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.

• Winter storm devastates Texas agriculture. “We’re looking at a food supply chain problem like we’ve never seen before, even with COVID-19,” Texas Agriculture Commissioner Sid Miller said on February 16 as he issued a “red alert” about the state of the agriculture system in Texas. The massive winter storm that swept across the United States the weekend of February 13 hit Texas especially hard, leaving millions in freezing temperatures without electricity, gas, and at times, even fresh water. Many farmers and ranchers saw their operations devastated. Crops in the Rio Grande Valley froze in the fields, in what Produce News called a “Valentine's Day produce massacre,” and livestock perished from exposure. Dairy operations were dumping $8 million worth of milk every day, Miller said, because the plants that process the milk did not have power, and grocery shelves across the state are bare. Miller called on Governor Greg Abbott to designate agriculture producers and processors as “critical infrastructure” that, like hospitals and first responders, must be provided gas and electricity to continue operations.
• CSPI launches campaign for FDA traceability rule. In January, the FDA announced a proposed rule, “Requirements for Additional Traceability Records for Certain Foods,” which would enable the agency to better track down the cause of foodborne illness. The agency regards this rule, which would implement Section 204(d) of the Food Safety Modernization Act, as a key component of its New Era of Smarter Food Safety Blueprint. On February 18, the nonprofit Center for Science in the Public Interest launched a consumer-advocacy campaign to support the traceability rule. “Improved traceability should be viewed as a success for both consumers and industry,” the CSPI stated. “This proposed rule would greatly enhance the current traceability in the food system and solve many of the problems identified in previous outbreaks.”
• Report indicates that new inspection regime at pork plants may increase contamination. The Washington Post reported on February 18 that in a recent four-year period, hogs slaughtered at pork plants where a USDA food safety inspection program was tested had contamination rates nearly twice that of hogs processed in traditional plants. The new system that was being tested was designed to shift many food safety responsibilities from federal inspectors to employees of pork-processing companies. It reduces the number of USDA inspectors on slaughter lines in some plants by as much as 40 percent. The data shows that the five plants used in the test program were cited by USDA inspectors nearly twice as often as other plants for having fecal and digestive matter on hog carcasses when they reached the end of the slaughter line. The new data in the report comes from a request filed with the federal government by a nonprofit group, Food and Water Watch.
• Starbucks is targeted with a class action over its vanilla frappuccinos. On February 5, Starbucks became the target of yet another of the burgeoning number of “vanilla” class actions being filed in federal courts across the nation. The complaint against the coffee company, filed in the US District Court for the District of Massachusetts, alleges that the lead plaintiff and other consumers were duped concerning the actual contents of Starbucks’ vanilla frappuccinos. The complaint asserts that Starbucks deceptively labels the drink as a “Vanilla with Other Natural Flavors Starbucks Frappuccino Chilled Coffee Drink.” According to the allegations, reasonable consumers are led to believe that the product contains vanilla as the ingredient providing the drink’s characterizing vanilla flavor when in fact, it is another “natural flavor,” not actual vanilla, that provides this flavor.
• “Krab”? “Crab”? A divided panel of the US Court of Appeals for the Ninth Circuit held on February 9 that a consumer class action against the P.F. Chang’s restaurant chain based on the chain’s use of the term “Krab Mix” on its menus could proceed. The court reversed a district judge’s ruling dismissing the case. The plaintiff had bought sushi rolls at the restaurant that were identified on the menu as being made with “Krab Mix” but contained no actual crab. He made claims based on California state law that he had been deceived into believing there was at least some actual crabmeat in the product. The issue is whether a reasonable jury could find that a “reasonable consumer” would likely be deceived by the use of the term “Krab Mix.” The appeals court found that it could not conclude that the term can’t be reasonably viewed as designating a product that is a mixture of real crab and imitation crab. Therefore, the court permitted the lawsuit to continue.
• Notifying Blue Bell Listeria victims. On February 12, federal prosecutors who plan to try Paul Kruse, former president of Blue Bell Creameries, on seven counts of wire fraud and conspiracy asked the court to let the Department of Justice comply with the Crime Victims’ Rights Act “by using reasonable alternative measures for notifying potential unknown victims.” The DOJ team wants to list the Kruse case information on the Department of Justice Large Case website in an effort to reach victims of the outbreak who may be unaware of the coming trial. Kruse is accused of orchestrating a coverup of Blue Bell’s sale of Listeria-tainted ice cream in 2015; three people died in that outbreak. In May 2020, Blue Bell pleaded guilty 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. The trial is set for July 26, 2021, and Kruse has entered a not guilty plea. See our earlier coverage of this litigation.
• Hispanic-style cheese recalled in wake of outbreak of Listeria. On February 19, health inspectors in Connecticut confirmed that the Listeria they found on samples of El Abuelito brand queso fresco was the same strain that had sickened consumers in several East Coast states. The seven consumers who fell ill in Connecticut, Maryland, New York and Virginia all had to be hospitalized. Also on February 19, the manufacturer, El Abuelito Cheese of Paterson, New Jersey, announced an immediate recall of its 17 queso fresco cheese products, which are sold under the El Abuelito, Rio Grande and Rio Lindo brands.