Wildtype and UPSIDE Foods ask appeals court to halt Texas cultivated meat ban

Wildtype and UPSIDE Foods have asked a federal appeals court to block enforcement of Texas’s cultivated meat sales ban while their constitutional challenge proceeds, arguing that a lower court wrongly refused to grant temporary relief.

• Wildtype and UPSIDE Foods challenged the denial of temporary relief.
• Texas defended its ban on health and safety grounds.
• Judges questioned arguments about interstate commerce and commercial harm.

A three-judge panel of the US Court of Appeals for the Fifth Circuit heard arguments on November 4. The appeal follows US District Judge Alan Albright’s decision to allow the companies’ Commerce Clause challenge to continue while denying a preliminary injunction that would have permitted sales during the litigation.

The companies argued that Albright should have assessed their likelihood of succeeding on the constitutional claim before rejecting their request. Texas defended both the law and the conclusion that the companies had not demonstrated irreparable harm.

The hearing concerned whether the ban should be suspended during the case, rather than a final determination of whether the law is constitutional.

Texas’s Senate Bill 261 took effect on September 1, 2025. It prohibits offering for sale or selling cell-cultured protein for human consumption, with the sales prohibition scheduled to expire on September 1, 2027.

Wildtype produces cultivated salmon, while UPSIDE Foods produces cultivated chicken. Both California-based companies had completed the federal regulatory processes required to bring their respective products to market before challenging the Texas restriction.

Their central argument is that the ban protects conventional agriculture from out-of-state competition, violating constitutional limits on states’ ability to interfere with interstate commerce.

The companies have pointed to statements from Texas officials celebrating protection of the conventional meat industry. Texas Agriculture Commissioner Sid Miller said after the legislation passed that the state needed to safeguard its meat industry from competing alternatives.

Texas argued that such statements did not establish the legislature’s purpose, maintaining that the restriction was intended to address health and safety concerns.

According to reporting by the Austin American-Statesman, Marco Vasquez, an attorney representing Wildtype and UPSIDE Foods, challenged the evidence supporting that position during the hearing.

“They say health and safety, but they don’t give this court anything. And that’s not just because Texas has dropped the ball. It’s because there’s nothing to provide,” Vasquez said.

He pointed to the scientific information the companies had submitted to federal regulators before receiving authorization to sell their products.

Texas countered that federal review did not resolve its concerns about possible long-term effects of consumption. State attorney D. Bowie Duncan questioned how far the federal assessment extended.

“My understanding of the federal approval is that it’s more like this cultivated meat isn’t more likely to be contaminated than comparable sources of meat,” Duncan said in response to questions.

The panel comprised Judges Don R. Willett, Andrew S. Oldham and Cory T. Wilson. Questions from the bench included whether the law discriminated against interstate commerce when its prohibition also applied to any Texas-based company producing the same type of food.

The companies’ response was that the businesses federally authorized to sell cultivated meat were located outside Texas. The dispute therefore involved both the law’s wording and its practical effect on the market.

Commercial harm was another contested issue. Wildtype had supplied its salmon to one Texas restaurant before the ban, while Texas argued that UPSIDE Foods had demonstrated a sale to only one individual in Travis County.

State attorneys said that limited activity did not establish the irreparable injury necessary to justify an injunction. They also challenged Wildtype’s decision to enter Texas after the legislation had been signed but before it became effective.

“Indeed, Wildtype seems to have entered the market when it did (after S.B. 261 was signed into law, but before it went into effect) merely for the sake of challenging the law,” Texas argued in its appellate brief, as reported by the American-Statesman.

Duncan described the alleged harm as a “self-inflicted injury”.

The companies’ opening appeal brief argued that the lower court had applied the wrong legal standard and that they were suffering economic and constitutional injuries. Their challenge seeks access to the Texas market while the underlying lawsuit continues.

Albright’s refusal to dismiss the Commerce Clause claim kept that challenge alive, but did not establish that the companies would ultimately prevail. The November 4 hearing ended without a ruling from the panel, leaving the sales ban in place.

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