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 approves new blue food coloring. On September 2, the FDA approved for use in food a new color additive, Natural Blue, made from the butterfly pea flower, a plant native to Southeast Asia. Sensient Technologies, the manufacturer, described the approval as “a major milestone for the food industry” that “closes an important gap in the natural color palette.” The manufacturer said the additive is heat stable and water soluble and can be used in a wide variety of applications, including alcoholic and nonalcoholic drinks, coffee, frozen dairy desserts, yogurt, chewing gum, coated nuts and candy.
• FSIS solicits public comment on labeling of cell-cultured meat. On September 2, the USDA’s Food Safety and Inspection Service published a notice of rulemaking to solicit comments on the labeling of meat and poultry products made from cultured cells derived from animals. These comments will help FSIS develop its plans to regulate the labeling of such food products. Sandra Eskin, USDA Deputy Under Secretary for Food Safety, called the notice “an important step forward in ensuring the appropriate labeling of meat and poultry products made using animal cell culture technology.” In 2019, the USDA and FDA agreed to jointly oversee the production of human food products made using animal cell culture technology: the FDA will oversee cell collection, growth and differentiation, then transfer oversight at the cell harvest stage to FSIS, which will oversee harvest, processing, packaging and labeling. FSIS has already received thousands of comments on this topic following a joint public meeting with the FDA in 2018 as well as two petitions for rulemaking it received from the Harvard Law School Animal Law and Policy Clinic and the US Cattlemen’s Association. The comment period will be open until November 2.
• FDA says its survey points to no danger to consumers from PFAS chemicals. On August 26, the FDA released the results of its first formal survey of the possible presence of per- and polyfluoroalkyl (PFAS) substances in nationally distributed processed foods, including several processed baby foods. The information was collected from the FDA’s Total Diet Study, which monitors the levels of nutrients and contaminants in foods consumed in the United States. PFAS are chemicals that are used in a number of consumer and industrial products because of their resistance to grease, oil, water and heat. The results of the survey showed that 164 of the 167 foods tested had no detectable levels of PFAS. Based on the best available current scientific evidence, the FDA said, it possesses no evidence indicating that the levels of PFAS found in the samples tested indicate a need to avoid any particular food. Several consumer groups have recently pointed to possible serious harm resulting from the presence of PFAS chemicals in food.
• Coalition argues for new approach to food safety in poultry. In a letter sent September 2 to Secretary of Agriculture Tom Vilsack, a coalition of consumer groups, illness survivors, poultry industry leaders, academics and other food safety leaders requested a meeting with the secretary to argue for a modernized, science-based regulatory approach to ensure the safety of poultry products. The signers included representatives of poultry producers Butterball, Perdue Farms, Tyson Foods, and Wayne Farms as well as four major nonprofits – the Center for Science in the Public Interest, Consumer Federation of America, Consumer Reports, and Stop Foodborne Illness. The letter asked the USDA to create safety standards for poultry that are “objective, risk-based, achievable, enforceable and flexible.” It noted that “science tells us that current performance standards do not effectively target the particular types of Salmonella and the levels of bacteria that pose the greatest risks of illness, and the overall regulatory framework does not adequately harness modern tools for preventing and verifying control of the bacteria that are making people sick.”
• CDC warns against consumption of Fratelli Beretta antipastos. On August 26, the CDC issued a food safety alert regarding a multistate outbreak of Salmonella infections that may have resulted from the consumption of Fratelli Beretta brand uncured antipasto trays. The FDA said that 36 people have been reported sick in a total of 17 states, and 12 of them have been hospitalized. Interviews and documents showed that most of these people ate Fratelli Beretta brand uncured antipasto trays before they got sick. The CDC is advising people to not eat that brand of prepackaged uncured antipasto trays. The trays can include uncured salami, prosciutto, coppa, or soppressata. Sold nationwide, they have “best by” dates on or before February 11, 2022.
• Four senators push for stronger national-origin labeling for beef. On September 8, four US senators, two Republicans and two Democrats, introduced a bill that would restore a COOL (country of origin labeling) requirement for beef and beef products sold in the United States. In 2015, Congress repealed the COOL requirement for beef and pork after a series of rulings by the World Trade Organization targeted the law.  At present, beef can be labeled as a product of the United States even if it is only processed here but not raised here. Said Senator John Thune (R-SD), one of the bill’s sponsors, “Transparency in labeling benefits both producers and consumers. Unfortunately, the current beef labeling system in this country allows imported beef that is neither born nor raised in the United States, but simply finished here, to be labeled as a product of the USA. This process is unfair to cattle producers and misleading for consumers. When you see a ‘product of the USA’ label on the grocery store shelf, it should mean just that.” The other sponsors of the bill are Jon Tester (D-MT), Mike Rounds (R-SD) and Cory Booker (D-NJ).
