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.

• FDA establishes new tolerance levels for lead in juices. On April 27, the FDA issued draft tolerance levels for lead in single-strength apple juice and other single-strength juices and juice blends. The agency said its intention was to reduce the potential for adverse health effects from dietary exposure to lead. FDA Commissioner Robert Califf said, “This action to limit lead in juice represents an important step forward in advancing FDA's Closer to Zero action plan, which we are confident will have a lasting public health impact on current and future generations.” The action levels for lead are 10 parts per billion (ppb) for lead in single-strength apple juice and 20 ppb for lead in all other single-strength juice types, including juice blends that contain apple juice. Although lead is a naturally occurring element that cannot be completely removed from juices, the FDA said these steps could reduce lead exposure from juice by 50 percent.
• Canada seeks to strengthen food system through digital food hub. On April 27, Canada’s Minister of Agriculture and Agri-Food announced an investment of up to $1.9 million to aid the Canadian Food Innovation Network (CFIN) in its development of a digital food innovations hub (the Hub). The CFIN is a nonprofit organization whose mandate is to help grow Canada’s economy by promoting and fostering innovation in the food sector. The aim of the Hub is to connect players in the food sector who are interested in innovating Canada’s food system through an interactive online community. The Hub will provide 24/7 access to one-on-one mentorship for businesses as well as access to knowledge, research, and innovation resources. A key objective will be to help identify and match entrepreneurs with technical expertise and partnership to help stimulate growth and collaboration in the food innovation industry.
• US government moves against menthol in tobacco products. On April 28, the US Department of Health and Human Services announced a plan to ban menthol in cigarettes and flavored cigars. HHS noted that certain populations use these products disproportionately and that this plan would amount to “an important step to advance health equity” by reducing disparities in tobacco-related diseases. Menthol cigarettes now account for more than one-third of all cigarettes sold in the US, and the FDA said that eliminating them could prevent between 300,000 and 650,000 deaths over the next 40 years. Menthol is the only cigarette flavor that was not banned under a 2009 law that gave the FDA authority over tobacco products.
• Supplements trade group denounces proposed law that would require product listings. The Natural Products Association, which represents makers of dietary supplements, on April 28 wrote a letter to US Senators Dick Durbin (D-IL) and Mike Braun (R-IN) criticizing a bill the two senators proposed which would establish a mandatory product listing for dietary supplements sold in the United States. The group’s president and CEO, Daniel Fabricant, wrote that the Dietary Supplement Listing Act, if passed, would amount to pre-market approval by the government and would place an undue burden on dietary supplement companies. The letter said it is inherently unfair that products such as multivitamins, Vitamin D, Vitamin B, fish oil, and other products that foster good health would require a product listing while FDA-regulated foods such as vitamin-fortified orange juice would not.
• US Supreme Court declines to review lower-court ruling on ag-gag law. On April 25, the US Supreme Court declined to review a ruling of the US Court of Appeals for the Tenth Circuit that had struck down the Kansas Farm Animal and Field Crop and Research Facilities Protection Act, the state’s so-called ag-gag law, on First Amendment grounds. That law had been challenged by a coalition of animal-rights, environmental, and food-safety groups, led by the Animal Legal Defense Fund. The Kansas law was amended in 2012 to criminalize undercover investigations of animal facilities for health and animal welfare violations. The appeals court decision, which found it unconstitutional for the state to silence views that are critical of industrial animal agriculture, said the Kansas law “elevates form over substance and permits Kansas to do just what the First Amendment prohibits.” The permanent injunction against the law will stand.
• Gorton’s is accused of misleading consumers about sustainability of its tilapia. On April 21, Gorton’s of Gloucester was hit with a putative class action that accuses the company of misleading consumers by claiming on its packaging that its frozen tilapia are “sustainably sourced.” The lawsuit, filed in the US District Court for the District of Massachusetts, alleges that the company’s tilapia actually come from industrial fish farms, many of which are located in China, where the fish are raised in inhumane and environmentally destructive conditions and are given antibiotics and feed that contain a potentially harmful preservative. Gorton’s has not yet responded to the lawsuit.
• Ferrara Candy is alleged to mislead consumers about its caramels. On April 16, the Ferrara Candy Company became the target of a putative class action that alleges the company has misled consumers by advertising its Brach’s Milk Maid caramels as “Made with Real Milk” even though the candy contains no milkfat. The lawsuit alleges that consumers who see the prominent words “Made With Real Milk” and “Rich and Creamy” on the front of the package expect the product to contain more than a trace amount of milkfat. However, the complaint continues, these representations are “false, deceptive, and misleading” because the candy’s fat content comes exclusively from vegetable fat. In the complaint, the plaintiff turned to multiple dictionary definitions of caramel, each of which describes the product as containing dairy fats from milk, butter, or both. The complaint was filed in the US District Court for the Northern District of Illinois.
• Municipal zoning bylaw limiting fast-food restaurants upheld. The Supreme Court of Canada declined to hear an appeal seeking to invalidate a 2016 zoning bylaw that limits the locations where fast-food restaurants can open in a certain borough in Montreal. The industry group Restaurants Canada, and major restaurant chains, among them St-Hubert Bar-B-Q, Restaurant MacGeorge and the TDL Group, challenged a municipal bylaw that restricts, in one Montreal borough, new fast-food restaurants to a few locations. The bylaw was implemented as part of a broader public health initiative to encourage healthier habits by distancing some fast-food restaurants from schools. The bylaw was upheld by the Quebec Superior Court in 2019 and the Quebec Court of Appeal in 2021.
• New scientific article points to deficiencies in system of ensuring antibiotic-free beef. A study published April 9 in the journal Science found that a significant percentage of the beef products labeled as antibiotic-free in the US actually contain residues of antibiotics. The USDA conducts occasional testing for antibiotic residues in meat, but only a tiny percentage of animals are tested, the article said. And although USDA-approved labels give credibility to manufacturers’ claims that a product is “raised without antibiotics,” the agency does not require empirical testing to validate such claims. Furthermore, the study said, companies have every incentive to cheat the system or to limit scrutiny of their products. After presenting evidence that some beef cattle sold as “raised without antibiotics” had in fact been given antibiotics, the study proposed new policies to reform the system.
• Annual inflation of food prices in Canada reached 7.7 percent in March. According to Statistics Canada, the average inflation of food prices in Canada was 7.7 percent in March 2022 compared to March 2021. That is the highest annual rate of flood inflation in the last 13 years. Meats saw the greatest increase, with a 12.1 percent hike. Factors related to the coronavirus pandemic, such as global-chain supply issues, which caused increased input and shipping costs, were substantially responsible for the change. Other significant factors include Russia’s war on Ukraine, which upset some distribution channels; unfavorable growing conditions, which have reduced farm production in parts of the world; and Canadians’ overall rising affluence. A March survey found 80 percent of responders said they already have started or plan to start to buy cheaper food items and to throw away less food. Another study shows that over a million households in Canada plan to start gardening in 2022 to raise their own vegetables.