Food and Beverage News and Trends

This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.

• USDA reaches out to farmers for climate-friendly standards for food and beverages. As consumers show more interest in purchasing food and beverage products that are climate-friendly, and even a willingness to pay a premium for them, the USDA is taking steps to standardize marketing claims based on climate friendliness. Secretary of Agriculture Tom Vilsack brought up the issue at a conference on December 1. Vilsack said that products claiming to be climate-friendly are popping up more and more on store shelves – but there are currently no standards defining “climate-friendly,” making it hard for consumers to evaluate the veracity of such claims. Vilsack said the department has reached out to farmers, ranchers and producers and asked them what they can do to facilitate the adoption of climate-smart practices. The ultimate goal of this process, Vilsack said, will be a workable standard for what a climate-smart agricultural practice actually is, as well as a basis for evaluating marketing claims.
• FDA announces new plan to improve its handling of food-borne illness. On December 9, the FDA announced a new strategy aiming to enhance its response to outbreaks of food-borne illness. The agency said it was confident that the plan would soon translate into specific FDA activities to improve prevention of such outbreaks. The plan draws on an independent outside review of the agency’s capacity to support, participate in, and lead multistate outbreak investigations, with the ultimate objective being to “bend the curve of foodborne illness.” Among the top goals of the plan is to find better ways to digitize and receive the information necessary to streamline the traceback process - the steps the agency takes during investigations to pinpoint the source of contaminated foods.
• USDA faces pressure from the Hill to exclude Brazilian beef. Lawmakers in both parties are calling on the Biden Administration to immediately prohibit all Brazilian beef from entering the United States after Brazil allegedly delayed reporting two incidents of bovine spongiform encephalitis (BSE), commonly nicknamed mad cow disease. The USDA is taking the view that there is no reason for this drastic step. US cattle producers have long sought to exclude Brazilian beef, and in November the National Cattlemen’s Beef Association urged US Agriculture Secretary Tom Vilsack to immediately suspend fresh beef imports from Brazil. On December 6, Politico reported that Senators Jon Tester (D-MT) and John Thune (R-ND) are pressing the agency to do so. Senator Tester said, “Folks expect their beef to have been rigorously tested against the strictest of standards….We owe it to our domestic producers and consumers to halt Brazilian imports until we can guarantee their beef and reporting standards are making the grade.” The USDA, however, takes the view that the two Brazilian cases of BSE don’t constitute a risk to US consumers and that any exclusionary actions the US takes now would ultimately hurt the US beef industry by prompting other nations to exclude US beef.
• Statutory deadline to label bioengineered foods is January 1, but supply-chain woes are complicating things. Food Navigator magazine reported on December 9 that the statutory deadline of January 1, 2022, for the labeling of bioengineered foods is almost upon us, but many consumer-product companies are still struggling with their compliance efforts. One reason is that many suppliers are not yet up to speed. More specifically, many suppliers have not informed food companies yet whether the ingredients they provide are bioengineered, or have not provided the required documentation. Another reason is disruption: for instance, some companies may have all the information they need but are finding it hard to get new labels printed in time. An industry representative said that most manufacturers will likely be in compliance by the deadline, but “the supply chain is causing unusual stress to the system, and depending on the day, depending on the issue, we may have a problem.”
• Nonprofits sue FDA to take action against phthalates in food. A coalition of nonprofit groups filed a federal lawsuit against the FDA on December 7, asking an appeals court to order the agency to act on petitions the groups had filed in 2016 which called for a ban on phthalates in food-packaging and processing materials. The groups said in the lawsuit that phthalates are endocrine-disrupting chemicals which interfere with hormone-regulated processes in the body and are linked to birth defects, infertility, miscarriage, reduced IQ, and attention and behavior disorders in children. The lawsuit, filed in the US Court of Appeals for the DC Circuit, also states that despite decades of scientific studies linking phthalates to serious and irreversible health harms, the FDA has continued to allow the use of more than two dozen phthalates in food packaging and processing materials. Phthalates leach out of these materials, the lawsuit said, into infant formula, milk, cheese, meat, baked goods, cereals, snack foods, boxed macaroni and cheese, cooking oils, and other food products.
• How many cups? On November 23, a consumer filed a proposed class action against the Folger Coffee Company on the grounds that a user can’t actually make as much coffee from a Folger canister as is suggested on the label. “This case involves a straightforward and systematic course of false, misleading, and unlawful conduct: Defendants have grossly misrepresented the number of cups of coffee that the Products can make,” the complaint says. Folger’s is now owned by the J.M. Smucker Company, which was also named as a defendant in the case. The complaint points to various sizes of Folger’s coffee as sold in supermarkets. For example, it says that a 30.5-oz. canister is described on the label as making up to 240 cups or servings, while according to a well-known standard for making brewed coffee, the canister makes no more than 173 cups. The complaint was filed in the US District Court for the Western District of New York.
• Study shows effects of Seattle’s tax on sugary beverages. Two years ago, Seattle introduced a tax on sugar-sweetened beverages. Now, a just-published study indicates that the 1.75-cent per ounce tax has significantly curbed sales of soda, juice, and other sugar-sweetened drinks in that city. The study was published by researchers at the University of Illinois in Chicago and appears in the December 2021 issue of the Journal of Public Health Policy. The study found that there was a net reduction of 19 percent in the sale of grams of sugar from the beverages affected by the tax. The study also found that the reduction occurred even after taking into account the possibility of cross-border shopping and the possibility that shoppers substituted a non-taxed sugary item for one that is taxed.