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.

• FDA issues report on major Salmonella outbreak linked to red onions. On May 13, the FDA released an investigative report concerning the causes of the largest Salmonella outbreak in more than a decade. The outbreak occurred in 2020, when Salmonella illness from consumption of red onions was reported in 1,127 people in the United States and 515 people in Canada. There were 167 hospitalizations but no deaths. Red onions had never been implicated previously in an outbreak of foodborne illness. The FDA’s investigation did not conclusively determine how the onions became tainted, but its leading hypothesis points to contaminated irrigation water used in a growing field in Holtville, California.
• FDA discloses post-COVID plans for routine facility inspections. On May 5, the FDA released “Resiliency Roadmap for FDA Inspectional Oversight,” reporting on the inspections it conducted in 2020 and its plans for the inspection of food facilities in the coming years. During the height of the pandemic in 2020, the agency postponed all routine facility inspections, both domestic and foreign, and chose to conduct only mission-critical inspections to mitigate the spread of the coronavirus and to keep its employees and plant workers safe. The report sums up how, in 2020, the agency implemented new tools and approaches to conduct remote evaluations through livestreaming, teleconferencing and screen sharing, partnered with local, state and federal regulatory entities to gather information, and conducted sampling and analytical testing of regulated products. The report then goes on to set out a roadmap for resuming its routine facility inspections, parsed out by “base-case,” “best-case” and “worst-case” scenarios, depending on the status of the pandemic. See the report here.
• FDA announces it is kicking off research on possible voluntary “healthy” food symbol. On May 6, the FDA announced it is beginning to conduct preliminary consumer research on the use of symbols on food product labels. FDA is specifically seeking to understand how a government-defined symbol can be used to convey the nutrient content claim that a food is “healthy.” Any potential symbol of this type, the FDA said in its official announcement, could be used voluntarily by companies on food product labels that meet the “healthy” definition. The FDA sought feedback from industry and from the public on its plan. “Today’s request for feedback,” the agency said, “is an important initial step toward our goal of providing consumers with information and tools to enable them to easily and quickly make food choices consistent with public health recommendations and to encourage the development of healthier foods by the industry.”

• US government seizes shipment of kratom, a supplement with no approved use. On May 21, US marshals, at the request of the FDA, seized more than 207,000 units of dietary supplements and bulk dietary ingredients containing kratom – a seizure worth approximately $1.3 million. Kratom, Mitragyna speciosa, is banned in several Asia Pacific countries and several US states but is openly marketed online; it has become a popular folk treatment for pain and symptoms of opioid withdrawal. The kratom-containing supplements that were seized were manufactured by Atofil, LLC, of Fort Myers, Florida. “There is substantial concern regarding the safety of kratom, the risk it may pose to public health and its potential for abuse,” said Judy McMeekin, the FDA’s associate commissioner for regulatory affairs. “The FDA will continue to exercise our full authority under the law to take action against these adulterated dietary supplements as part of our ongoing commitment to protect the health of the American people.”  The FDA turned its attention to kratom in 2017 in the wake of reports of 36 deaths associated with its use, as well as a tenfold rise in calls to poison control centers about the substance.

