Food and Beverage News and Trends - April 12, 2024

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

Draft guidance on NDIN Master Files for dietary supplements. In response to requests from the dietary supplement industry, on April 3 FDA announced draft guidance entitled “New Dietary Ingredient Notification Master Files for Dietary Supplements.” While NDIN Master Files are not required and are submitted solely at the discretion of the Master File owner, FDA notes, they may be used “to facilitate the process of submitting NDI-related identity, manufacturing, and/or safety information to the FDA for use in evaluating a potential future NDIN.” Electronic comments on the draft guidance may be submitted by June 3, 2024.

Canada: Research aims to quantify greenhouse gas emissions from food loss. Dalhousie University and the Circular Innovation Council have teamed up to quantify greenhouse gas (GHG) emissions produced from food loss and waste throughout Canada’s food ecosystem. The research aims to address GHG emission data gaps and evaluate Canada’s existing food loss and waste policies with the ultimate goal of reducing food waste and reaching net zero emissions in Canada by 2050. Funding for the research will be provided by the Natural Sciences and Engineering Research Council of Canada.

USDA organic program handbook. The USDA has updated the National Organic Program (NOP) Handbook, The Handbook aims to provide clear guidance and instructions to USDA-accredited certifiers and certified organic operations. USDA has also published a summary of the changes in the updated Handbook, which may be seen here.

Canada Royal Milk receives go-ahead to produce infant formula. The Canadian Food Inspection Agency (CFIA) and Health Canada have approved dairy processor Canada Royal Milk to commence production of infant formula for Canadian consumption. Based in Kingston, Ontario, Canada Royal Milk anticipates that its infant formula will be ready for retail distribution across the country by summer 2024. The company has already been producing powdered cow milk for the international market since 2019. In 2022, it announced its partnership with the Ontario Goat Dairy Co-operative and Producteurs de lait de chèvre du Québec to produce powdered goat milk.

FDA announces final webinar in its series on food safety culture. On May 6, 2024, FDA will be livestreaming the last in a webinar series, done in partnership with the nonprofit public health organization Stop Foodborne Illness. These webinars are intended to facilitate a collaborative dialogue among experts from both the public and private sectors, exploring the significance of fostering a strong food safety culture to ensure the production of safe food. You may register for the webinar here.

Reclassifying use of sulphur dioxide gas on fresh grapes during storage and transport. Following a request from industry, Health Canada has reclassified the use of sulphur dioxide on fresh grapes during storage and transport. Health Canada notes that when the residual level of sulphites on consumer prepackaged fresh grapes at the point of retail sale is 10 ppm or higher, then sulphites are considered a food additive and must be declared in a list of ingredients on the label. However, if sulphite levels are less than 10 ppm, they are considered a processing aid and are not required to be declared on the grapes’ label. In contrast, when sulphite is used during storage and transport of prepackaged fresh grapes in containers other than consumer prepackaged ones, its use is considered a food additive. To reflect this reclassification, CFIA has updated the Labelling Requirements for fresh fruit and vegetables in its Industry Labeling Tool. Canada still does not permit the addition of sulphites to any other fresh fruit or vegetable that is intended to be consumed raw.

FDA releases data on economic adulteration of imported honey. FDA has released data from a sampling assignment carried out in 2022 and 2023 to test imported honey for economically motivated adulteration (EMA). EMA occurs when a valuable ingredient or part of a food is intentionally left out, taken out, or is substituted, or when a substance is added to a food to make it appear better or of greater value. FDA’s sampling was designed to identify products that contained undeclared sweeteners that are less expensive than honey, such as syrups from cane and corn. Of the 107 samples of imported honey collected, the agency found 3 samples (3 percent) to be violative, which was a decrease from the 10 percent found in violation as a result of the 144 samples collected in 2021-2022.

Senators ask that the potato remain in the “vegetable” category. On March 26, 14 US senators signed and sent letters to the Departments of Agriculture and Health and Human Services asking them to keep the potato classified as a vegetable in the 2025-2030 Dietary Guidelines for Americans (DAG). Their request came in the wake of reports that the DAG Advisory Committee is considering recategorizing potatoes as a grain. For nutritional purposes, potatoes have already been removed from the vegetable category by a number of public health authorities, among them the Harvard T.H. Chan School of Public Health, because of the way they impact blood sugar due to their high carbohydrate content and high glycemic load. “Over the long term, diets high in potatoes and similarly rapidly-digested, high carbohydrate foods can contribute to obesity, diabetes, and heart disease,” the school states. The senators, many of whom hail from potato-growing states, made a case that the potato is a vegetable, not a grain, and pointed to its nutritional benefits, its physical characteristics, and its horticultural scientific classification. “If potatoes were to be reclassified, consumers would miss out on vital nutrients,” they wrote. “In addition, any change to potatoes’ current classification under the DGAs would immediately confuse consumers, retailers, restaurant operators, growers, and the entire supply chain.”

