Food and Beverage News and Trends - May 16, 2025

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

FDA approves three color additives derived from natural sources. In order to “expand the palette of available colors from natural sources for manufacturers to safely use in food,” the FDA announced on May 9 that it has approved three new color additives derived from natural sources. They are (1) butterfly pea flower extract, which can be used to create lively blues, purples, and greens – this coloring already has been used for some time in some beverages and sweets, and is newly approved for use in an array of crackers, pretzels, chips, and ready-to-eat cereals; (2) Galdieria extract blue, derived from the red microalgae Galdieria sulphuraria and described as an acid-stable intense blue, for use in foods and beverages; and (3) the mineral compound calcium phosphate, approved as a white coloring for use in candies, donuts, and ready-to-eat chicken products. As we reported earlier this month, Health and Human Services (HHS) Secretary Robert F. Kennedy, Jr. intends “to phase out all petroleum-based synthetic dyes from the nation’s food supply,” eliminating the last eight approved synthetic food dyes from US manufacturing.

Should nutritional requirements for infant formula be revised? New RFI from FDA. FDA has issued a Request for Information (RFI) as it seeks to determine if the nutritional requirements for infant formula should be revised. The most recent comprehensive assessment of such nutritional requirements took place in 1998. Among the questions the agency is raising, it is asking what new scientific data should be considered regarding nutrient requirements for healthy, full-term infants that are associated with positive short- and/or long-term health outcomes; which nutrients already required by 21 CFR 107.100 should be reviewed; and what other nutrients should be added to, or removed from, 21 CFR 107.100. The RFI is part of Operation Stork Speed, an initiative launched in March this year to expand options for safe, reliable, and nutritious infant formula sold in the US. Comments to the RFI are due by September 11, 2025.

Canada unveils tariff relief for food and beverage sector amid US trade dispute. The Department of Finance Canada has announced a temporary six-month remission of tariffs on US-origin goods used in Canadian food and beverage packaging and processing. The measure, part of a broader response to escalating US trade actions, is intended to provide short-term cost relief while businesses adjust their supply chains. The government also confirmed the launch of the Large Enterprise Tariff Loan Facility, offering liquidity to large firms – including those critical to national food security – that are facing hardship in accessing traditional marketing financing. Eligibility is contingent on maintaining domestic operations and pre-dispute viability. “We’re giving Canadian companies more time to adjust their supply chains and become less dependent on US suppliers,” said Finance Minister François-Philippe Champagne.

Ontario and Manitoba pledge to reach a deal on direct-to consumer alcohol sales. The Premiers of Ontario and Manitoba signed a memorandum of understanding (MOU) on trade on May 14, 2025 stating that a bilateral agreement will be reached by June 30 on the subject of direct-to consumer alcohol sales. This is part of efforts to liberalize alcohol sales between most provinces of Canada - efforts triggered by the tariffs imposed on Canadian goods by the US Administration.

Kennedy says coming Dietary Guidelines for Americans will address school meals. During a recent Cabinet meeting, Secretary Kennedy stated that the Trump Administration is expediting its ongoing efforts to overhaul the country’s official nutrition advice, in part so that major changes can be made to the federal school meals programs. Kennedy noted that HHS and the USDA, which jointly issue the Dietary Guidelines for Americans every five years, have until December 2025 to get the 2025 edition out. “But we are working very very fast together, we’re going to get it done by the end of the summer in time to drive major, dramatic changes in the school food, the school lunch programs over the next school year,” Kennedy said during the meeting. He also said that 70 percent of the food served in school meals is ultra-processed food.

DOJ says USDA’s purged climate and farm support pages will be restored. On May 12, the Department of Justice told the US District Court for the Southern District of New York that the numerous climate, conservation, and agricultural support resources that were removed from its website on January 31 this year will be restored. The return of the purged pages is the result of a lawsuit filed in the SDNY in February by a coalition of agricultural and environmental advocacy groups. In a letter to the court, the DOJ stated that the purged USDA content – a vast swathe of materials about conservation practices, rural clean energy, climate-smart farming, and access to federal loans – would be fully restored in about two weeks. The DOJ also said that, going forward, “USDA commits to complying” with such federal laws as the Freedom of Information Act and “the adequate-notice and equitable-access provisions of the Paperwork Reduction Act.” See our earlier coverage of this story here.

