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.

• Consumer groups ask FDA to take action against hard seltzer marketing. On March 15, the Center for Science in the Public Interest and the Consumer Federation of America sent a letter to the FDA urging it to take action against Molson Coors for allegedly misleading consumers with its Vizzy Hard Seltzer advertising campaign, which highlights the vitamin C and antioxidant content of the alcoholic beverage. The consumer groups said Molson Coors is violating FDA rules that prohibit misleading claims and that strongly discourage food companies from fortifying snack foods, carbonated drinks, or alcoholic drinks with vitamins. The letter alleges that alcoholic drinks are poor ways for people to obtain nutrition: they provide empty calories, are associated with serious health conditions and, when consumed in excess, inhibit the body’s ability to take up nutrients from food.
• FDA grants approval on GRAS list to new form of stevia. On March 15, the FDA approved a new form of the sweetener stevia to be included on its Generally Recognized As Safe (GRAS) list. The product is SweeGen’s Bestevia brand, Rebaudioside B. The manufacturer said that the product is considered a next-generation stevia product because only a minute amount of it is actually found in nature in the stevia leaf, and that it used proprietary bioconversion technology to produce sustainable stevia sweeteners “with assured quality, regulatory compliance and competitive prices.”
• USDA is asked to stop dragging its feet on Salmonella. On March 16, well-known food safety attorney Bill Marler filed a request with the USDA seeking action on a petition that he filed with the department more than a year ago. The petition had asked the department’s Food Safety and Inspection Service (FSIS) to declare specific types of Salmonella to be adulterants in meat. The petition was filed on behalf of Food & Water Watch, the Consumer Federation of America, Consumer Reports and a number of individuals. Marler told the agency that under the Administrative Procedure Act and court decisions, agencies owe petitioners a response within a “reasonable time.” He said those responses may be compelled by the courts if an unreasonable delay has occurred. “To protect the public, FSIS needs to acknowledge that certain Salmonella serotypes pose an unacceptable risk to consumers and make rules to keep adulterated products contaminated by these serotypes off the shelves,” he wrote.
• Montana legislature considers bill legalizing the sale of raw milk, ending cottage food licenses. On March 17, a member of the Montana state legislature presented a proposed bill to a legislative committee that would allow residents of that state to sell food from their homes directly to consumers without any government oversight. Sellers of homemade food would no longer need a so-called cottage food license and would be exempt from inspections unless an outbreak of foodborne illness occurs. The bill would also legalize the direct sale of raw milk in the state by the owners of small dairy herds. The proposal to allow the sale of unpasteurized milk drew significant opposition from veterinarians and medical professionals because of the possibility of foodborne illness. Marty Zaluski, the state veterinarian at the Montana Department of Livestock, warned against raw milk consumption, noting the CDC assessment that the risk of an outbreak caused by raw milk is at least 150 times higher than the risk of an outbreak caused by pasteurized milk. 
• Berkeley initiates first healthy checkout-aisle ordinance in nation. On March 1, Berkeley, California implemented a new city ordinance, regarded as the first such local law in the nation, which requires stores to place more-healthful items in the checkout aisle so that shoppers and children do not buy sweet and salty snacks on impulse. The rules apply to stores larger than 2,500 square feet. They permit only food items to be placed in the checkout aisle that contain fewer than five grams of added sugar and fewer than 200 milligrams of sodium. In addition, beverages must contain no added sugars or artificial sweeteners. A local store owner praised the ordinance, saying, “We don’t carry too much here, but I do pay attention to what we bring in because we want to keep the public healthy and keep the community healthy. I think it’s a great idea because [the checkout aisle] is where people make impulse purchases, and there definitely should be more healthier options.”
• Senate passes sesame labeling bill. On March 3, the US Senate unanimously approved the Food Allergy Safety, treatment and Education Act (the FASTER Act), which would require that sesame be specifically labeled as an allergen on packaged foods. Should the bill become law, sesame would be the ninth food allergen for which the FDA requires plain-language labeling. The FASTER Act was introduced in the Senate by Senators Tim Scott (R-SC) and Chris Murphy (D-CT). FARE, a food-advocacy group, said the bill “will save lives, provide transparency, eliminate fear and anxiety, and help reduce health care costs by eliminating some of the thousands of emergency room visits made each year by those suffering food allergies.” The FASTER Act is also being considering by the House of Representatives, where it was introduced by Congresswoman Doris Matsui (D-CA) and Congressman Patrick McHenry (R-NC); industry observers predict it will likely pass and then be signed into law.
• New Mexico relaxes liquor laws to permit home delivery. New Mexico recently became the latest state to make it easier for consumers to have alcoholic beverages delivered to their homes. On March 9, the state House of Representatives approved a bill, which had previously been approved by the state Senate, that would, for the first time, permit New Mexico retailers such as grocery stores and restaurants to deliver alcohol to consumers’ homes. The bill also creates a new category of liquor licenses that modifies restaurants’ beer and wine licenses to include spirits, making it easier for restaurants to serve liquor. “This is without question the most impactful liquor reform bill in 40 years in the state of New Mexico,” said state representative Moe Maestas, the chief sponsor of the bill.
• Salmon producer reaches settlement in class action over its labeling. On March 16, Norwegian salmon producer Mowi and its US-based subsidiary Ducktrap River of Maine reached a settlement with consumers and with a New York retailer that had alleged the company had falsely labeled its products. The plaintiffs had charged that Ducktrap River of Maine had employed false and deceptive marketing when it labeled its products as “sustainably sourced.” The lawsuit alleged that the salmon products, while represented as sustainable, natural, and sourced from Maine, were in fact the products of unsustainable and environmentally unfriendly industrial farming, were not natural because the farmed salmon were treated with antibiotics and pesticides, and were sourced from international waters rather than off the coast of Maine. Under the settlement, a fund of $1.3 million will be set up to reimburse consumers who bought the salmon products.
• Wear a mask, get a sandwich. As the pandemic grinds on, many restaurants are struggling to convince customers to comply with mask and safety protocols. In Chicago, the popular traditional deli Manny’s announced that on Tuesday, March 30, it will give away up to 1,000 free sandwiches to customers who come into the restaurant wearing a proper mask. Manny’s originally had tried another tack, announcing on Twitter during the week of March 15 that “if we go 30 days without having to ask anyone to put a mask on or properly wear your mask, we will give away free sandwiches for the day.” Danny Raskin, a member of the fourth generation of the family operating Manny’s, said, “Most days we didn’t make it two hours. We quickly realized it wasn’t realistic.” An anonymous benefactor who is a Manny’s regular stepped in and offered to pay for the 1,000 free sandwiches, which will be given out on a first-come, first-served basis, limited to one free sandwich to each appropriately masked-up customer.