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.

• Court orders FDA to study risks from genetically engineered salmon. On November 5, a US district court ordered the FDA to formally study the risks to human health and the environment from the raising of genetically engineered salmon. A company called AquaBounty Technologies is now raising such salmon – which grow about twice as fast as normal salmon – in tanks in the Midwest. The US District Court for the Northern District of California ruled that the FDA’s earlier analysis of the possible risks of genetically engineered salmon was inadequate because it did not take into account the possibility that the salmon would escape into the wild. The court, however, declined to order the FDA to reverse its approval of the process while the review was pending. The decision “basically requires FDA to finally grapple with what scientists both inside and outside the government have been telling it for a very long time, which is that there are unacceptable risks from genetically engineered salmon,” said Stephen Mashuda of Earthjustice, which represents conservation and fishing industry groups that sued the FDA.
• FDA takes step toward disclosure of sesame in food products. On November 10, the FDA published draft guidance in the Federal Register that asks manufacturers to voluntarily disclose the presence of sesame in their products. The agency said this step is part of an ongoing review whereby it will determine whether sesame is an allergen that needs to be specifically stated in food labels. Under the guidance, products that contain sesame as part of a broad category listed on the ingredient label, including “natural flavors” or “spices,” should use the word sesame in parentheses next to it so consumers know that the product contains sesame. If the product includes an ingredient made from sesame that doesn't contain the word sesame, like tahini, the guidance asks that the word sesame follow it in parentheses as well. Data published last year showed that about .5 percent of the US population could be allergic to sesame.
• Health experts urge strict limit on alcohol consumption because of cancer risks. In an October 29 op-ed article in The Hill, two health experts argued in favor of a federal nutrition advisory committee’s recommendation that Americans curtail their consumption of alcohol for health reasons. The authors – Thomas Gremillion of the Consumer Federation of America and Nigel Brockton of the American Institute for Cancer Research – said alcohol consumption is now the third most significant cause of cancer that is within a person’s ability to control and that alcohol has been linked to at least six types of cancer. The advisory committee urged that men in the United States should consume, on the average, no more than one drink per day, a reduction from the previous maximum of two drinks per day. The members of the advisory committee, the authors added, “are not ideologues,” contrary to the characterization of them by the alcohol industry.
• Major Kansas county repeals antiquated alcohol-by-the-drink restriction. On Election Day, November 3, voters in Johnson County, Kansas, voted overwhelmingly to repeal the county’s restrictive liquor-by-the-drink law, which requires businesses in the county that serve alcohol to make 30 percent of their sales from food. Many business owners said the repeal will make it easier to operate craft breweries, cocktail bars and wineries in the county. The repeal is permanent and is not a pandemic-related temporary measure. The law dates to the 1880s, when Kansas was one of the first states to impose a form of Prohibition. Johnson County is the second-largest county in the state and includes many Kansas City suburbs.
• Listeria outbreak in deli meat kills one, affects 10 people in three states. The Centers for Disease Control and Prevention issued a warning on October 23 against the consumption of all deli meats because of an ongoing Listeria outbreak. The outbreak has killed one person and sickened 10 people in three states, with the average age of the victims being 81. The CDC has not yet identified a particular type of meat or company as the source of the outbreak, although at this writing some of those who fell ill have reported consuming Italian-style meats, like salami, mortadella, and prosciutto, bought at deli counters. While Listeria does not rise to the category of a serious illness in many people, in those over 65 years old it is potentially deadly, and it is also dangerous for pregnant women. The CDC has warned those who are at high risk of infection to avoid deli meat unless it is thoroughly heated.
• Former Blue Bell president is charged with fraud and conspiracy after Listeria outbreak. On October 20, Paul Kruse, the former president of Blue Bell Creameries, was indicted on seven counts of fraud and conspiracy in what federal prosecutors said was a plan to cover up a 2015 Listeria outbreak that originated in the company’s ice cream. The outbreak caused 10 illnesses and three deaths. Blue Bell pleaded guilty in May 2020 to two misdemeanor counts of introducing adulterated food products into interstate commerce and agreed to pay $19.25 million in fines and forfeitures. That was the second-largest fine ever levied by the federal government in a food safety case. Kruse’s lawyer, Chris Flood, said, “We firmly believe that the charges are untimely and will be dismissed. Aside from that, the charges aren't true. Blue Bell did the best they could with the information they had at the time. And there was never an intention to defraud anybody.” The Department of Justice states that in 1995, when customers expressed concern about products being pulled from shelves, Kruse instructed employees to say there was  "an unspecified issue with a manufacturing machine.” After Texas State Health officials notified the company about the Listeria contamination, Kruse waited two months before recalling any products or informing its customers.
• Jimmy Dean faces class action over the whole wheat content of its English muffins. On October 17, the Hillshire Brands Company, which makes Jimmy Dean products, was hit with a class action lawsuit over alleged deception in the marketing of Jimmy Dean’s English muffins. The muffins are prominently labeled as being made with “whole grain.” According to the complaint, however, the first item in the ingredients list is “enriched wheat flour,” and the third item is “whole grain wheat flour.” The complaint, filed in the US District Court for the Southern District of New York, alleges that only two percent of the muffins, by weight, is made up of whole grain wheat flour. This, according to the complaint, means that the product is being labeled in a misleading manner. Thus, had the plaintiffs known the truth about the product’s ingredients, they would not have bought them or they would have paid less for them.
• Arizona Beverages is sued over calorie content of its Arnold Palmer product. On October 29, a consumer brought a proposed class action against Arizona Beverages USA LLC, contending that the company engaged in deceptive labeling when it labeled its Arnold Palmer Half & Half Iced Tea Lemonade products as “lite.” The complaint says that a product can legally be labeled as “lite” only if it contains at least one-third fewer calories than an appropriate reference food. In fact, according to the complaint, the Arnold Palmer product contains 130 calories per 12-ounce bottle, only 10 calories fewer than the same size of Coca-Cola. The complaint was filed in the US District Court for the Southern District of New York. According to the complaint, consumers have been misled to believe that the iced tea and lemonade mixture is lower in calories than similar items, when in fact it is not, and the company was able to sell more of the product and at higher prices than it would have in the absence of the deception.
• Court rejects complaint against Welch Foods concerning fruit snack labeling. On October 27, a California appeals court upheld a lower court’s dismissal of a complaint against Welch Foods Inc. concerning the labeling of Welch’s Fruit Snacks. The ruling means that the company will be able to continue to claim that the first ingredient of the snacks is fruit, even though the label actually lists fruit purée as the first ingredient. The plaintiff had claimed that the statement “Fruit Is Our First Ingredient” on the packaging was misleading since, if the fruit purée were to be broken down into its ingredients, the first one listed would have been sugar. The judge rejected the plaintiff’s arguments, noting that fruit purée has a commonly understood meaning and that a wide variety of food companies use the term. The complaint had alleged a violation of California’s unfair competition law.
• Maker of Entenmann’s is sued over butter loaf cake. On October 25, Bimbo Bakeries USA Inc., which owns Entenmann’s bakeries, was sued in the US District Court for the Southern District of New York over the labeling of Entenmann’s “All Butter Loaf Cake.” The complaint declares that the product actually contains soybean oil, a vegetable shortening, in addition to butter, and that it also contains artificial butter flavoring to create the impression that the product has more butter than it actually does. Had the plaintiffs known the truth, the class action complaint says, they would either have refrained from purchasing the product or they would have paid less than its “premium price” of about $3.99 for a 12-ounce loaf.