Lawyers from Institute for Justice representing cultivated poultry maker Upside Foods on Tuesday asked the 11th Circuit Court of Appeals to reverse a lower court’s decision and allow the challenge of Florida’s ban on cultivated meat products to proceed.

Instead, the three-judge appellate panel seemed to double down on the lower court’s decision, rejecting Upside’s claims.

Upside Foods sued the Florida Department of Agriculture and Consumer Services in 2023 after the state legislature passed SB1084, prohibiting the sale, manufacturing and distribution cultivated meat products.

The company has argued that the US Constitution’s Commerce Clause restricts the state from imposing limits on interstate trade. Only the federal government, the lawyers say, can regulate poultry products.

Lawyers for the state of Florida argued that Upside Foods has not been prosecuted under the law, and as such, does not have cause for an injunction against the ban.

A judge representing the Northern District of Florida in October 2024 denied the company’s request for a preliminary injunction to halt the enforcement of Florida’s ban. Upside appealed the decision.

The Northern District judge earlier this year dismissed most of UPSIDE Foods’ claims, granting only the Commerce Clause claim and allowing the case to move forward only on the argument that Florida’s law discriminates against out-of-state competition.

During arguments on Tuesday, the judges asked driving questions about the origin of cultivated meat, indicating a belief that the product may not be covered by the federal Poultry Products Inspection Act because it is not conventional chicken.

Furthermore, the judges indicated that the court was grappling with whether the argument merited the questions at all. “You don’t have the right to bring this because the government has the exclusive right to bring cases with regard to the violations of the [Poultry Products Inspection Act] or to enforce the act,” US District Judge Paul Huck reportedly told attorneys.

Upside in 2023 gained approval from the FDA and the USDA to distribute its cultivated chicken product throughout the United States. Only four other companies — GOOD Meat, Mission Barns, Wildtype and Believer Meats — have received such an approval in the US.

Meanwhile, Florida’s state-wide ban on the manufacture and sale of cultivated meat was swiftly followed by similar bans in Alabama, Mississippi, Montana, Nebraska and Texas.