvest, a non-profit helping to advance research in this area, cellular agriculture is “the production of agricultural products from cell cultures”. These agricultural products are not limited to the beef burger mentioned above, or even to beef. There are start-ups currently working on making animal-free milk, egg whites, leather, and most ambitiously, various types of meat. While the companies focusing on meat are forecasting five to ten years before products are available to the average consumer, you may not have to wait as long to access some other products. Perfect Day, a start-up based in San Francisco, is hoping to launch their animal-free milk this year, and Modern Meadow, a Brooklyn-based business, is aiming to roll out leather samples for partners in 2017 as well.

The hotbeds of innovation in this field are found on both coasts of the US, the Netherlands, and in Israel. Significant capital is required for these companies to scale-up to a size that will allow mass production of their “cell ag” products. They have been successful in attracting initial rounds of venture capital. Modern Meadow, for example, raised US$40 million in 2016 from very seasoned investors including the investment arm of billionaire Li Ka-shing and Singapore’s sovereign wealth fund, to scale up their production of leather.

Cellular agriculture should not be confused with another frontier of agritech – plant-based meats. Plant-based meats aim to reproduce the taste and texture of conventional meat. These plant proteins aspire to more than your garden-variety veggie burger. They aim to replicate the experience of eating meat, from the sizzle of a patty on the grill to the smell of it wafting through the air. Beyond Meat, which produces a variety of plant-based meats, has achieved significant success with its Beyond Burger, dubbed the “burger that bleeds” because of the presence of a red beet extract. The plant-based Impossible Burger is also receiving rave reviews, and is being served currently at select restaurants in some US cities.

Plant-based and “clean” meat are therefore products whose time has come, or will shortly. Their presence is signalling a shift in how conventional meat producers, retailers, and customers view their sources of protein.

Many in the conventional meat industry are watching for signs that they should consider diversifying their product offerings to shift from being purveyors of slaughtered meat to being purveyors of protein regardless of its origin.

This recognition of future growth opportunities may have been behind some of the recent investments by “Big Meat”. Tyson Foods, a major producer of different meats, bought a five per cent stake in Beyond Meat, the makers of the plant-based Beyond Burger. On this side of the border, earlier this year Maple Leaf Foods bought Lightlife Foods, a leading manufacturer and brand of refrigerated plant-based protein foods in the US, for US$140 million.

Legal issues to watch for

Any new emerging technology should consider the landscape in which it operates, and consider the legal issues raised by the branding, sale, or manufacture of its products.

For companies that are active in this space, or intend to be soon, they should consider two legal issues in particular: intellectual property (IP) rights, and regulatory requirements.

Companies should make sure that the products they sell, or the methods used to make them, do not infringe the IP rights of existing rights holders. These risks can be mitigated with proper clearance searches and opinions to ensure that the manufacture, sale, or use of these innovative products will not result in a cease-and-desist letter or a lawsuit. Knowing the patent landscape in their industry can help these companies navigate the patent minefield and emerge unscathed.

Companies should also consider how they will differentiate their products from similar products in the marketplace. Branding is key to this effort, and consideration should be given to securing trademarks and domain names that are unique and distinctive of their products. More specifically, companies should avoid using trademarks that incorporate terms that have a defined meaning under food laws and regulations (unless the product actually corresponds to that definition) as the marks could be considered false, misleading or deceptive.

On the regulatory front, different countries offer different, and sometimes conflicting, regulatory regimes. The Good Food Institute, a clean meat non-profit based in the US, is working hard to document the regulatory requirements in different countries. Norton Rose Fulbright is helping them in their efforts, and we invite you to contact us if you seek regulatory approval for your product.

Companies involved in cellular agriculture are likely to bump into a number of regulatory challenges before being able to bring their products to market, as current laws and regulations were obviously not drafted with this industry in mind. For example, in Canada, all applicable definitions of “meat” and “meat products” refer to animal slaughter, which is not contemplated as part of the clean meat production process. Therefore, clean meat producers or retailers may not be able to label their products as “meat” or “meat products”. They could technically be said to fall within the definition of “simulated meat products”, an expression traditionally used to designate plant-based meat substitutes, which covers food products that do not contain “meat products” but that have the appearance of meat products. However, this characterization is far from ideal from a marketing standpoint and could generate confusion amongst consumers since clean meat contains real animal cells.

Food products derived from cellular agriculture will likely have to be approved by regulatory authorities as “novel foods” in at least some jurisdictions before they can reach consumers. Novel food applications are usually supported by extensive scientific data pertaining to various aspects of the food including nutritional composition, toxicology and allergenicity. In whatever form, the path to market for “cell ag” products is likely to require amendments to current laws and regulations, consultation and collaboration with regulatory authorities and solid scientific data to dissipate any safety concerns.

The legal barriers to market will crystallize as companies start offering their products to the average consumer. We will continue to follow developments in this field to keep you in the loop. As summer approaches, consider throwing a plant-based burger on the BBQ to get a taste of the future.

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