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.

• FDA announces initiative to improve children’s diets across America. The FDA is beginning a concerted effort to improve children’s diets.  On October 6, Acting FDA Director Janet Woodcock said that as a result of the COVID-19 pandemic, childhood obesity has sharply increased and now affects 22 percent of American children, compared with 19 percent before the pandemic. The existing data on childhood obesity, she said, relate only to the period up to November 2020; millions of children stayed home from school and were less active through the entire 2020-21school year. Woodcock said the agency can act to improve children’s diets both by creating incentives for companies to make more-healthful foods and by adding new disclosure requirements that would affect consumer behavior.

• FDA formally seeks voluntary reduction of sodium content in foods. On October 13, FDA asked food manufacturers and restaurants to voluntarily reduce the amount of salt in their products over the upcoming 2 ½ years. In making this request, the agency is hoping to reduce the overall sodium intake of Americans by 12 percent.  Acting FDA director Woodcock said, “What we’d like to see is the food industry gradually lower the sodium content” of the most common foods. She noted that reducing sodium consumption “would have a major impact on hypertension, heart disease and stroke.” The FDA also said that more than 70 percent of Americans’ total sodium intake comes from sodium added during food manufacturing and commercial food preparation. The average sodium intake of Americans is 3,400 milligrams per day, while the advisable amount under federal guidelines is 2,300 milligrams per day.

• Using salt substitute cuts stroke risk, study finds. A massive five-year study conducted across 600 villages in rural China has found that replacing dietary salt with a low-sodium salt substitute cut the risk of major adverse cardiovascular events by 13 percent and lowered the risk of stroke by 14 percent when compared with normal salt use. In addition, among those using the salt substitute, the risk of all-cause mortality was reduced by 12 percent.  The results of the Salt Substitute and Stroke Study were reported in a recent New England Journal of Medicine and simultaneously announced at the European Society of Cardiology Congress 2021. The average age of participants was 65.4 years and 49.5 percent were female; 72.6 percent had a history of stroke and 88.4 percent had a history of hypertension.  Participants in the study were asked only to replace regular salt with a lower-sodium, potassium-rich alternative; use of other sources of sodium, like soy sauce, remained the same. Lead investigator Bruce Neal, MD of the George Institute for Global Health in Sydney said, “This study provides clear evidence about an intervention that could be taken up very quickly at very low cost.” In China, he said, it could save at least 10 million lives a year, and the study is relevant for people everywhere: “Salt substitution could be used by billions more with even greater benefits.”

• CSPI issues report on sugary drinks in grocery stores, calls on retailers to act.  On September 29, the nonprofit Center for Science in the Public Interest issued a report summarizing the conclusions of its study on the way grocery stores promote sugary drinks. The report found that grocery stores in Washington, DC, place sugary drinks like soda, punches, lemonades, and sports drinks in an average of 30 locations throughout the store. These placements, the report said, constitute “a powerful marketing tool that can contribute to greater consumption of sugar-sweetened beverages – the top source of added sugar in Americans’ diets – and associated chronic disease.”  The organization called on retailers to instead place such drinks in a designated soda aisle, to eliminate manufacturers’ coupons for them, and to replace such beverages with healthier alternatives.

• SDNY rejects challenge to FDA’s GRAS regulatory regime. On September 30, the US District Court for the Southern District of New York granted the government’s motion for summary judgment in a case brought by a number of consumer advocacy organizations questioning whether GRAS (Generally Recognized as Safe) substances should be exempt from premarket review. Manufacturers, the court found, may continue to determine that substances they use in their products are GRAS and, when they do so, their findings are exempt from premarket review by the FDA in its role as a regulator of food additives. The GRAS regulatory framework, the court also found, is a lawful implementation of the Federal Food, Drug, and Cosmetic Act. The plaintiffs in the case, among them the Center for Food Safety, had contended that the GRAS rule fails to ensure that the FDA would have oversight over GRAS determinations, thus allowing manufacturers to covertly determine which substances may be added to food.

