Food and Beverage News and Trends - January 5, 2024

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

FDA again updates its investigation of lead in applesauce products. On December 26, the FDA issued an update of its investigation into applesauce pouches sold in the United States that have been found to contain unusually high amounts of lead. The update sets out new information about the agency’s previously posted safety alert addressing applesauce pouches that could contain elevated lead levels. In the update, the FDA lists additional brands of applesauce and apple puree which the agency recommends people do not eat, sell, or serve. The FDA began investigating the applesauce products in November after two state agencies, the North Carolina Department of Health and Human Services and the North Carolina Department of Agriculture & Consumer Services, discovered cases of acute lead toxicity in four children. Since then, the agency has traced the lead contamination to cinnamon sold by Negasmart, a distribution company located in Ecuador, which provided the spice to Austrofood, the Ecuadorian manufacturer of the fruit purees. An onsite inspection of the Austrofoods factory as well as tests of cinnamon samples supplied by Negasmart found lead concentrations of 5,110 parts per million - more than 2,000 times the legal level for bark spices, including cinnamon. Shnucks, Weis, and WanaBanana, a brand sold nationwide in an array of retail outlets as well as through online marketplaces, are among those implicated in the outbreak. On January 2, the Centers for Disease Control and Prevention, which is also investigating the contaminated apple products, said it is aware of at least 251 total lead-related illnesses across 34 states. The median age of those patients, the CDC said, is two years. The median age of the 87 patients the FDA has identified in its separate investigation is one. As they move ahead in the investigation, the FDA is focused on purposeful contamination. Deputy Commissioner Jim Jones said in a recent interview with Politico, “We’re still in the midst of our investigation. But so far all of the signals we’re getting lead to an intentional act on the part of someone in the supply chain and we’re trying to sort of figure that out.” 

FDA announces recall of packaged spinach due to possible Listeria contamination. On December 15, the FDA announced that salad-mix maker Fresh Express is recalling two packaged spinach products sold by retailers in seven states due to possible Listeria contamination. The recalled spinach was sold by retailers in Alabama, Florida, Georgia, North Carolina, South Carolina, Tennessee, and Virginia, Fresh Express said. The recall was initiated after routine sampling conducted by the Florida Department of Agriculture yielded a positive result for Listeria in a single randomly selected package of spinach. Fresh Express immediately notified affected retailers and instructed them to remove the recalled items from store shelves and all inventories.

Canadian Food Inspection Agency extends cucumber compliance timelines. The Canadian Food Inspection Agency has extended the transition period for updating grades and label requirements for greenhouse miniature seedless cucumbers and greenhouse long seedless cucumbers. In the CFIA’s original publication dated July 7, 2023, regulated parties had until January 6, 2024 to comply with the new requirements. The CFIA has extended this deadline to December 31, 2025.

New portal on cosmetic registration and listing. On December 18, the FDA announced the launch of its Cosmetics Direct electronic submission portal for the registration and listing of cosmetic product facilities and products. This portal is mandated by the Modernization of Cosmetics Regulation Act of 2022. It is dedicated exclusively to cosmetic product facility registration and cosmetic product listing electronic submissions to the FDA. The agency noted in its announcement that last year, it said that it would delay enforcement of the requirements for cosmetic product facility registration and cosmetic product listing requirements. While the portal is open for the December 29, 2023 statutory deadline, the FDA will not enforce against this requirement until July 1, 2024 in order to provide regulated industry additional time to comply with these requirements.

Mandatory front-of-package labeling bill introduced in both houses of Congress. On December 14, Senator Richard Blumenthal (D-CT) and Representative Jan Schakowsky (D-IL) introduced a bill that would require the FDA to establish a mandatory front-of-package labeling system for food products nationwide. “Food companies have led the American people astray for too long. If consumers could see how much sodium, sugar, and saturated fat is in their food, they might think twice about what they are purchasing,” said Schakowsky. “Our bill will create a consumer-friendly nutrition labeling system on the front of food packages. A poor diet is one of the leading causes of preventable disease in the U.S. We must do all we can to create transparency in food labeling and empower consumers to make informed dietary decisions.” Blumenthal said, “This measure ensures foods have clear front-of-package labels that highlight high levels of concerning nutrients. Standard in many other countries, front-of-package labels help consumers have accurate, interpretive information about the food they buy.”

Pig genes in soybeans. Moolec Science, a food ingredient company, is using molecular farming technology to grow animal proteins in vegetable crops, most notably the “Piggy Sooy” bean, a plant that had been genetically modified to include pork proteins. The bean is the brainchild of Gastón Paladini, founder of Moolec and a scion of the Don Juan company, one of Argentina’s largest meat producers. Paladini says he is seeking to create plants that can grow high-value proteins that capture the essence of pork, its rich umami flavors and meatiness. Moolec is also developing pea plants that contain beef proteins and safflowers that would produce an enzyme that helps milk coagulate into cheese. The company’s “Piggy Sooy” beans are pink, rather than the usual soybean tan, and, Paladini says, are “the real thing. These are real meat-protein molecules.” Moolec is based in Luxembourg; its Piggy Sooy beans were developed at its greenhouse facilities in Wisconsin. They contain genetic material from at least two animal species, meaning that in many jurisdictions, bringing them to market will pose an array of regulatory and cultural hurdles. The next step, for Moolec, is outdoor field trials in Wisconsin, possibly in 2025.