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9 March 20239 minute read

Food and Beverage News and Trends - March 9, 2023

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

FDA chief supports product disclosure for supplements. In a February 24 blog post on the FDA website, FDA Commissioner Robert Califf said he supports product listing on dietary supplement packages to help fulfill his hope for “an improved framework to appropriately regulate dietary supplements.” In response, some dietary-supplement trade groups, such as the Council for Responsible Nutrition, supported the plan, while other groups, such as the American Herbal Products Association and the Natural Products Association, opposed it. “This enormous industry continues to grow and it’s now part of everyday life for many families,” Califf wrote. “Dietary supplements should be required to list with the FDA and companies should be accountable for revealing what is in the supplement being sold. In the long run we will have more information about the benefits and risks of dietary supplements as our methods of evidence generation improve, and I hope for a regulatory regime that can encourage better information for consumers to be informed about their choices.”

New USDA rule would clarify “Product of USA” claims.
On March 6, the USDA released a proposed rule that would govern the use of voluntary “Product of USA” or “Made in the USA” claims by manufacturers of certain USDA regulated products. The rule allows the claim to be used for meat, poultry and egg products only when they are derived from animals born, raised, slaughtered and processed in the United States. The USDA said that the greater clarity provided by this proposed change “would prevent consumer confusion and help ensure that consumers understand where their food comes from.” Agriculture Secretary Tom Vilsack said, “American consumers expect that when they buy a meat product at the grocery store, the claims they see on the label mean what they say. These proposed changes are intended to provide consumers with accurate information to make informed purchasing decisions. Our action today affirms USDA’s commitment to ensuring accurate and truthful product labeling.”  Califf focuses on changing world of food in one-year online summary.

Califf focuses on changing world of food in one-year online summary.  In a website post dated February 17, FDA Commissioner Robert Califf summarized the agency’s achievements during his first year on the job. This posting constituted Part One of his summary. In the food arena, Califf noted that the world of food is changing rapidly. “Armed with the Food Safety Modernization Act and the ‘New Era of Food Safety’ documents, the Solomon report on infant formula and the Henney-Reagan Udall Foundation report on the Human Foods Program, by the turn of the new year we had all we needed to initiate planning for a transformational change. Enormous forces are impacting the food industry: climate change and international disruptions of supply chains; immense potential benefits (and potential risks) of biotechnology, including genome editing; ‘big data’ opportunities to redefine the impact and regulation of toxins in food; continued improvement in our understanding of nutrition; and scientific and technological innovation,” he wrote.

Food industry stakeholders criticize FDA’s reorganization plan. A coalition of food industry leaders and food safety stakeholders wrote a letter on February 16 to the secretary of Health and Human Services, criticizing the FDA for not going far enough in its recently announced plans to unify nearly all its major food components, currently scattered across multiple divisions, under a new Human Foods Program. The letter noted that the new plan does not create a new role of deputy FDA commissioner with direct line authority and responsibility for the food program’s success. Among those commenting were the Consumer Brands Association, Consumer Reports, the American Frozen Food Institute, and the Environmental Working Group; they requested a meeting with the HHS secretary, Xavier Becerra, after they said that their meeting with FDA Commissioner Robert Califf left them unsatisfied.

New focus emerges on food additives generally recognized as safe. On February 21, CBS News reported that the FDA has not evaluated many food chemicals and additives in decades. It noted that most food additives used today are safe, but that some chemicals allowed in the US have been banned overseas after research linked them to cancer and developmental or behavioral issues. CBS News noted that US Representative Jan Schakowsky (D-IL) recently introduced a bill requiring the FDA to review certain chemicals that are banned overseas and to close what's known as the “generally recognized as safe” or GRAS loophole. That loophole allows companies to skip an extensive safety review when adding many new chemicals to food. In addition, proposed legislation in the California legislature would make it the first US state to ban five common chemicals -- brominated vegetable oil, potassium bromate, propylparaben, red dye 3 and titanium dioxide -- from all goods sold, distributed, or made in the state.