• California moves to legalize cocktails to go, but. On September 9, the California State Assembly passed a bill to permit cocktails to go on a more permanent basis. The bill now goes to the governor for approval, which is expected.  But industry observers are noting that amendments added to the final bill in recent days have added new restrictions which will not do much to help California’s struggling bars and taverns.   Among these new restrictions, all drinks must be sold along with a “bona fide meal”; there is a limit of two drinks per meal -putting an end to the thriving sale of large-batch mixed drinks; and cocktails to go are permitted for pickup only, not for delivery. Finally, the bill is effective only through the end of calendar year 2026. “This bill is not a cause for celebration,” said Ben Bleiman, president of the SF Bar Alliance. The bill still allows restaurants to sell wine and beer in their original packaging along with a delivery meal.  A separate bill aiming to extend the sale of alcohol in “parklets” – outdoor spaces approved by local jurisdictions – is currently moving through the legislature.
• Appeals court rejects appeal by pet food maker on Salmonella warning. On September 3, the US Court of Appeals for the Tenth Circuit rejected a challenge by Lystn, a maker of raw pet food, to an FDA ruling that effectively bans from the market all pet food that contains any quantity of Salmonella. The appeals court ruled that Lystn’s arguments failed because the company was not challenging any final agency action. Lystn contends that the quantity and nature of any Salmonella in its pet food is not harmful to humans and thus challenged the FDA’s alleged “nationwide zero-tolerance standard for Salmonella presence in pet food that is unsupported by science.” It also claimed that the FDA’s action was beyond the agency’s legal power. The appeals court, however, agreed with a lower court that the Compliance Policy Guide under which the FDA acted against Lystn provided guidance only and that the FDA’s action against the company, in the form of a public warning letter, was not a final agency action subject to review by the courts.
• Kellogg’s is hit with class action complaint over its Strawberry Pop Tarts. On August 21, a class action complaint was filed in the US District Court for the Southern District of Illinois against the Kellogg Sales Company, alleging that Kellogg’s Strawberry Pop Tarts are mislabeled because the label gives consumers the impression that the fruit filling contains a greater relative and absolute amount of strawberries than it actually does. The ingredients list on the Pop Tarts package indicates that the product actually contains 2 percent or less of strawberries. The complaint says that as a result, the product “is unable to confer any of the health-related benefits of strawberries because the amount of strawberry ingredients is insufficient to provide the benefits of these fruits” and that the product “cannot provide a true strawberry taste, because these attributes are overwhelmed by the significant amounts of pears and apples compared to strawberries.”
• Parnells seek to have sentences vacated. Brothers Stewart Parnell and Michael Parnell have submitted their final written arguments to the US District Court for the Middle District of Georgia as they seek to have their sentences vacated.  In 2015, Stewart Parnell of the now-defunct Peanut Corporation of America was sentenced to 28 years in prison for knowingly selling salmonella-tainted peanut products, and Michael Parnell, a peanut broker, was sentenced to 20 years.  The Parnells’ actions resulted in a massive nationwide salmonella outbreak in 2008 and 2009 linked to hundreds of illnesses and the deaths of 9 people; it led to one of the largest food recalls in US history. Their sentences are the harshest ever handed down in a food safety case. Prosecutors had sought life in prison for Stewart Parnell, who was convicted of more than 70 criminal charges. The Parnells are seeking their freedom under Section 2255, a Writ of Habeas Corpus, alleging that their original attorneys were incompetent. The brothers remain incarcerated in federal prison – Stewart in West Virginia and Michael in New Jersey.
• Op-ed argues against changes in food labeling. An op-ed article published in the Detroit News on August 30 contends that current efforts by Congress to improve food labeling will likely be counterproductive. Although Congress wants to “tinker” with food labels, Richard Williams of the libertarian-leaning Mercatus Center at George Mason University wrote, “much of what they want to do is not consistent with current science.” Williams, a former FDA official, wrote that the recently proposed Food Labeling Modernization Act of 2021 would be the first legislative update for the food label since 1990. “Yet with more than 40% of Americans now obese,” Williams wrote, “and with that figure expected to rise to 50% by 2030, it seems like the food labels simply aren’t working. And that increase in obesity will bring with it increased cases of diabetes, heart disease and cancer.” Williams also contended that any effort to define the term “natural” is misguided since virtually all food comes from “man-made technologies.”