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.

• Federal appeals court upholds FDA on Impossible Foods’ key ingredient. The US Court of Appeals for the Ninth Circuit, on May 3, upheld the FDA’s decision to approve soy leghemoglobin, an additive that is used in Impossible Foods’ vegan meat products. The court’s ruling means that the company can continue to use the ingredient, which it says gives its popular plant-based products their distinctive meaty taste. The Center for Food Safety had appealed the lower court’s decision, contending that the FDA did not use the proper standard in approving soy leghemoglobin, also called “heme.”  Impossible Foods makes its heme from genetically modified soy. In an unpublished opinion that the court said cannot be used as a binding precedent for other cases, the court wrote, “The FDA applied the correct standard for evaluating the safety of soy leghemoglobin as a color additive; it did not violate the Federal Food, Drug, and Cosmetic Act.”
• Congress considers bill to bar milk-based terms for plant products. On April 22, two senators and two members of the US House of Representatives introduced a bipartisan bill that would require the FDA to take action against companies that label non-dairy “milks” and similar products with dairy terms. The bill would create a nationwide ban on the use of terms such as “milk,” “cheese,” and “yogurt” for products that are made from nuts, seeds and plants. The proponents of the bill say that the FDA long ago created a standard for dairy products that plant-based products don’t meet. The proponents of the bill are Senators Tammy Baldwin (D-WI) and Jim Risch (R-ID) and Representatives Peter Welch (D-VT) and Mike Simpson (R-ID).
• Proposed tax on sugary drinks is introduced in US House. On April 20, US Representative Rosa DeLauro (D-CT) announced at a public conference that she plans to introduce a bill in the House of Representatives that would impose a federal excise tax on sugary drinks. Revenue from the tax, which is estimated to be $18 billion, would be used to help schools curb the use of sugary foods in the federal School Lunch Program. Similar taxes on soda have been adopted at the local level in Boulder, Colorado; Oakland, California; Philadelphia; San Francisco; Seattle; the Navajo nation; and other jurisdictions. Under the proposed tax, drinks with less than 7.5 grams of sugars per 12 ounces would be exempt, but drinks with more than 7.5 grams but less than 30 grams per 12 ounces would be taxed at two cents per ounce. Drinks with more than 30 grams of sugars per 12 ounces would be taxed at three cents per ounce.
• Key senator calls for White House conference on hunger and nutrition. On April 30, Senator Cory Booker (D-NJ) called for a White House conference on hunger and nutrition policy. He said this conference would bring together both public and private stakeholders “to reimagine federal food and nutrition policy.” Booker said the nutrition crisis among America’s poor “is sending generations of our elders to an early death and robbing our children of too much of their precious potential.” Booker is a newly named member of the Senate Agriculture Committee. The most recent White House conference on hunger in America took place in 1969 and was convened by President Richard Nixon. That conference has been credited with many changes in federal food policy, including major expansions of the Food Stamp Program and School Lunch Program, authorization of the Supplemental Feeding Program for Women, Infants and Children, and significant changes to nutrition labeling and ingredient labeling.
• Sara Lee is sued over the ingredients of its “all butter” cake. On April 19, Sara Lee Frozen Bakery, LLC, was hit with a class action lawsuit concerning its “All Butter Pound Cake.” The lawsuit claims that consumers are not aware that the cake contains not only butter but also soybean oil, another type of shortening. The lawsuit, which was filed in the US District Court for the Northern District of Illinois, alleges that consumers reasonably expect, upon reading the words “All Butter” on the front label of the product, that the only shortening present in the product is butter. The complaint alleges Sara Lee intentionally mislabeled the product to create the impression that butter is the only shortening in the product. According to the complaint, “Had Plaintiff and other class members known this truth [that there is soybean oil in the cake], they would not have bought the Product or they would have paid less for it.”
• Anheuser-Busch settles lawsuit over organic certification. On April 27, Anheuser-Busch settled a lawsuit that had been filed by Suzie’s Brewery, an Oregon craft beer producer. Suzie’s had asserted that Anheuser-Busch had falsely advertised itself as producing the first and only hard seltzer that is certified as organic, while in fact Suzie’s hard seltzer had been the first one to be certified organic. US District Judge Michael Simon accepted the agreement to settle the case, writing, “Truth matters. Whether the context is politics, science or commercial advertising, dishonesty has consequences.” The judge pointed out that Suzie’s hard seltzer had received the certification before Michelob Ultra Hard Seltzer, an Anheuser-Busch product, received it. The terms of the settlement were not made public.
• Truth in Buffalo Labeling Act would protect bison ranchers and consumers. On April 15, a bipartisan group of federal lawmakers introduced the Truth in Buffalo Labeling Act in Congress. The proposed legislation is intended to protect the interests of bison producers and consumers by requiring that meat products from the water buffalo be labeled as “water buffalo” rather than as “buffalo.” The bison is often referred to in the United States as a buffalo, even though its more correct name is bison and it is biologically unrelated to the water buffalo. “Bison producers have worked hard to connect with consumers around the high quality of the meat and the role that these magnificent animals are playing in restoring healthy grasslands,” said Dave Carter, executive director of the National Bison Association. “These efforts are being undermined by deceptively labeled water buffalo. The Truth in Buffalo Labeling Act will protect both the hardworking ranchers and their customers.”
• Nontraditional agriculture companies launch food safety certification program. On April 28, the CEA Food Safety Coalition launched what it said is the first food safety certification program designed specifically for leafy greens grown using controlled environment agriculture, a nontraditional form of agriculture known as CEA. In this type of operation, plants are grown through hydroponic, aeroponic or aquaponic methods, many without pesticides and protected from the weather. The group’s certification program, known as the Leafy Green Module, uses science-based standards to assess an operation’s food safety practices in areas such as water and pesticide use, site control and hazard analysis. Companies that pass the module can use the CEA food safety certified seal on their product packaging. Leafy greens grown in traditional farms have recently been the source of many outbreaks of food-borne disease.