FDA to expand surprise inspections of foreign facilities. Every year, the FDA carries out an estimated 3,000 inspections, in more than 90 countries, of foreign manufacturing facilities that produce foods, medicines, and medical products for American consumers. This is in addition to the agency’s more than 12,000 annual inspections of domestic food and drug manufacturing sites. However, while inspections carried out in the US are often unannounced, foreign facilities are given advanced warning of a coming inspection, typically weeks ahead. On May 6, the FDA announced that it will expand the use of unannounced inspections at such foreign manufacturing facilities. FDA Commissioner Martin A. Makary, MD, stated, “For too long, foreign companies have enjoyed a double standard - given advanced notice before facility inspections, while American manufacturers are held to rigorous standards with no such warning. That ends today. This is a key step for the FDA as part of a broader strategy to get foreign inspections back on track.” An agency press release noted that, even when foreign manufacturing facilities receive early warning of a coming inspection, FDA inspectors still find “serious deficiencies more than twice as often” as in US inspections. The expanded use of unannounced inspections is part of a larger evaluation of the foreign inspection program, which, the press release states, will also aim to clarify “policies for FDA investigators to refuse travel accommodations from regulated industry.”

USDA accepts 15,000 resignations but now says it needs to staff up. On May 4, Politico reported that at least 15,000 employees of the USDA have accepted the Trump Administration’s offers to resign. An official USDA readout prepared for Agriculture Secretary Brooke Rollins’ recent congressional testimony noted that 555 employees at the department’s Food Safety and Inspection Service accepted the offer to resign. Rollins said in her testimony May 6 and 7, however, that the department is now looking to fill positions “that are integral to the efforts and the key frontlines.”

FDA reverses dismissal of food-safety staffers. Federal health officials have reportedly reversed the decision to fire a few dozen scientists at the FDA’s food-safety labs and said that they are conducting a review to determine whether other critical posts were cut. A spokesman for HHS said that these employees had been inadvertently fired because of inaccurate job classification codes. In the last few months, roughly 3,500 jobs at the FDA, or about 20 percent of its work force, have been eliminated, representing one of the largest workforce reductions among all the government agencies targeted by the Trump Administration. Later in the month, more than 20 of the agency’s travel staff, who handle travel bookings for safety inspectors, were also said to be reinstated.

FDA extends comment period on Nutrition Info FOP label. The comment period for the proposed FDA rule Food Labeling: Front-of-Package Nutrition Information is being extended by 60 days. The proposed rule, first announced on January 15, 2025, would require most packaged foods to bear a simple, prominent front-of-package (FOP) nutrition label – which the agency has dubbed the Nutrition Info box – that sets out the saturated fat, sodium, and added sugar content of a food and says whether that content is “Low,” “Med,” or “High.” Manufacturers would also have the option of listing calorie content in the box. The Nutrition Info box would be in addition to the extant Nutrition Facts label that is already required for most US packaged foods. Comments on the proposed rule are now due by July 15, 2025.

Nutrition Regulatory Science Program announced. On May 9, the FDA and National Institutes of Health announced the Nutrition Regulatory Science Program, a joint research initiative created, according to an NIH press release, to address the diet-related chronic diseases crisis and “provide critical information to inform effective food and nutrition policy actions to help make Americans’ food and diets healthier.” Through the initiative, the agencies stated, FDA and NIH will work together on “a comprehensive nutrition research agenda” studying such concerns as the effects on human health of ultra-processed foods and food additives. According to FDA Commissioner Martin A. Makary, MD, the model for the initiative was “the highly successful FDA and NIH Tobacco Regulatory Science Program.” The Nutrition Regulatory Science Program, he continued, will allow the agencies to focus “on the greatest contributors to the staggering health care crisis: chronic diseases.” NIH Director Jay Bhattacharya, MD, PhD, stated, “By teaming up with the FDA, we’re taking a major step toward answering big questions about how food affects health – and turning that science into smarter, more effective policy.”