• WHO sets new standards for sodium levels in a variety of foods. On May 5, the World Health Organization made a formal announcement setting forth global benchmarks for sodium levels in more than 60 food categories, in the interest of reducing sodium intake worldwide. “The setting of global sodium benchmarks is a very important step to facilitate reformulation of food products which contributes to drive progress in sodium reduction. These global benchmarks are intended to be complementary to ongoing national and regional efforts to set sodium targets,” the WHO said in a statement. Michael Jacobson, founder of the nonprofit Center for Science in the Public Interest, said the WHO’s recommendations are important and timely and “demand the attention of food company executives, health officials and food regulators in the US and abroad.”
• Target to launch planted-based products. On May 11, Target announced that it is launching its own line of plant-based foods. The more than 30 products will be sold in Targets nationwide under the company’s Good & Gather Plant Based private label and will range from “meatless meatballs” and “chik’n patties” to oat milk, a vegan salad dressing, and a pizza-flavored dip with a cashew base. Demand for plant-based foods is on the rise. In 2020, retail sales of such products jumped 28 percent, to $7 billion, over the previous year. The Good & Gather Plant Based products will retail for under $5.
• Blue Diamond settles vanilla-yogurt lawsuit with class of consumers. On May 18, the US District Court for the Southern District of New York approved a $2.6 million settlement of a consumer class action against Blue Diamond Growers. The class action complaint, originally filed in 2020, had alleged that Blue Diamond falsely claimed its almond milk yogurt products were flavored with vanilla. Blue Diamond agreed to the settlement, which would provide a schedule of rebates to consumers who claim they purchased the products in question. For settlement purposes, the class members include everyone who bought Blue Diamond Almond Breeze brand vanilla-flavored yogurt in the United States. Members of the class will be able submit claims for up to ten different products. Consumers who have proof of purchase can claim $1 per product, and those who don’t have proof can claim 50 cents per product.

• Vital Farms is accused of not living up to its claims of humane treatment of animals. On May 20, a group of consumers in Michigan, California, Texas, Florida and New York filed a class action against Vital Farms in the US District Court for the Western District of Texas. They accused the pasture-raised egg company of deceiving the public into buying their eggs at high prices. The plaintiffs claim that, contrary to its public statements, Vital Farms uses cruel and unethical practices in raising its chickens. For example, the lawsuit disputes Vital Farms’ claim that its hens spend their time outdoors and are thus “pasture raised.” The lawsuit was filed with the assistance of attorneys from the People for the Ethical Treatment of Animals Foundation. Vital Farms issued a statement denying the claims in the lawsuit and said the company is committed to doing what is right for its stakeholders, which also include animals. The company said its animal welfare practices are consistently and independently audited by Certified Humane and by some retailers.

• Maine may enhance its food-sovereignty laws. On May 13, a committee of the Maine legislature advanced a bill intended to clarify the state’s existing Maine Food Sovereignty Act. The bill would allow small unlicensed food producers who live in municipalities where food sovereignty ordinances have been passed to sell their food items directly to customers in new locations other than just the farm where the food is grown or processed.  Supporters of the bill say that it will strengthen the state’s local food economy by increasing opportunities for unlicensed home-based food businesses. Opponents, which include Maine food industry and farming groups, counter that the amendment will unnecessarily weaken regulations aimed at keeping unsafe food from finding its way into consumers’ hands.

• Alabama eases its wine and liquor delivery restrictions. Alabama Governor Kay Ivey has signed into law Act No. 2021- 188, which will allow wineries anywhere in the US to ship limited quantities of wine to Alabama consumers. Under the legislation, out-of-state wineries, but not retailers, would be allowed to ship wine to Alabama homes. In addition, separate legislation enacted earlier in the year would allow home delivery of sealed beer, wine and liquor by Alabama-based delivery services, breweries and distilleries, off-premise alcohol licensees, and establishments with on-premise restaurant retail liquor licenses, when delivered with meals.

• Nation experiences radical change in alcohol laws due to COVID-19. According to a May 21 article in The New York Times, the nation’s alcoholic beverage laws, as a result of the COVID-19 pandemic, have undergone a transformation unprecedented since the repeal of Prohibition in 1933. For example, nearly 20 states have approved measures that would continue to permit the sale of cocktails to go, even in a post-COVID atmosphere when bars have reopened and people resume indoor dining. On May 18, for example, Maryland Governor Larry Hogan signed a bill that allows restaurants to continue to sell to-go cocktails in that state. Nationwide, more than 90,000 restaurants have closed because of the pandemic, and many of those that have survived have done so because they came up with new ways to sell alcoholic drinks, including to-go cocktails.