Food and Beverage News and Trends - September 22, 2023

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

California legislature passes law to ban four food additives. On September 12, the California legislature passed a groundbreaking bill known as the California Food Safety Act that would ban four chemicals from use in candy, cereals, salad dressings, and other processed foods sold in the state. AB 418 would end the sale in the state of food products containing brominated vegetable oil, potassium bromate, propyl paraben, and Red Dye No. 3. This bill reflects a concern that these chemicals may be linked to serious health problems, such as a higher risk of cancer, nervous system damage, and hyperactivity. An earlier version of the bill would also have banned titanium dioxide, but amendments in the state senate removed that chemical from the ban. The FDA continues to regard all these chemicals as safe in the human diet; meanwhile, the European Union bans them all from use in food, except for Red Dye No. 3, which is permitted only in candied cherries. The bill, AB 418, now goes to Governor Gavin Newsom, who is expected to sign it.

Other states’ efforts in this direction are moving more slowly. While the California food additive bill has passed both houses of the legislature, similar bills in New York and New Jersey have not gone as far. A New Jersey bill would ban the same five additives, but it has been referred to a state assembly committee without further action, and it has no sponsor in the state senate. The legislature is still in session. A substantially similar bill has been introduced in the New York legislature and has been referred to a committee. The legislature is now in recess, having completed its 2023 session in June, and it will not convene until January 2024. At that time, the bill may be reintroduced.

Serious E. coli incidents in Calgary daycare centres. Approximately 377 lab-confirmed cases of shiga toxin-producing E. coli have been identified in Alberta over the past few weeks, the majority of them in children who attended certain daycare facilities. This has been labelled the worst outbreak of pediatric E. coli in Canadian history – Canada typically records only 440 cases of E. coli in a year. At this writing, 11 daycare centres in the Calgary area that had been temporarily closed for deep cleaning have reopened; another six are under total or partial closure; and the central commercial kitchen that serves many of the daycares remains shuttered. To date, 38 patients have been hospitalized in the outbreak, and 7 children are reported to have been receiving dialysis after developing hemolytic uremic syndrome. Alberta Health Services is continuing to investigate the outbreak and has urged parents whose children attend a closed facility to keep their children at home rather than sending them to a different daycare, to forestall further secondary transmissions.

Ten-year-old celiac sufferer files Citizen Petition with FDA on labeling of gluten. On September 13, a ten-year-old celiac disease activist filed a Citizen Petition with the FDA calling on it to label gluten as a major food allergen. The petition, according to the group Celiac Journey, “is requesting a long-overdue reckoning by the FDA to better protect more than 3.3 million Americans with Celiac Disease by labeling Gluten (Wheat, Barley, Rye and Oats) as a Major Food Allergen on all packaged foods in the U.S., just like labeling Gluten is done in more than 85 other countries.” The young man, Jax Bari, had met with President Joe Biden in 2022, sharing his experiences with celiac disease and asking the President to help protect him and other sufferers by labeling products that contain gluten. According to the celiac activist organization, “the Citizen Petition is actionable now under the FDA’s existing authority in the Food Allergen Labeling and Consumer Protection Act.”

Canada Bread banned from federal contracts. The Canadian federal government has added Canada Bread to its list of Ineligible and Suspended Suppliers under the Integrity Regime after the company was found guilty of price-fixing. In June this year, the company was fined CA$50 million after pleading guilty to four counts of price-fixing – the company admitted that, a decade ago, it had arranged price increases with Western Foods for an array of popular bakery products. It is ineligible to be awarded a contract or real property agreement by the federal government until August 22, 2033. Canada Bread previously held contracts with Canada’s Defence Department and Fisheries and Oceans Canada.

Supplement industry says FTC acted beyond its regulatory powers. On September 15, leaders of nutritional supplement trade groups filed a citizen petition with the Federal Trade Commission (FTC) declaring that in their opinion, the FTC’s use earlier this year of its authority to file a Notice of Penalty Offense Concerning Substantiation of Product Claims was unlawful. The FTC’s notices, sent to about 700 companies, reminded those companies that they are required to have an objective basis to support their product claims and that they can face significant civil penalties if they fail to adequately support their claims. The groups wrote, “Because the Notice has no legal effect, it is merely threatening companies for engaging in permissible and truthful promotion of products. The chilling effect caused by the Notice thus keeps true and not misleading scientific information away from consumers.”

FDA tells consumers not to eat some possibly contaminated mussels. The FDA, on August 30, issued a warning advising consumers not to eat and restaurants and food retailers not to sell and to dispose of certain cultured mussels from East River Shellfish, Inc. that were harvested on August 14 and shipped on August 15 to retailers in Illinois, Massachusetts, and New York, all because of the possible presence of Salmonella and E. coli. Contaminated mussels can cause illness if eaten raw, particularly in people with compromised immune systems. Consumers of these products who are experiencing symptoms of salmonellosis or E. coli should contact their healthcare provider, who should report their symptoms to their local Health Department, the FDA said. The FDA’s action came after the Canadian Food Inspection Agency discovered the contamination during routine testing om August 21.

Head of supplements group calls for FDA to act on NMN petition. The FDA has been unable to reach a decision on the requests made in a Citizen Petition about nicotinamide mononucleotide (NMN) due to “competing agency priorities,” said Daniel Fabricant, the president and CEO of the Natural Products Association on September 12. Fabricant said this lack of response by the FDA threatens the viability of the NMN industry, which totaled about $280 million in sales in 2022. NMN is a form of niacin, or vitamin B3. Industry groups have asked the FDA to permit NMN to be sold as a dietary supplement, but the FDA has not ruled in their favor. This means that major online marketplaces are refusing to sell it on their platforms. Fabricant said the Citizen Petition about NMN should be an agency priority since it is a public health matter related to the new dietary ingredient process.

Dole settles class action about the marketing of its canned fruit. Dole Packaged Foods, LLC, has settled a class action that had alleged it advertised and sold its canned fruit while stating that it was canned “in 100% fruit juice” or “in 100% juice” when in fact the products contained trace amounts of ascorbic acid, citric acid, or other ingredients. Dole has denied all wrongdoing and continues to contend that the fruit has always been appropriately marketed and labeled. However, in the settlement, Dole agreed to pay up to $4.3 million to consumers who had purchased the products and to either remove the additional non-juice ingredients from its products or to specify on the label that they are there. The deadline for making monetary claims in the settlement is September 25.

What are food expiration dates useful for anyway? On September 8, the Wall Street Journal reported in a major article that expiration dates on food sold in the supermarket don’t reflect the dates when the foods will no longer be safe or nutritious for consumers. Instead, the article said, expiration dates are “downright destructive.” The article noted that food experts generally agree the “expiration dates on every box of crackers, can of beans and bag of apples waste money, squander perfectly good food, needlessly clog landfills, spew methane and contribute to climate change.” Food manufacturers say that the dates are mostly general indicators of when food is at its peak quality and have little or nothing to do with food safety. Most foods, properly stored, remain edible and safe long after their peak. And, the article went on, the dates don’t help keep consumers safe. According to Martin Wiedmann, a professor of food safety and food science at Cornell University who is quoted in the article, “For many foods, we could completely do away with it.”