Latest CORE report on foodborne outbreaks in the US. On May 5, the FDA’s Coordinated Outbreak Response & Evaluation (CORE) Network released its CORE 2023 Annual Report: Investigations of Foodborne Outbreaks and Adverse Events in FDA-Regulated Foods. In 2023, the report states, the CORE Signals and Surveillance Team evaluated 69 incidents – potential outbreaks, confirmed outbreaks, and adverse events – initiating 25 responses to outbreaks that appeared to be caused by an FDA-regulated human food. Ultimately, as a result of these investigations, in 2023 FDA issued 10 public health advisories notifying the public of multistate outbreaks of foodborne illnesses or adverse events. The report also provides more detail about individual FDA regulatory and enforcement actions arising from CORE’s investigations and looks at trends in foodborne outbreaks that emerged in 2023. See the report here.

California bill would require testing prenatal vitamins for toxic metals. California’s SB 646 has moved out of the Senate Environmental Quality Committee. The measure would require manufacturers of prenatal vitamins to test representative lots of their products for the presence of arsenic, cadmium, lead, and mercury, and to publicly disclose the test results on the company website. Vitamin package labels would also need to carry a QR code linking both to those results and to an FDA web page “where consumers can find the most recent FDA guidance and information about the health effects of the toxic elements on fetuses, infants, children, and individuals who are pregnant, planning to become pregnant, or breastfeeding,” along with this notice: “For information about toxic element testing on this product, scan the QR code.” The bill would also ban the sale in California of prenatal vitamins that do not comply with its requirements. Should SB 646 become law, California would be the first state in the nation to mandate testing of prenatal vitamins for toxic metals and to require disclosing the test results.

Oklahoma legislature approves bill for labeling of plant-based proteins. On May 1, the Oklahoma state Senate passed a bill that would require food manufacturers to label products that come from plants or insect proteins as such rather than identifying them as “meat.” The bill, which earlier in this legislative session passed the state House, moves to the governor’s desk following a 40-7 vote. “People should know where their food comes from,” said a chief Senate sponsor. “If it comes from insect proteins, plant products, a Petri dish, no matter where it comes from, this legislation would make sure it’s labeled correctly so people will know what they are consuming. We have to maintain a safe food supply.” Under the bill, the burden of proof of a food’s contents would be upon the manufacturer, not the retailer. Any violation of the law would constitute a misdemeanor.

Daly v. The Wonderful Company LLC: Key considerations for consumer product contaminant litigation. The US District Court for the Northern District of Illinois has issued a significant decision in a putative class action alleging that Fiji Water’s “Natural Artesian Water” labeling was deceptive due to purported microplastic contamination. This ruling provides important considerations for companies facing similar claims, particularly in the context of microplastics and nanoplastics. See our alert.

Court challenge to Florida law against cultivated meat survives. The US District Court for the Northern District of Florida is keeping alive a lawsuit against the state’s first-in-the-nation ban on lab-grown meat. The suit, brought by Upside Foods, a cultivated meat company, and the Institute for Justice, argued in part that the law violates the Constitution’s Commerce Clause by shielding in-state producers of conventional meat from competition from out-of-state producers of cultivated meat. While the court dismissed other arguments brought by the plaintiffs, that part of the challenge survives. Uma Valeti, Upside’s CEO, stated, “Upside is not looking to replace conventional meat, which will always have a place at the table. All we are asking for is the right to compete.” In June 2023, Upside Foods received regulatory approval from the USDA for the label it plans to use for its cell-cultivated chicken.

Study points to possible link between ultra-processed foods and Parkinson’s. On May 7, a new study in the journal Neurology said that consuming ultra-processed foods like breakfast cereals, soft drinks, hot dogs, and ketchup appears to increase a person's risk of developing Parkinson’s disease. The researchers reported that people who ate about 11 servings of ultra-processed foods per day had a 250 percent greater risk of developing three or more early symptoms of Parkinson's than those who ate the least amount, researchers reported in the scientific journal. The article concluded that more studies are warranted to confirm whether lowering the consumption of ultra-processed foods may prevent the occurrence of certain symptoms that often precede a diagnosis of Parkinson’s disease. The study was conducted by researchers at the Fudan University Institute of Nutrition in Shanghai.