CSPI endorses FDA’s definition of “healthy” – with reservations. On February 16, the CSPI filed formal comments with the FDA on the agency’s proposed new definition of the term “healthy” as applied to foods. The nonprofit said that the new definition is a substantial improvement over the status quo – but that it could be improved by strengthening the “healthy” requirements for whole grains, fruits, and vegetables and by ensuring that marketing claims such as “wholesome,” “nutritious,” and “heart healthy” are considered implied “healthy” claims. The group noted that even with the FDA’s suggested improvements, the actual benefits of the “healthy” claim to consumers would be limited. According to the FDA, about 15 percent of products qualify for the current definition of “healthy,” and less than five percent bear the claim. The agency estimates that after the improvements are implemented, only four percent of foods in the grocery store might carry the claim.

Permitted Food Enzymes List modified to permit use of Subtilisin in foods. Effective February 22, 2023, the Government of Canada’s List of Permitted Food Enzymes has been updated to permit the use of Subtilisn derived from Baccilus licheniformis PP6107 in various foods after its safety was proven in a premarket assessment. See the Health Canada release

Government of Canada makes $19.7 million investment to address labor shortages in agriculture and agri-food sector. On February 15, 2023, Canada’s Minister of Agriculture and Agri-Food, the Honourable Marie-Claude Bibeau, on behalf of the Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, announced a $19.7 million investment, through the Sectoral Workforce Solution Program (the SWSP), into two projects to help Canada’s agricultural sector. The SWSP aims to help key sectors of the economy address their labor needs by training and reskilling workers, helping employers attract workers, and building initiatives that help equity-deserving groups develop skills. The first of the projects is a $12 million investment in the Canadian Agricultural Human Resource Council for its Growing the Agricultural Workforce of the Future: Cultivating Canada’s Post-Pandemic Recovery Project, which aims to develop training programs that teach employers and employees the skills most needed in the agriculture sector. The second of the projects is a $7.7 million investment in Food Processing Skills Canada for its Achieving our Workforce Destination: Qualified People, Successful Careers & Competitive Business Project, the purpose of which is to increase retention in the industry by developing resources, tools and certifications for supervisors and employees.

California town passes ordinance to keep less-healthy food out of checkout aisles. Supermarket News reported February 16 that the California city of Perris, population 80,000, has just passed an ordinance to require that supermarkets stock their checkout lanes with healthier grab-and-go items rather than snack foods with high levels of sugar and salt. “The city of Perris is excited to join this initiative and help promote healthy food options in our community,” said Clara Miramontes, Perris city manager. “We are committed to the long-term health and wellness of residents and look forward to successful results.” The move was supported by the nonprofit Center for Science in the Public Interest, which has sponsored several health-awareness campaigns targeting grocery stores and restaurants. A similar ordinance took effect in Berkeley, California, in 2021. The new rule will require food retailers to remove soda, chips, and cookies from checkout aisles and to replace them with healthier alternatives such as fruit, nuts, seeds, seltzer and other low- or no-calorie drinks, according to the CSPI.

Appeals court strikes down new type of “ag-gag” law on constitutional grounds. On February 23, the US Court of Appeals for the Fourth Circuit has struck down the Property Protection Act, a broad North Carolina state law that has been used as an “ag-gag” law to prevent the public from learning about food-production processes. That law allowed courts to assess civil fines against those who filmed, or even took notes about, a business’s non-public areas to document alleged wrongdoing, and then shared that information with anyone besides the employer or law enforcement. The state argued before the appeals court that undercover investigations in nonpublic areas were not protected by the First Amendment. The appellate court’s majority disagreed; Justice Henry Floyd stated, “That is a dangerous proposition that would wipe the Constitution’s most treasured protections.” Among the many plaintiffs involved in the case were the ASPCA, Reporters Committee for Freedom of the Press, PETA, the United Farm Workers, and Food & Water Watch.

Study shows possible link between eating fresh fruits and vegetables and better prostate cancer outcomes. On February 14, The Washington Post reported that a new study shows that a diet heavy in fresh fruits and vegetables can reduce both the progression of prostate cancer and the likelihood that it will return. Prostate cancer is the second most common cancer in men, with an estimated 288,300 new cases and 34,700 deaths projected for this year. The researchers followed men who already had prostate cancer and were at risk of the cancer growing or returning after treatment. The researchers found that men with prostate cancer who reported diets containing the highest amounts of plants had a 52 percent lower risk of disease progression and a 53 percent lower risk of recurrence compared with those whose diets had the lowest amounts of plants.