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.

• Hahn steps down as FDA commissioner in presidential transition. On January 21, the day after Inauguration Day, Dr. Stephen Hahn resigned as commissioner of the FDA, and Dr. Janet Woodcock was named acting commissioner. Hahn’s resignation was expected because officials at his level normally step down as part of a presidential transition. A permanent FDA commissioner has not yet been nominated by the Biden Administration, but Woodcock is one of the candidates under consideration, according to transition team members. Former FDA Commissioner David Kessler is expected to play a role in selecting a permanent commissioner, as are White House COVID coordinator Jeff Zients and Biden chief of staff Ron Klain.
• Under new agreement, USDA will oversee safety of gene-edited animals. In an agreement completed on January 19, the last full day of the Trump Administration, the Department of Health and Human Services agreed to a plan proposed by the USDA that will give the USDA jurisdiction over safety issues concerning animals produced for food using gene editing. The FDA, a part of HHS, will have jurisdiction only over a small segment of gene-edited products not related to agriculture. The agreement was made over the objections of the FDA. Animal-industry groups have long supported the idea of USDA oversight of gene-edited animals. Outgoing Agriculture Secretary Sonny Perdue lauded the agreement as “putting American producers on a level playing field with their competitors around the world.”
  
• FDA enters consent order with juice-producing company. On January 15, the FDA entered a consent decree with Valley Processing of Sunnyside, Washington and its owner, Mary Ann Bliesner, regarding adulterated juice products that were distributed to federal school lunch programs. The decree requires Valley Processing to stop distributing the adulterated juice products until it complies with the Federal Food, Drug and Cosmetic Act. The decree was pursued after the FDA found inorganic arsenic and patulin toxins in some Valley Processing products, at levels high enough to pose health risks.  FDA investigators also observed that the company processed juice under unsanitary conditions and failed to adhere to relevant food safety standards. Valley Processing represented that as of the time of the consent decree, it had shut down its operations and sold its assets.  However, the consent decree prevents its owner from restarting operations without authorization from the FDA.
• USDA is petitioned to address dangerous bacteria in slaughterhouses. Four consumer advocate groups have banded together to petition the USDA to address Salmonella and Campylobacter contamination of poultry by putting in place “enforceable standards” for slaughterhouses. The petition from the Center for Science in the Public Interest (CSPI), the Consumer Federation of America, Consumer Reports and Stop Foodborne Illness calls on the USDA to require slaughterhouses to control supply chain risks by following best practices for food safety, which they say will lessen exposure to specific dangerous strains of these bacteria. The petition also asks the agency to require slaughterhouses to adopt science-based tools, such as vaccinating live poultry and monitoring farms - practices which have been in effect for years in Europe, helping to bring about substantial declines in foodborne illness rates. Brian Ronholm, director of food policy for Consumer Reports and former USDA deputy undersecretary for food safety, said, ““A science-based approach is imperative to identifying the measures and controls that will help reduce foodborne illness rates linked to Salmonella and Campylobacter. “We must leverage FSIS’ public health expertise, available science, and industry best practices in order to fully protect consumers.”
• Safety of MSG is challenged in petition before FDA. The nonprofit Truth in Labeling Campaign filed a petition with the FDA on January 12 contending that monosodium glutamate (MSG) should be removed from the FDA’s Generally Recognized as Safe (GRAS) list. The group asserts that MSG is a neurotoxic, brain-damaging ingredient and that the FDA, by keeping it on the GRAS list, is treating it in the same manner as baking soda. The human body the petition says, processes naturally created glutamate in a different manner from manufactured glutamate. In an interview in the January 19 issue of Food Navigator, a spokesperson for Ajinomoto, a major Japanese company that manufactures MSG, said MSG is metabolized by the body in the same way regardless of its origin and that a large number of studies show MSG is safe for humans.
• CSPI asks for action against opiate-laced poppy seeds. A study published January 12 in the journal Clinical Toxicology warns that the number of adverse health events from the consumption of opiate-laced poppy seeds may be increasing. The nonprofit Center for Science in the Public Interest noted that poppy seeds may be dangerous to consumers, especially those who make poppy seed tea. The group reported that according to the study, while the seeds themselves do not generally contain high levels of opiates, they can become contaminated with plant debris during harvest and require washing and processing to reduce the opiate contents to safe levels – and that not all manufacturers process the seeds properly. The group asked the FDA and the Drug Enforcement Agency to crack down on the sale of potentially contaminated poppy seeds.
• New honey-labeling law in Vermont galvanizes its honey industry. Beekeepers in Vermont are organizing in support of enforcement of a new state law that took effect on January 1 concerning the marketing of honey. Under the new law, honey producers are not allowed to market honey that was made out of state as Vermont-made. Notably, the law can be enforced only through a complaint to the state attorney general by a consumer or a beekeeper. Andrew Munkres, the president of the Vermont Beekeepers Association, said the group provided some input to state legislators on the wording of the law. Its effectiveness, he said, will depend entirely on the state’s follow-through. “It all depends on the enforcement now,” he said. “People will continue packing honey from out of state and putting their label on it.”
• Chobani sued over sugar content of some of its yogurts. On December 31, two New York consumers filed a class action lawsuit against the Chobani company, asserting that the labeling on some types of Chobani yogurt misleads consumers by claiming it contains substantially less sugar than other yogurt products. Specifically, the complaint, in the US District Court for the Southern District of New York, contends that Chobani’s “Less Sugar” line of Greek yogurt has labels that say that the product contains “45% less sugar than other yogurts.” According to the complaint, however, there are indeed several yogurts that have sugar contents that are quite close to the sugar content of Chobani’s “Less Sugar” line. For example, yogurts made with stevia, a non-nutritive sweetener, contain less sugar than the other yogurts Chobani used as comparisons. The lawsuit says consumers generally include products made with non-nutritive sweeteners as appropriate comparisons for products made with nutritive sweeteners such as sugar or honey and that Chobani’s comparison is misleading.
• Almond milk vanilla-labeling case is dismissed. On January 19, the US District Court for the Southern District of New York dismissed one of many current cases concerning allegations of deceptive marketing of a product with a “vanilla” label designation. The plaintiffs had alleged that consumers would conclude from the name of the product, Full Circle Market Vanilla Almondmilk, that it was made exclusively with vanilla from the vanilla plant. In granting Topco Associates LLC’s motion to dismiss, the court found that the plaintiffs had failed to show that a reasonable consumer would come to this conclusion. The label “vanilla,” the court found, would normally be understood to refer to the taste of the product, not the source of its ingredients. The plaintiffs were granted leave to amend their complaint, if they have a good-faith basis for doing so.