Avian flu update.

• In the 30 days leading up to May 9, the USDA’s Animal and Plant Health Inspection Service has reported 33 more detections of H5N1 avian flu in dairy herds in Arizona, California, and Idaho, and 2 more detections in commercial poultry flocks in Ohio and South Dakota, leading to the culling of about 926,900 birds.
  
  
• Around the world, the word most often seen this week in media coverage of H5N1 is “urgent.” The Global Virus Network (GVN), a nonpartisan consortium of the world’s top virologists, has called for “urgent, proactive measures” on a global scale to prevent an H5N1 pandemic in humans. Writing in The Lancet Regional Health – Americas, the GVN authors review the current status of avian flu around the world, then go on to urge world leaders to implement a ten-point plan, a multifaceted strategy that could prevent a widespread outbreak of H5N1 among humans or mitigate the dangers of an emerging pandemic. Among the interrelated points in that plan: enhancing biosecurity and biosurveillance measures, rapidly developing and stockpiling new vaccines, and, crucially, collaborating on an international scale to achieve a coordinated global response. See the GVN article, “Enhancing the response to avian influenza in the US and globally,” here.
  
  
• The USDA is allocating $100 million toward development of a poultry vaccine to combat H5N1. Historically, USDA has opposed use of such vaccines in poultry because many nations will not import vaccinated birds over concerns that the vaccines may mask underlying illnesses. The unrelenting spread of H5N1, however, is leading to a reevaluation of that thinking around the world. Furthermore, current vaccines require multiple doses, and the research will address that, striving to develop an effective single-dose vaccine.
  
  
• Despite ongoing bird flu activity, Canada’s domestic food supply – especially eggs and poultry products – has remained largely stable and secure. Canadian consumers have not experienced the severe egg shortages and price spikes that have hit the US over the past year. Eggs are still widely available and reasonably priced in Canadian grocery stores, even as avian flu continues to affect farms across the country. Industry experts say Canada’s farming practices have helped buffer the impact. Northern poultry barns are typically sealed up more tightly (a defense against cold and disease alike), and Canada has far fewer huge egg operations than the US – a typical Canadian egg farm has about 25,000 hens, while may US egg operations have more than a million, so a single outbreak in Canada wipes out a much smaller share of national production This decentralized biosecure approach has limited the ripple effects of H5N1 on Canada’s food supply and so far has spared Canadian consumers the extreme egg price inflation seen elsewhere.
  
  
• Deep staff and facilities cuts have led the USDA to suspend its Proficiency Testing Program, which ensures consistency and accuracy of dairy tests across the nation’s network of 170 food safety laboratories. Media coverage of the development has been confusing: both the FDA and US states are still regularly testing the US milk supply for the presence of diseases like H5N1 and tuberculosis under the 101-year-old Grade "A" Pasteurized Milk Ordinance. The Proficiency Testing Program, formerly housed in the Moffett Laboratory at Princeton University, will eventually resume in a new, as yet unidentified facility. Reportedly, plans had already been moving forward to decommission the laboratory when the vast staff and funding cuts at FDA precipitated the program’s closure.
  
