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.

• Blockchain-based food tracking  –  FDA plans new rule. The FDA is writing new rules that could facilitate the adoption of blockchain technology across the food industry in order to improve food safety.  Frank Yiannis, deputy commissioner for food policy and response at the FDA, said on February 1 that the rule would require the food industry to maintain records associated with critical tracking events on the supply chain – growing, receiving, transforming, creating and shipping food products.  A joint industry effort called Food Trust, which launched in 2018, is already striving to use the blockchain to track the food supply; during his tenure as vice president of food safety for Walmart, Yiannis was part of that effort.  The blockchain, Food Trust participants have noted, can be used to record and preserve a consistent history of a food item’s entire path to a grocery store. At present, however, the system is imperfect: for instance, there are various ways to upload information to the system, and suppliers themselves have varying degrees of sophistication about the use of computer and IT.  Regulatory support for the system could help stakeholders strengthen and expand blockchain-based food tracing.  The FDA expects to complete its work on the rule in November this year.

• Senate panel advances nomination of new FDA chief. On January 13, the US Senate’s Health, Education, Labor and Pensions Committee advanced by a 13-8 vote the nomination of Robert Califf to be commissioner of the FDA. Califf headed the FDA briefly during the latter part of the Obama Administration. Known as an innovator in food and drug issues, he would be the first congressionally confirmed permanent FDA chief in the Biden Administration. Califf’s nomination is expected to be approved by the full Senate. The committee’s discussion did not center on food issues but rather on issues relating to drug approvals and the nation’s response to COVID-19.
• FDA revokes venerable standard for French dressing. On January 12, in response to a citizen petition from the Association for Dressings and Sauces, the FDA announced it is revoking the standard of identity for French dressing. That standard of identity has been in existence for 70 years. “This rulemaking is part of our comprehensive effort to modernize food standards to reduce regulatory burden and remove barriers to innovation,” the FDA said. Under the standard, French dressing had been required to contain at least 35 percent vegetable oil, in addition to an acid such as vinegar or lemon or lime juice. The industry group petitioned the FDA to revoke the standard because it was hampering the ability of food companies to alter their recipes to meet changing tastes and dietary needs. The move will be effective on February 14.
• FDA reviews its new approaches to food safety in 2021. On January 21, the FDA, reviewing its actions in 2021 to deal with and prevent food-borne illness, concluded that the agency has taken significant steps to press forward with a “new era of smarter food safety.” Deputy Commissioner Frank Yiannas noted several food safety initiatives the FDA undertook in 2021, among them the Foodborne Outbreak Response Improvement Plan, designed to improve the speed, effectiveness, and coordination of the agency’s investigations of outbreaks. The FDA’s priorities, according to Yiannas, now include tech-enabled traceability, root cause analysis, and outbreak data. Yiannas also noted that the COVID-19 pandemic has accelerated the need for alternative approaches when the FDA is unable to conduct traditional surveillance and that the agency has begun to conduct remote surveillance when possible.

• Scientists and activist groups ask FDA to rescind its approvals for BPA. On January 27, a coalition of physicians, scientists, and public health and environmental organizations sent a formal petition to the FDA, calling on the agency to rescind its approvals for bisphenol A (BPA) in adhesives and coatings and to set strict limits on its use in plastics that contact food. The coalition said new findings from a panel of experts brought together by the European Food Safety Authority show that the harmful effects from BPA exposure can occur at levels 100,000 times lower than previously thought. This new safe level, based on recently developed scientific evidence, is more than 5,000 times below what the FDA says most Americans are exposed to, according to the coalition.

• FDA approves hypertension claim for magnesium in foods and supplements. Responding to a citizen’s petition, on January 10 the FDA granted permission for companies to claim that magnesium in foods and supplements can reduce the risk of high blood pressure. The agency said it is permitting three different qualified health claims to be used in labeling, provided that the text of each claim is written exactly as the FDA specified. “We are pleased FDA recognizes the role of magnesium in reducing the risk of hypertension in addition to this essential nutrient’s many other functions in the body,” said Andrea Wong, senior vice president of scientific and regulatory affairs for the Council for Responsible Nutrition, the trade group that supported the petition. However, the language in the three permitted health claims refers to the scientific evidence for magnesium’s benefits as inconsistent and inconclusive.
• Illinois now requires healthful beverages as default on children’s restaurant meals. On January 1, a new Illinois statute went into effect which requires that restaurant chains in the state provide unsweetened milk, water, or 100 percent juice as the default beverages in meals intended for children. The legislature had looked at the children’s menus of the top 50 restaurant chains in Illinois, and found that, in 2016, two-thirds of those children’s menus offered sugary drinks as the default option. The law, according to its proponents, will help ensure that healthful choices are available and are listed as part of the default children’s meal package; this move, the law’s proponents said, is an important step toward reducing childhood obesity and improving public health. Children and parents may still request soda or other sugary beverages.
• Dole issues recall of salads due to possible Listeria contamination. On January 11, Dole Fresh Vegetables, Inc., issued a new recall for Dole-branded and private-label packaged salads processed at its Springfield, Ohio and Soledad, California production facilities due to possible Listeria contamination. Dole had originally issued a recall on January 7 for packaged salads, salad blends and salad kits sold under an array of brands. In total, 72 varieties of packaged salads were included in the recall. The FDA has urged anyone who finds any of the recalled salads in their refrigerator to throw them away. The agency also noted that no illnesses have been reported in connection with these products. This latest recall comes less than a month after Dole Fresh Vegetables recalled more than 180 varieties of packaged salad produced in facilities in Bessemer City, North Carolina, and Yuma, Arizona, also due to Listeria concerns.

