Seafood without the Sea: Trademarks, Art. 20 TRIPS and How Animal Cell-Cultivation Technology Can Promote Sustainable Fisheries

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In this post, Dr Mariela de Amstalden discusses the prospects of regulation of lab-grown food and related matters of trademark litigation

 

Dr Mariela de Amstalden

Dr Mariela de Amstalden, Birmingham Law School

 

Emerging Food Biotechnologies and the Sustainable Blue Economy

Lab-grown food is no longer a science fiction tale. Latest estimations forecast that animal cell-cultivation technology meats (cell-based meats) will become available for sale directly to consumers as early as 2022. For seafood in particular, advances in the field of cellular aquaculture have the potential to provide a unique market-based solution to promote sustainable fisheries, while addressing challenges associated with climate change, public health and animal welfare. I discuss some of the legal implications of this new technology in my latest paper ‘Seafood Without the Sea: Trademarks, Article 20 TRIPS and How Animal Cell-Cultivation Technology Can Promote Sustainable Fisheries’ (2022) 3 Journal of World Trade and Investment (Brill, forthcoming).

With increasing global demand for such products and ocean ecosystems continuously at risk, the transition to a sustainable blue economy that is socially equitable, environmentally sustainable and economically viable will require a paradigm shift that reconciles environmental protection with a healthy global economy. An appropriate legal framework could prove helpful here. The transformation of the global food supply chain will require considerable financial investment, but also effective regulation of emerging technologies, if the consumption of foods based on cell-cultivation is to achieve a measurable impact.

The Law of Lab-Grown Food: On the Merits of Regulating Innovation

Looking at recent regulatory activity on cell-based meats and selected strategic trademark litigation as pulse indicators,  the labelling of seafood produced using animal cell-cultivation technology is likely to become contentious, with the established multimillion-dollar fish industry trying to find judicial redress for loss of market share. To mitigate these legal risks, a reflective litigation strategy will identify and include the protection of trademark rights. In turn, responsive regulatory approaches to emerging biotechnologies will take into account potential limitations to the exercise of those rights conferred to trademark owners. Because labelling through trademarks is key to product differentiation, how cell-based seafood will be allowed to call itself bears significant implications for market access and, ultimately, the ability of these novel foods to generate societal benefits.

In essence, cell-based seafood is produced by tissue and bioprocess engineering that result in a product that is molecularly identical to ‘conventional’ seafood. The applications for animal cell-cultivated technology are numerous and range from livestock to poultry and fish. Pioneering the regulatory pathway for cell-based foods, Singapore was the first jurisdiction worldwide to approve the sale and commercialisation of cell-based chicken in December 2020. Other jurisdictions are expected to follow suit shortly. In the United States (US), the US Department of Agriculture (USDA) has recently solicited comments and information regarding the labelling of cell-based meat and poultry products to inform future regulation.[1] In Australia and New Zealand, Food Standards is aware of industry developments, yet it has not been approach by a business operator seeking regulatory approval.

Through an intellectual property (IP) law perspective, I examine some of the legal implications of cell-based seafood labelling. The main hypothesis I posit within this context is twofold: (1) at the domestic level, food labels that include terms with a defined legal meaning in national regulation should be used with caution in registered trademarks, as they present higher litigation risks, and (2) at the international level, special regulatory requirements can still be adopted, even if they encumber on the ability of trademark rights’ owners to exercise those rights, to the extent that the regulation’s ultimate aim is to address exceptionally grave global problems, like climate change mitigation.

What do Trademarks have to do with it all?

This discussion is timely, because trademarks are often portrayed as incompatible with the pursue of certain public policy imperatives, and contentious, in that they have the potential and ability to restrain public regulators from adopting measures aimed at, for example, the transition towards a sustainable blue economy, creating a ‘regulatory chill’. Drawing lessons from WTO disputes regarding the labelling of tobacco products in Australia – Plain Packaging, my work focuses on the scarce use of Art. 20 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in international dispute resolution. I pay particular attention to Art. 20’s de novo interpretation, which reconciles the rights conferred to trademark owners to extract economic value with the right of States to pursue and attain public policy objectives and argue that trademark law should and indeed can be used as a tool to promote sustainable food consumption. I also suggest that an appropriate labelling regulatory regime for seafood products manufactured through animal cell-cultivated technology has the potential to address some of the negative externalities associated with ongoing fishing practices, such as bycatch, habitat damage and high environmental footprint of fishing vessels’ fuel usage, further emphasising the importance of smart regulatory design in anticipating potential legal risks and challenges in international (IP) fora.

The research underlying this work is not without limitations. Societies will inevitably differ in their regulatory approaches to accommodate their own set of values and morals. Arguably, the effectiveness of a legal system is directly proportional to the level of granularity with which it reflects social realities. As a result, the impact of emerging biotechnologies and the extent to which they may or may not provide an acceptable and efficient method to avert pressing social challenges will be determined, to a large extent, by consumer perception -a key concept in trademark theory. While a few competing narratives have emerged in the legal discourse surrounding cell-based meats, it is yet to be seen whether they will obtain dominance to command the view of the majority about what is legally understood as ‘meat’.

What’s in a Name? A Look Forward

It turns out, words matter. What we consider as ‘food’ matters, not only for the effectiveness of our regulatory frameworks, but also in our cultural perceptions and social ability to accept new technologies. Ultimately, what the law considers as ‘food’ matters for the urgent transformation needed in our global food supply chain, because its role is critical in concretising our interpretation of reality in the material world. The emergent tendency for de-globalization might impact the speed at which animal cell-cultivation technology products develop and scale up, the effects of which are still unknown. In particular, the ethical and cultural consequences of replacing ‘conventional’ foods with its cell-based equivalents merits further academic research.

 

 

[1] I provided advice to New Harvest, a not-for-profit focusing on advancing cellular agriculture, during the drafting of their submission to the USDA. The submission is available here:  <https://new-harvest.org/usda-comment-cultured-meat-labeling/> (last visited: 10 December 2021).

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