Sea-less seafood: How intellectual property law can help to create a sustainable blue economy

Lab-grown food is no longer a science fiction tale. Latest estimates forecast that animal cell-cultivation technology meats (cell-based meats) will become available for sale directly to consumers before the end of this year.

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.

With increasing global demand for such products and ocean ecosystems continuously at risk, transition to a sustainable blue economy will require a major shift reconciling environmental protection with a healthy global economy. An appropriate legal framework could prove helpful here. Transformation of the global food supply chain will require considerable financial investment, but also effective regulation of emerging technologies, if consumption of such foods is to achieve a measurable impact.

Recent regulatory activity on cell-based meats and strategic trademark litigation indicates that labelling of such ‘seafood’ is likely to become contentious, as the established multimillion-dollar fish industry seeks judicial redress for loss of market share.

A reflective litigation strategy would mitigate these legal risks. In turn, responsive regulatory approaches to emerging biotechnologies will consider 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 can be labelled bears significant implications for market access and, ultimately, the ability of these novel foods to generate societal benefits.

Cell-based seafood is produced by tissue and bioprocess engineering - resulting in a product molecularly identical to ‘conventional’ seafood. Applications for such technology are numerous and range from livestock to poultry and fish. Pioneering the regulatory pathway for cell-based foods, Singapore was the first influence worldwide to approve the sale and commercialisation of cell-based chicken in December 2020. In Australia and New Zealand, Food Standards is aware of industry developments, yet it has not been approached by a business operator seeking regulatory approval.

From an intellectual property (IP) law perspective, there are several legal implications of cell-based seafood labelling. At a 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. At an international level, special regulatory requirements can still be adopted, even if they limit 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.

This discussion is timely, because trademarks are often portrayed as incompatible with the pursue of certain public policy imperatives, and contentious, in that they could restrain public regulators from adopting measures aimed at, for example, the transition towards a sustainable blue economy, creating a ‘regulatory chill’.

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 in averting pressing social challenges will be determined, to a large extent, by consumer perception. While a few competing narratives have emerged in the legal discourse on cell-based meats, it is yet to be seen whether they will command the view of the majority about what is legally understood as ‘meat’.

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. What the law considers as ‘food’ matters for the urgent transformation needed in our global food supply chain.

The emergent tendency for de-globalisation 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 ‘natural’ foods with their cell-based equivalents certainly merits further academic research.