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9 June 202311 minute read

Food and Beverage News and Trends - June 9, 2023

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

FDA announces results of PFAS tests and finds few food samples with issues. On May 31, the FDA announced the results of some of its recent tests of certain food products for the presence of PFAS. In 186 samples of foods from the agency’s Total Diet Study (TDS), it detected the chemicals in two cod and two shrimp samples and in one sample each of tilapia, salmon, and ground beef. In the samples where PFAS was detected, each type of PFAS for which there are toxicological reference values was assessed individually. The agency concluded that exposure to PFAS at the levels measured in these seven samples is not likely to be a health concern for young children or the general population. The agency said that these data are consistent with its previous TDS testing results. In fact, no PFAS have been detected in more than 97 percent of the fresh and processed foods tested from the Total Diet Study.

Canadian Agri-Food Pilot extended, path to permanent residency expanded for agricultural workers. Addressing the labor shortages that are a major challenge for agricultural producers and Canada’s food security, the Canadian Minister of Immigration, Refugees and Citizenship (IRCC) is extending the Agri-Food Pilot, which is now set to run until May 14, 2025. This program helps experienced temporary foreign workers in the agricultural and food industries transition to permanent residency in Canada. The IRCC also announced some changes to the program, including removal of the limits on how many candidates may apply for a specific occupation under the pilot, thus allowing more eligible candidates to apply. Other changes include expanding open work permit access to family members of pilot participants and allowing unions to attest to a candidate’s work experience, rather than requiring employer reference letters. The occupations and industries eligible under the pilot include meat product manufacturing, greenhouse, nursery and floriculture production, and animal production, excluding aquaculture. The pilot allows 2,750 principal applicants to be processed annually.

FDA issues recommendation curbing use of inorganic arsenic in apple juices. On June 1, the FDA made a nonbinding recommendation to food manufacturers that inorganic arsenic in apple juices should not exceed 10 parts per billion. The decision, the FDA said, marks another step in the agency’s “Closer to Zero” action plan, which includes planned goals to help lower early childhood exposure to toxic heavy metals as much as possible. Additionally, food safety analysts have identified inorganic arsenic as one of the greatest concerns in baby foods.

BC’s Perennial Crop Renewal Program to provide up to $15 million in funding for fruit, berry, and nut growers. The British Columbia Ministry of Agriculture and Food has introduced the Perennial Crop Renewal Program, replacing legacy individual programs such as the hazelnut renewal program and the raspberry replant program. The new program will provide up to $15 million to support multiple sectors and has the potential to impact the wine industry and tree-fruit growers, as well as berry and nut growers. Apples, cherries, grapes, raspberries, blueberries and hazelnuts are among eligible crops under the program. This funding comes in a time when Canadian farmers have been facing massive challenges, including extreme weather and disease. The Perennial Crop Renewal Program is a cost-shared program with three streams including sector development projects, removal projects, and planting projects. For sector development projects, the Perennial Crop Renewal Program will cover 100 percent of costs for perennial food crop industry associations or sector stakeholder groups. A flat per-acre rate that is expected to cover 100 percent of the costs of removal projects will also be available for perennial food crop food producers farming in BC. Up to 75 percent of nursery plant and crop support system costs for planting projects will be available for perennial food crop producers farming in British Columbia. An additional $1 million will be dedicated to tree-fruit market development. The Minister of Agriculture and Food hopes that with this funding, farmers can plant more resilient, climate-friendly crops that can withstand extreme weather trends and strengthen the food industry as well as food security.

EPA sued over pesticide coatings on crop seeds. Neonicotinoid-coated seeds are used on more than 150 million acres of US farmland each year, including corn, soybean and sunflower crops, and the EPA currently exempts such coated crop seeds from regulatory oversight. On June 1, two nonprofits, The Center for Food Safety and the Pesticide Action Network, filed suit against the agency alleging that this exemption violates the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In 2022, EPA had said such seeds are covered by FIFRA’s treated articled exemption. The plaintiffs note that the exemption is typically applied to common household products – objects like shower curtains that have been treated to resist mildew or socks treated to resist odor – and was never meant to apply to living things like seeds. The coatings, the plaintiffs say, do not vanish, but remain systemically present as plants grow, even imbuing the plants' pollen, which bees collect and transport to the hive. Some scientists and farmers have expressed concerns that neonicotinoids are responsible for mass die-offs of bees and other pollinators, with tremendous implications for food security – indeed, the use of “neonics” on food crops is highly regulated in the Eu and in Canada. The lawsuit calls on the court to declare that such pesticide-coated seeds do not qualify for the treated article exemption and that they should be regulated under FIFRA, which would limit their use and impose labeling requirements. The case is Center for Food Safety et al. v. United States Environmental Protection Agency et al., US District Court for the Northern District of California.

