Food and Beverage News and Trends - June 13, 2025

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

Kennedy “retires” ACIP experts. On June 9, HHS Secretary Robert F. Kennedy, Jr., announced that he is “retiring” all 17 members of the CDC’s Advisory Committee on Immunization Practices (ACIP), a government panel of independent experts who review vaccine data and make recommendations to CDC concerning eligibility and insurance coverage for vaccines. Kennedy stated, “Today we are prioritizing the restoration of public trust above any specific pro- or anti-vaccine agenda. The public must know that unbiased science – evaluated through a transparent process and insulated from conflicts of interest – guides the recommendations of our health agencies.” Dr. Jason Goldman, president of the American College of Physicians, was among many scientists responding to the firings. He stated that Kennedy’s action “circumvented the standard, transparent vaccine review process, interferes with the practice of evidence-based medicine and destabilizes a trusted source... for helping guide decision-making for vaccines to protect the public health in our country.” According to an HHS press release, ACIP is being “reconstituted” with “new members currently under consideration.” On June 9, Kennedy stated, “We’re going to bring great people onto the ACIP panel – not anti-vaxxers – bringing people on who are credentialed scientists.” On June 10, he announced the appointment of eight new members to ACIP.

Canada: Push to remove interprovincial trade barriers. The new federal government has prioritized free trade within Canada. On June 6, Prime Minister Mark Carney publicly vowed to eliminate remaining interprovincial trade barriers by July 1 through the One Canadian Economy bill now before Parliament. The measure complements a number of recent provincial initiatives. For instance, a memorandum signed in May by Ontario Premier Doug Ford and Manitoba Premier Wab Kinew commits to formalize direct-to-consumer alcohol sales by June 30. Prime Minister Carney is convening premiers to expand these agreements nationwide.

FDA infant formula expert panel. “Moms want to see more options for formula” that don’t contain seed oils, added sugars, and corn syrup, FDA Commissioner Martin Makary stated at the start of FDA’s June 4 roundtable discussion of infant formula, and, he continued, FDA may deploy its regulatory authority to encourage manufacturers to improve product formulation. Taking part in the discussion, led by Makary and Principal Deputy Commissioner Sara Brenner, were 13 external panelists with scientific backgrounds in pediatrics, nutrition, and gastroenterology, who largely concentrated on ways to improve the composition and nutritional value of infant formula. Harmonizing US standards with those of the EU and the UN’s Codex Alimentarus, many panelists said, could help the US achieve these goals. Among other topics, panelists also urged FDA to improve consumer transparency by reevaluating label claims and explored possible approaches for encouraging speed to market on improved infant formulas. In conclusion, Brenner noted that FDA will be working with its interagency partners across the Department of Health and Human Services to improve infant formula, and that this is just the beginning of its regulatory work in that regard.

FDA releases information to simplify NDIN submission process. On June 11, the FDA released two instructional videos and a supplemental fact sheet that illuminate the important aspects of the New Dietary Ingredient Notification (NDIN) process. FDA’s goal is to simplify the submission process for manufacturers and distributors, resulting in more complete NDINs submitted to FDA and facilitating scientific review.

Petition demands FTC reform its enforcement practices on health product advertising. The Alliance for Natural Health (ANH-USA), joined by nasal spray manufacturer Xlear and supplements maker Better Way Health, has petitioned the Federal Trade Commission demanding extensive reforms to FTC's enforcement practices regarding health product advertising. The strongly worded 22-page petition calls on the FTC to issue a series of orders that would change the ways it enforces its rules on health claims. Most notably, the petitioners want the FTC to end its requirement that companies conduct “multiple” randomized clinical trials (RCTs) in order to make health claims – FTC currently requires that manufacturers submit two RCTs to support their health claims. Pointing to the Constitution, the Supreme Court’s Loper Bright decision, and President Trump’s Executive Order "Ending the Weaponization of the Federal Government," the petitioners want the FTC to issue several orders that address its enforcement practices, among them one “clarifying that the FTC lacks any statutory authority to demand, and is barred by the First Amendment from demanding, that any advertiser, to avoid deceptive advertising, must possess a specific kind or quantity of evidence on hand before commencing advertising.”

Quebec’s language laws changed in early June: Here’s what you need to know. A new set of obligations under the Charter of the French Language came into force in early June, including enhanced requirements regarding the use of French on product inscriptions, public signs and posters, and commercial advertising, as well as the lowering of the threshold triggering mandatory registration with the Office québécois de la langue française. Find out more in our alert.