• Welch’s settles lawsuit about health benefits of its grape juice. On October 8, Welch Foods Inc., the maker of Welch’s Grape Juice, agreed to settle a consumer lawsuit that had alleged the company had falsely advertised three of its grape juices as being good for heart health, when they allegedly increase the risk of cardiovascular disease. In the settlement, the company agreed to pay consumers who had bought three of its grape juices $1 per product, for up to 12 products, without proof of purchase. With proof of purchase, there will be no cap on the number of claims that can be filed. The settlement also requires the company to stop using the challenged claims “helps support a healthy heart,” and “helps promote a healthy heart,” or any similar claims, for the products for at least two years. The lawsuit was filed in the US District Court for the Northern District of California.

• Humane Society sues Smithfield Foods over confinement of pigs in crates. The Humane Society of the United States filed a lawsuit on October 18 against Smithfield Foods, the world’s largest pork producer, for misleading consumers about animal abuse in its operations. The lawsuit, brought in the Superior Court of the District of Columbia, alleges violations of the Consumer Protection Procedures Act of the District of Columbia. The lawsuit claims that Smithfield’s language works to “mislead humane-conscious consumers and commercial buyers into purchasing pork” and “increases consumer and corporate confusion over confinement practices on pig farms.” Smithfield, the lawsuit says, has misled consumers in saying that it has eliminated gestation crates for mother pigs. In fact, according to the lawsuit, the company never eliminated the crates but merely reduced the amount of time the pigs must stay inside them.

• Agriculture groups seek Supreme Court review of Proposition 12 ruling.  Agriculture industry groups, among them the National Pork Producers Council and the American Farm Bureau Federation, on September 27 asked the US Supreme Court to review a decision by the US Court of Appeals for the Ninth Circuit that had upheld California’s Proposition 12 against a constitutional challenge. Proposition 12 is a ballot initiative passed by California voters in November 2018. It establishes new standards of confinement for certain farm animals and bans the sale in California of eggs, veal and pork products that do not meet those standards. In July 2021, the Ninth Circuit rejected the challenge that the groups had filed, which had been based on the Constitution’s Commerce Clause. The appeals court held that the California law regulates in-state and out-of-state activities in the same way, which is constitutionally correct.

• Maker of Crisco spray is sued because there is no butter in the spray. On September 27, a consumer brought a proposed class action against the J. M. Smucker Company, maker of the Crisco brand of “butter no-stick spray,” on the grounds that the product does not contain any butter. “Given the absence of any butter, the Product is required to be identified as an artificially butter flavored no-stick spray,” the complaint said. “While the front label contains a statement of ‘natural and artificial flavor,’ this is insufficient to disclose to consumers the Product has no butter.” The complaint alleges that the product is at best an artificial and inferior substitute for butter. According to the complaint, the product was worth less than the plaintiff had paid for it, and he would not have paid as much for it in the absence of the false and misleading statements and omissions by the defendant. The complaint was filed in the US District Court for the Northern District of Illinois.
  
  
• Onion recall expands. The FDA is now urging Americans to throw out onions from several sources, among them loose, unbagged onions purchased in grocery stores as well as onions packed in some popular meal kits, due to concerns over Salmonella poisoning. The initial recall – which began in September when diners in several states fell ill – concerned raw whole white, red, and yellow onions imported from Chihuahua, Mexico by ProSource, Inc.  The latest recall includes bagged onions sold under such brands as Green Giant, Sysco Imperial, and Big Bull; onions imported by an additional distributor, Keeler Family Farms of Deming, New Mexico; and many onions packaged by meal subscription companies HelloFresh and EveryPlate in their meal kits. As of this writing, in the US 652 people have fallen ill in 37 states and 200 have been hospitalized.  In Canada, the Canadian Food Inspection Agency has also recalled raw whole white, red, and yellow onions imported by ProSource from Chihuahua; an ongoing food safety investigation may lead to further recalls there.