Health Canada announces strategy to increase importation of infant formula to manage shortages. Foods for a Special Dietary Purpose (FSDP), including infant formulas, address dietary management needs for individuals with certain medical conditions – for instance, a need for a formulated liquid diet for tube feeding. But Canada’s Food and Drug Regulations (FDR) mean that many FSDPs are not available in Canada, and that the country is vulnerable to FDSP shortages due to import restrictions and to excessive pricing of such products. Now Health Canada has extended its interim policy on the importation and sale of infant formulas, human milk fortifiers, and dietary products to treat inborn errors of metabolism, with the goal of addressing shortages of infant formula and other FSDPs. Health Canada has also been working with established manufacturers to increase the availability of formulas regularly found on the Canadian market. Finally, acting on its own criticisms of the FRD as out of step with modern nutrition, Health Canada also intends to launch a public consultation, in fall 2023, to seek input on a proposed modernized framework for Division 24 and 25 of the FDR, to comprehensively modernize FSDP regulation.

Grocery rebate bill becomes law. Bill C-46, the Cost of Living Act which will provide eligible Canadians with direct relief to mitigate the rising price of groceries, became law on May 11 and will be extended to eligible Canadians on July 5. The Canada Revenue Agency will issue the grocery rebate along with July GST credit payments to families earning less than $40,000 annually. Couples with two children will receive a payment of up to $467, while eligible seniors will receive up to $225. The one-time rebate will be sent to about 11 million low- and modest-income Canadians. There are no specific rules about where and how the rebate may be spent. Bill C-46 also provides a $2 billion top-up for public healthcare funds to help reduce backlogs and wait times and to support pediatric hospitals and emergency rooms across Canada.

Food labeling bill introduced. On May 22, US Representative Josh Gottheimer (D-NJ) announced his new Fixing Food Labeling Plan, a bill he said is intended to address unclear and sometimes misleading date labeling on groceries and other manufactured products. The same day, Gottheimer wrote to the FDA and USDA urging them to issue new national guidance on food labeling and to share the science behind the selection of use-by label dates. “Because of the lack of standardization for food labels, food manufacturers can pick a random, unscientific date and game the system to prompt quicker removal of products from shelves,” the representative said. “That costs all of us here at our local grocers, restaurants, leads to consumer confusion, and billions of pounds of unnecessary waste.”

California Senate passes bill to improve school lunches. On May 30, the California state Senate approved Bill 348, which, according to its sponsors, will improve the nutritional value of meals served to schoolchildren in the state. The bill would require California schools that participate in the National School Lunch Program to follow the national school nutrition standards set by the Biden Administration earlier this year. These standards aim to reduce the quantity of sugars, salt and fat in school meals and increase the quantity of whole grains. The bill’s key sponsor, state Senator Nancy Skinner, has said she hopes that setting stricter nutrition standards for these school lunches, which make up over half the calories some students consume in a day, will mitigate the risk of children developing diabetes, which has become one of the most common chronic diseases in the young.

New Texas law requires special labeling on meat-analog products. On May 15, Texas Governor Greg Abbott signed a bill requiring clear labeling in Texas of plant-based products that are similar to meat, poultry, seafood and eggs, as well as cell-cultivated meat. The law takes effect on September 1. The new law is an attempt to address the issue of possible unclear labeling for products that look and taste like ordinary animal-derived products. The law requires these products to have prominent labeling near the product name that explains it is an analog or that it was made through cell cultivation. Such products will need to be labeled with one of the following terms: “analogue; meatless; plant-based; made from plants, or a similar qualifying term.” Laws of this type in other states have been challenged, often on constitutional grounds, by plant-based food companies and advocacy groups. See our coverage of a recent Louisiana ruling regarding meat-analog labeling.

California bill on food additives draws opposition from trade groups. Natural Products Insider reported May 26 that a pending bill in the California legislature that would ban five food and color additives, including titanium dioxide, in the state, has drawn opposition from trade groups that say it undermines the federal government’s established system for dealing with such additives. The bill, which was recently passed by the state’s General Assembly, would prohibit the manufacture and sale of food products containing brominated vegetable oil, potassium bromate, propylparaben, red dye #3, and titanium dioxide. Steve Mister, president and CEO of the Council for Responsible Nutrition, said, “With regard to titanium dioxide, we are concerned when any state second-guesses the $7.2 [billion] federal agency specifically tasked by law with ensuring the food and drug supply of this country is safe. Doing so only confuses consumers and industry and creates precedent for more of these state-level exceptions.” See our earlier coverage of this bill.

Taiwan grants market access to Canadian beef. Taiwan has announced it will be restoring full market access for Canadian beef in the coming weeks and is now allowing beef from animals over 30 months of age as well as ‎all types of offal. The restrictions date back to Canada’s discovery of a case of ‎BSE (bovine spongiform encephalopathy or mad cow disease) in Alberta back in 2003. The announcement marks the removal of the last set of restrictions Taiwan put in place ‎after the discovery. Canada’s Minister of International Trade, Mary Ng, shared the news in a tweet while ‎attending the Asia Pacific Economic Cooperation (APEC) meeting in Detroit. In a news release, the ‎Canadian Cattle Association stated it is grateful for Taiwan’s decision to “adhere to science-based ‎trade” and noted that ‎Taiwan’s actions are sending “a strong signal to the Indo-Pacific region” and that “our industry is proud to ‎support global food security by producing a sustainable and high-quality product.”‎