Has the government begun to tell the public less about foodborne illness? On May 26, the Washington Post reported that a major outbreak of E. coli, linked to romaine lettuce, occurred earlier this year but that the public was not properly informed about the possible health risks. “In what many experts said was a break with common practice, officials never issued public communications after the investigation or identified the grower who produced the lettuce,” the article said. The Post stated that the Trump Administration’s “anti-regulatory and cost-cutting push risks unraveling a critical system that helps ensure the safety of the U.S. food supply, according to consumer advocates, researchers and former employees at the FDA and U.S. Department of Agriculture.” HHS responded by stating, “Protecting public health and insuring food safety remain top priorities for HHS. FDA inspectors were not impacted by job cuts, and this critical work will continue.”

First FDA approval of a cell-cultured seafood product. On May 28, FDA sent a "no questions" letter to San Francisco-based Wildtype concerning its cell-cultured salmon, making it the first company to complete the US pre-market scientific and safety consultation product for a seafood product. Wildtype’s salmon product is cultured salmon (Oncorhynchus kisutch) cells of the mesenchymal lineage and harvested as a cell mass or paste. Wildtype’s salmon product will debut at Kann, the award-winning Haitian restaurant in Portland, Oregon, this month, and then will be offered in four additional restaurants.

OIG report on FDA domestic inspections. On June 3, HHS’s Office of Inspector General (OIG) published FDA Food Safety Inspections of Domestic Food Facilities, a report required under the Food Safety and Modernization Act. The report, which reviews data on FDA inspections carried out between FY 2017 and 2023, finds that since the start of the COVID-19 pandemic, FDA has conducted fewer food safety inspections; that it often has failed to meet required timeframes and has used its resources inefficiently, most notably by seeking to inspect thousands of facilities that were no longer in operation; and that its “identification of significant violations has decreased steadily over time.” The report, available here, includes FDA’ responses to the OIG’s observations, which conclude with a comment that, following the agency’s October 2024 reorganization it is continuing to ”streamline operations and expedite decision-making… FDA will continue to review and evaluate its policies and procedures and evaluate the timeliness of follow-up inspections.”

Whole Milk for Healthy Kids Act advances. Advancing out of a House committee last week was the Whole Milk for Healthy Kids Act, HR 649, which would restore whole milk and flavored milks to the National School Lunch and Breakfast Programs and would also allow schools to offer non-dairy alternatives. Currently, school meal programs are allowed only to provide skim and low-fat cow milk. Under the measure, schools would be allowed to offer all students non-dairy beverages, like oat or soy milks, if they are nutritionally equivalent to cow’s milk. Schools would also be required, at parental request, to provide a dairy substitute to students with disabilities – lactose intolerance is regarded by USDA as a disability. 

Federal court declares Proposition 65 warnings for acrylamide in food unconstitutional. The US District Court for the Eastern District of California on May 2 granted summary judgment in favor of the California Chamber of Commerce, holding that Proposition 65 warning requirements for acrylamide in food products violate the First Amendment. The decision has broad implications for compelled commercial speech under California’s toxics warning law. Learn more in our alert. 

Court rejects class action in case involving labeling of ghee. On May 23, the US District Court for the Northern District of California denied a motion for class certification involving allegations of false labeling of ghee, a clarified butter product, because the plaintiff failed to produce evidence that would support a class action. According to the complaint, Ancient Organics, a manufacturer of ghee, made representations on its packaging that the ghee “is the very best fat one can eat” and that one should “use this superfood to nourish your mind, body and soul,” among other representations. The court found, among other things, that the plaintiff had failed “to proffer any common evidence” reflecting that “a reasonable consumer would have been deceived by the ghee product’s alleged mislabeling.” Commonality of the issues is a requirement for certification of a class action.

Oregon’s SB 551 ends use of most plastic film bags at checkout. On June 5, Oregon Governor Tina Kotek signed SB 551, which will eliminate the use of bags made of plastic film in restaurants and stores in Oregon. The measure moves beyond Oregon’s existing ban on thin single-use plastic bags to effectively ban most plastic film bags at checkout – exceptions are allowed for certain groceries, such as bulk produce and raw meat, and for hardware items bought in bulk, such as nails. For shoppers who need a bag, restaurants and stores will be required to sell reusable paper bags made of at least 40 percent post-consumer fiber, 40 percent non-wood renewable fiber, or a combination of the two totaling 40 percent of the bag’s materials. SB 551 expands Oregon’s suite of laws addressing plastics – the state already bans polystyrene in food packaging and its extended producer responsibility law, affecting food service ware, packaging materials, and printing and writing paper, goes into effect next month. SB 551 becomes effective on January 1, 2027.

Eggs are recalled in several states due to Salmonella contamination. On June 6, more than 1.7 million eggs were recalled across multiple states after an outbreak of Salmonella that was traced to August Egg Company, based in Hilmar, California. As of that date, a total of 79 people from seven states had reportedly fallen ill in the outbreak; 21 of them have been hospitalized. The outbreak is being investigated by California health authorities and by the Centers for Disease Control and Prevention and the Food and Drug Administration.

