Fifth Circuit weighs Texas ban on cultivated meat sales

By Sophie Lindqvist

Texas’s cultivated-meat ban remains in force until Sept. 1, 2027, after a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit took Wildtype v. Shuford under advisement at a Wednesday hearing in November 2026.

Why are Wildtype and UPSIDE challenging SB 261?

Wildtype and UPSIDE Foods are California startups. Wildtype produces cultivated salmon, while UPSIDE produces cultivated chicken. Both companies grow animal stem cells into edible tissue. Both products have received federal clearance to sell nationwide.

Texas Senate Bill 261 prohibits the sale of “cell-cultured protein” in the state until Sept. 1, 2027, and a federal district court refused to block the law in January 2026. The companies say it shields the Texas cattle industry from out-of-state competition and causes irreparable harm (injury that money cannot adequately repair).

Institute for Justice attorney Marco Vasquez Jr., representing the companies, said: “We have our lost revenue, our lost business opportunities, our lost goodwill and our lost time in the market.”

The companies invoke the dormant Commerce Clause (the constitutional rule against state discrimination against or undue burdens on interstate commerce). They also argue that the Poultry Products Inspection Act preempts (overrides) the state ban.

Vasquez said the bill’s sponsor described its goal as protecting the state’s agriculture industry. He also cited the law’s statement of intent, which described support for traditional agriculture. Vasquez argued that appearing neutral does not resolve the constitutional inquiry when a law’s purpose and practical effect cut off an entirely out-of-state industry.

How does Texas defend the ban?

Texas Assistant Solicitor General Douglass Duncan countered that the statute treats in-state and out-of-state companies identically. He said a blanket prohibition cannot amount to economic protectionism (state law favoring local industry over outside competitors).

“SB 261 is no different from the law in [another] case that this court upheld that banned the sale of horse meat in Texas,” Duncan said. He added that the blanket rule treats in-state and out-of-state sellers alike and therefore cannot count as economic protectionism.

Can the Fifth Circuit decide the case now?

The judges pressed both sides on whether the record (the evidence developed in the trial court) permits the appeals court to decide the discrimination issue itself. The alternative was a remand (a return to federal court) to develop the record further.

Duncan noted that the CEO of an Austin-based cultivated-meat company testified against the bill at legislative hearings. He reasoned that if a statute threatens to put an in-state company out of business, it cannot discriminate against out-of-state companies.

Duncan also argued that cultivated-meat companies are not similarly situated (comparable enough for the same rule to apply) to traditional meat producers. Cultivated products mainly attract consumers who avoid conventional meat for ethical or environmental reasons. He cited testimony that UPSIDE’s chicken sells for $200 per pound.

He said the record contains no basis for concluding that the products or the businesses are similarly situated. Texas described the companies’ sales as minimal. Wildtype has one restaurant relationship in Texas. UPSIDE made a single sale to one resident more than two years ago.

Duncan argued that any harm is speculative and outweighed by Texas’s interest in protecting residents from imperfectly understood risks. The panel questioned the weight of legislative statements about protecting agriculture against statements about potential long-term health risks from a novel product.

Duncan described the two-year sunset (expiration) as a reasonable pause to allow further study. Vasquez responded that Texas has produced no evidence of health risks. He added that federal regulators had already reviewed the companies’ safety data.

What changes while the appeal proceeds?

The panel consisted of U.S. Circuit Judges Don R. Willett, Andrew S. Oldham and Cory T. Wilson. Donald Trump appointed all three. The judges took the case under advisement. They set no decision date. The ban remains in effect during the appeal.

For practitioners, Texas sellers cannot lawfully sell cultivated salmon or chicken while SB 261 operates, despite nationwide federal clearance. The companies must keep both products out of Texas sales channels during the appeal. The ruling will decide whether Texas can enforce the blanket ban under the dormant Commerce Clause and federal preemption.