• California court postpones effective date of state’s Proposition 12 regarding pork sales. On January 21, the Superior Court for Sacramento County, California delayed the enforcement of Proposition 12 on sales of whole pork meat.   Proposition 12 is an expansion of California’s Cruelty to Farm Animals Act, and its goal is “to prevent animal cruelty by phasing out extreme methods of farm animal confinement.”  Prop 12’s requirements affect farm methods both inside and outside of California; some of its guidelines took effect in 2019, and the remainder were slated to become fully effective on January 1, 2022.  The petitioners in this case – among them the California Hispanic Chambers of Commerce; California Grocers Association; California Restaurant Association; and the California Retailers Association – argued that regulatory changes made by the California Department of Food and Agriculture in December 2021 meant that final regulations are still not in effect, and the court agreed.  Specifically, the petitioners argued they should not be subject to Prop 12 and related penalties until final regulations are issued by the CDFA, which were initially set to be issued in September 2019 but have not yet been released.  The enforcement delay is in place for six months after the final regulations are implemented.  After the final regulations are enacted, the parties are to obtain a more specific compliance date from the court.  Notably, the court’s ruling covers pork only - regulations for veal calves and poultry, remain in place.

• Federal court rejects “slack fill” case involving fruit snacks. In another recent loss for a plaintiff who brought a “slack fill” lawsuit, a federal court on January 25 dismissed a class action alleging that Annie’s Inc. deceived customers by leaving an unnecessary amount of space in boxes of its tropical-flavored Bunny Fruit Snacks. The US District Court for the Southern District of New York ruled that plaintiff Jessica Klausner was not harmed by the company’s alleged actions. Klausner claimed in her October 2020 putative class action that the fruit snack boxes contained more than 60 percent “unnecessary empty space,” implying that the company was misleading consumers about the quantity of fruit snacks in a package. She argued that, even though the boxes have labels stating they contain five pouches of snacks filled with 23 grams of product each, the size of the box itself was enough to mislead consumers. The judge noted in his opinion that Klausner had been buying the product for three years and should have known how the boxes were configured.

• Study indicates online nutrition labeling is lagging. According to a study published January 20 by researchers at the New York University School of Global Public Health and the Friedman School of Nutrition Science and Policy at Tufts University, online food retailers are not consistently displaying nutrition information on their websites. In addition, according to the study, US laws generally don’t require the same labeling online as they require in bricks-and-mortar outlets. The study noted that its findings are especially important during the COVID-19 pandemic, when online shopping is skyrocketing. “Our study shows that the online food shopping environment today is a bit of a ‘Wild West,’ with incomplete and inconsistent provision of required nutrition information to consumers,” said Dariush Mozaffarian, dean of the Friedman School and the study’s senior author. “Online shopping will only continue to grow, and this creates an excellent opportunity to positively influence consumers to make healthy and safe choices.”

• What food trends are likely to make headlines in 2022? On January 7, Food Insight magazine published an article featuring experts’ predictions about the food trends that are likely to dominate the headlines in the year 2022. Among them are higher interest in foods and flavors less familiar to the American palate, such as hibiscus, yuzu, turmeric, kelp, gochujang and ube; higher consumption of non-alcoholic drinks as a way to reduce caloric intake; renewed efforts by consumers to reduce sodium intake (via alternatives like potassium chloride) and to reduce sugar intake (via substitutes like allulose, maltitol and monk fruit); a growing reliance on e-commerce and direct-to-consumer sales; and new commitments to sustainability. In fact, the magazine wrote, “Consumers’ support for sustainability will extend beyond the physical environment and into social issues. Support for ‘social sustainability’ is only expected to grow, as it has found particular resonance among younger consumers.”