  
• The Federal Court has denied a bid to prevent the culling of 400 ostriches in British Columbia. An ostrich farm in British Columbia had challenged the Canadian Food Inspection Agency (CFIA) order requiring the farm to cull its 400 ostriches by February 1, 2025 after some tested positive for avian flu in December 2024. The farm sought a judicial review of the order, arguing that the ostriches have rare genetics valuable for research. The Federal Court temporarily blocked the cull order, issuing a Stay Order while the judicial review was pending. The CFIA then filed a motion asking the Federal Court to clarify whether the Stay Order prevented the Minister of Agriculture and Agri-Food from using its authority to dispose of the ostriches. The CFIA also requested an expedited hearing for the judicial review. In February, the court denied the CFIA’s request for clarification, stating that the Stay Order was clear and did not need further explanation. However, the court agreed to expedite the judicial review process, recognizing the CFIA’s concerns about public health risks while ensuring the farm had enough time to prepare its case. The CFIA has also issued a $10,000 penalty to Universal Ostrich Farms Inc. for failing to comply with quarantine orders under the Health of Animals Regulations. On May 13, 2025, the Federal Court dismissed the two applications brought by Universal Ostrich Farm for judicial review, stating that the courts must “respect the demonstrated scientific and technical expertise of administrative agencies.” The decision considered the reasonableness and fairness of the prior decision. Recognizing that the decision is “protective rather than punitive,” compensation will be provided per animal, subject to caps as set out in the Compensation Regulations. The Court recognized both the economic and emotional losses due to the decision and expressed sympathy for the applicant. On May 14, the CFIA issued a statement about the case, Judicial review upholds Canadian Food Inspection Agency order to dispose of birds located at an infected premises in Edgewood, British Columbia.
  
  
• On May 6, the North Carolina Senate Judiciary Committee voted to approve SB 639, the North Carolina Farm Act of 2025, which among other measures would legalize the sale and distribution of unpasteurized milk in the state. SB 639 originally would have repealed North Carolina laws authorizing distribution of unpasteurized milk for personal use due to concerns about avian flu; but, in a last-minute reversal, amendments added to the bill on May 6 would instead legalize its sale and distribution. The bill now moves to the state Senate Finance Committee for further review.
  
  
• On May 9, the USDA declared the state of Vermont to be “unaffected” by H5N1 in dairy cattle, the result of Vermont’s participation in the National Milk Testing Strategy, a USDA program carrying out H5N1 surveillance of the US milk supply and dairy herds. Under the NMTS, enrolled states follow a five-stage roadmap to determine the presence of H5N1 in their dairy herds and then demonstrate how they are working to eliminate it. Forty-five US states are enrolled in the NMTS program. Only eight other US states have achieved “unaffected” status – Alabama, Colorado, Mississippi, Oklahoma, Pennsylvania, Washington, West Virginia, and Wyoming.
  
  
• A study in the journal Nature Communications concludes that “current reports on the prevalence of H5N1 dairy cattle infections are an underrepresentation of the true concentration of the disease within the United States.” The study states that “more urgent, farm-focused, biosecurity interventions and targeted surveillance schemes are needed,” in particular significant increases in herd testing, most of all in the states it identifies as at highest risk of future outbreaks this year: Arizona, Wisconsin, Florida, and Indiana.
  
  
• A systematic review of 20 years of scientific studies of avian influenza infections in felines, attracting significant media attention this week, finds a disturbing spike in the number of H5N1 infections in cat species during 2023 and 2024 (the last years surveilled). The authors of the study, scientists at the University of Maryland, reviewed reports from 2004 to 2024 concerning 12 felid species in 18 countries. They express particular concern about H5N1 infections in house cats, stating that infected cats could “provide a potential pathway for zoonotic spillover to humans.” They conclude, “We estimate that this phenomenon is underreported in the scientific literature and argue that increased surveillance among domestic cats is urgently needed.” See the study here.
  
  
• Among the consequences of deep Trump Administration cuts to USAID funding for the UN’s Food and Agriculture Organization (FAO) is the effective closure of 64 bird flu monitoring programs in 51 countries. Among them: programs carrying out surveillance of migratory birds moving from Argentina north along the Pacific coast and along the flyway through El Salvador, Guatemala, and Honduras, and programs that worked to mitigate bird flu outbreaks in key global hotspots like Vietnam and Cambodia. Data gathered from those programs has been used by US poultry farmers as an early warning system. More than 50 US agricultural organizations, such as the International Dairy Foods Association and the USA Poultry and Egg Council, have called for US funding for the FAO to be restored and urged the Trump Administration to retain its membership in the FAO. Reportedly, the funding cuts have also resulted in gaps in international programs addressing foot-and-mouth, African swine fever, and other highly contagious diseases that impact global agriculture.