Recalled cantaloupes class action. Class action lawsuits have been initiated in Quebec and British Columbia against the growers and major distributors of Malichita and Rudy brand cantaloupes, which were recalled following a 2023 Salmonella outbreak linked to the contaminated fruit. In Canada, 190 illnesses have been connected to this outbreak, including nine deaths. The action seeks to recover compensation for Canadians affected by the outbreak by recovering damages on behalf of Canadians who purchased or consumed the products, and Canadians who disposed of “unidentifiable” products after receiving notice of the recalls.

New West Virginia bill would restrict labeling of plant-based proteins. On March 9, in an overwhelming 86-11 vote, the West Virginia House of Delegates passed a bill that would broaden the definition of "misbranded" food labeling in state law – specifically focusing on "analogue" and "cell-cultured” products. The bill spells out specific terms to be used in West Virginia on the labels of cell-based meats, plant-based proteins, and similar products. For example, when a food product is an analogue of meat, such as a plant burger, its label must bear, in prominent type placed immediately before the name of the product, one of the following terms: “analogue,” “meatless,” “plant-based,” “made from plants,” or a similar qualifying term or disclaimer intended to clearly communicate to a consumer the contents of the product. Products that do not comply with the restrictions and requirements of the Truth in Food Labeling Act will be considered misbranded. At this writing, the bill is awaiting signature by Governor Jim Justice and, once signed, will go into effect 90 days from its passage.

HPAI. On April 5, the CDC issued a health alert aiming to inform the public and healthcare centers of another confirmed human infection of the H5N1 strain of bird flu, also called HPAI (highly pathogenic avian influenza). The patient, the second person in the US to test positive for this strain of HPAI, works on a commercial dairy farm in Texas. He likely caught the virus from infected cattle; his symptoms were mild.

HPAI has spread around the world, primarily infecting, and often devastating, wild bird populations. In 2022, it began infecting domestic poultry flocks globally – in the US alone, since the first confirmed outbreak in February 2022, nearly 80 million farm birds have been culled to stop the spread of the disease. On April 3, Cal-Maine Foods, the largest US producer of eggs, announced it is temporarily halting operations at its Parmer County, Texas facility after finding HPAI at that facility, where about 1.6 million hens and 337,000 pullets – 3.6 percent of the overall Cal-Maine flock – had to be culled.

This year, for the first time, avian influenza is being reported in ruminants – genetic testing indicates that wild birds are the source of these infections. At this writing, cows on dairy farms in five US states have tested positive for HPAI. Of note: for cattle, the strain is not proving to be deadly. Federal officials are emphasizing that the commercial milk supply is not at risk thanks to public health safety nets such as pasteurization.

Who is most at risk? Medical, veterinary, and public health experts are most concerned about those in close contact with infected cattle. On April 1, Joe Armstrong, DVM, a livestock educator with the University of Minnesota, said in his Moos Room podcast that the people most at risk at present are dairy farm operators and workers at farms where the virus is confirmed or suspected. Armstrong urged dairy operators to ensure that workers, including those from other countries who don't speak English well, know about H5A1. "They may or may not be willing to seek medical help when they need it,” he said. "If you are out there and you have employees who fit that description, you need to be advocating for them and watching out for them.”

Grain trade group leader says it’s time to combat rhetoric about ultra-processed foods. Erin Ball, the executive director of the Grain Foods Foundation, told an industry audience March 12 that the milling industry should be proactive in combating arguments that “ultra-processed” foods are a serious public health problem. “The milling industry has a great story to tell about processing’s role in delivering delicious, nutritious and safe ingredients to manufacturers and consumers,” Ball told attendees of the North American Millers’ Association spring conference. “It's important to take our passion and conviction to a larger audience.” In her address to the group, she displayed a graphic created by opponents of these foods. “The graphic is building this argument against this murky category of food, alongside the copy saying these foods are sneaky, that they’re not only bad for our bodies, but they’re messing with the planet,” she said.