Consumer trends show a steep rise in the purchase of non-alcoholic drinks in Canada. Non-alcoholic beverages are capturing an increasingly significant share of the beverage market in Canada. The Liquor Control Board of Ontario (LCBO) has reported that revenue from non-alcoholic (NA) products nearly doubled from 2023 to 2024, reaching $10 million. NA sales have increased by 189 percent since 2022. Projections for the market’s growth indicate a steady rise in popularity, with the NA wine segment alone projected to see a compound annual growth rate (CAGR) of 11.4 percent from 2024 to 2030. As the fastest expanding market in North America, Canada’s NA wine market is forecast to reach USD49.8 million by 2030. 

Avian flu update.

• On May 28, the Department of Health and Human Services cancelled Moderna’s $590 million award to develop a candidate mRNA vaccine for humans against H5 avian influenza, as well as other prepandemic vaccines. In its May 29 press release announcing the cancellation, Moderna reported positive phase 1/2 clinical trial findings of its candidate vaccine; the study involved 300 healthy adults who each received two doses. “While the termination of funding from HHS adds uncertainty, we are pleased by the robust immune response and safety profile observed in this interim analysis of the Phase 1/2 study of our H5 avian flu vaccine and we will explore alternative paths forward for the program,” stated Moderna CEO Stéphane Bancel.
  
  
• The Canadian Food Inspection Agency (CFIA) reports that the outbreak of H5N1 at the Universal Ostrich Farm in British Columbia involves a unique strain “not seen elsewhere in Canada.” The strain found at the farm, CFIA discovered, is a novel D1.3 genotype previously seen in an infected farmworker in Ohio. The site around the farm continues to be the focus of protestors seeking to protect the surviving ostriches. The regional government recently passed a motion stating that it will not accept the birds' carcasses at landfills until the CFIA conducts more tests on the birds and publicizes the results. It has been reported that the union representing the involved CFIA employees has raised concerns about intimidation and threats made against its members. Meanwhile, CFIA has confirmed that it will proceed with depopulation of the remaining flock, emphasizing that culling infected birds infected with avian flu is standard practice to protect public health and export markets. The owners of Universal Ostrich Farms have said they will appeal the decision of the Federal Court that sought to allow the culling to proceed. See some of our earlier coverage of this story here.
  
  
• Three commercial farms in Arizona, among them the massive Hickman Family Farms egg-laying operation, have been struck with H5N1. At the Hickman farm, six million chickens are being euthanized – about 95 percent of the company’s birds. The company, the largest egg producer in the southwest US, estimates that sanitization, cleanup, and re-population will take up to two years.
  
  
• A research letter published in the June issue of Emerging Infectious Diseases, a peer-reviewed CDC journal, concludes that the strain of H5N1 that infected a Michigan farmworker last year is capable of airborne transmission. Working with ferrets, “the standard animal model for influenza virus risk assessments,” the scientists found that 50 percent of the animal subjects became infected with H5N1 through respiratory droplets. “Because avian H5N1 viruses cross the species barrier and adapt to dairy cattle, each associated human infection presents further opportunity for mammal adaption. This potential poses an ongoing threat to public health.
  
  
• In late May, Senator Jack Reed (D-RI) introduced the Ending Taxpayer Support for Big Egg Producers Act, S 1904, which would require egg producers to obtain certain certifications in order to receive federal indemnification or compensation for poultry flocks affected by H5N1 Under the bill, a covered entity that receives government compensation for costs associated with an H5N1 outbreak would be barred from paying “ dividends with respect to its common stock, or repurchase an equity security of the covered entity or a parent company of the covered entity that is listed on a national securities exchange, during the 2-year period following the receipt of the indemnity or compensation.” Covered entities are defined as egg producers with at least $10 million in annual revenue and 1,500 employees. This bill is in the earliest stages.
  
  
• A study of unpasteurized cow and sheep milk by a team of UK scientists has found that “substantial viral infectivity remained over periods when people might reasonably be exposed to infected milk – for over a day at room temperature and for more than 7 days when refrigerated.” Stability of influenza viruses in the milk of cows and sheep was published on May 28 on the preprint server medRxiv and at this writing has not yet been peer reviewed.
  
  
• Speaking at the World Organization for Animal Health in Paris on June 6, Brazilian Agriculture Minister Carlos Favaro called for a global-level debate on vaccination of poultry against bird flu, proposing that Brazil host a global conference on animal health which, he said, would be the ideal venue for such a discussion. In recent days, Brazilian health authorities have ruled out suspected occurrences of H5N1 at a number of commercial operations in Rio Grande do Sul state, where the country’s sole commercial outbreak occurred in mid-May. That outbreak triggered a swift, far-reaching biosecurity response by the government; on June 4, Favaro stated that the government had efficiently contained the bird flu outbreak. At this writing, numerous countries’ bans on exports of Brazilian chicken products remain in place. Brazil is the world’s leading exporter of chicken.