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.

• Universal child nutrition program extended. On April 20, the USDA announced it will extend its universal free lunch program through the 2021-2022 school year.  The extended program, instituted at the start of the pandemic, aims to reach more than 12 million schoolchildren who are experiencing food insecurity.  Among the options it provides, it allows children to eat free even outside normal meal times, based on their schedules and needs, and allows parents to pick up multiple days of food at once for students learning from home.  Agriculture Secretary Tom Vilsack said the waivers will help school districts plan for safe reopening in the fall, adding, “This action also increases the reimbursement rate to school meal operators so they can serve healthy foods to our kids. It’s a win-win for kids, parents and schools.”

• FDA clears lots of canola seed that had been inadvertently contaminated with GMO seeds. The FDA announced in two April 9 letters that it is not concerned about the safety for human consumption of certain lots of canola seed and of “a small number of canola fields” that were inadvertently contaminated with low levels of genetically modified varieties of canola seed. The genetically modified canola seeds were developed in a broader, swiftly moving project to create canola rich in Omega-3, which is traditionally derived from fish oils. Each of these varieties is now undergoing a pre-market food safety study conducted by the FDA for the canola-growing companies. In response to questions by the companies, the agency said that it does not believe the new varieties are likely to cause allergic reactions or to be toxic to humans or animals. But, the agency added, this should not be regarded as an endorsement of the varietals for broader use. Intense environmental pressure on dwindling fish stocks, coupled with rising demand for Omega-3 supplements, underpins the research push to create this genetically modified seed.
• FDA updates leafy-greens action plan, aiming to prevent E. coli contamination. In a formal statement on April 6, the FDA announced an updated version of its 2020 Leafy Greens STEC Action Plan and urged all those in the California leafy greens industry to work closely with the agency and redouble their awareness of food contamination issues. STEC is the acronym for Shiga toxin-producing E. coli, the bacterium at the center of a dangerous nationwide outbreak of foodborne illness in 2019 linked to leafy greens from the Salinas and Santa Maria growing areas. Since last year, “the FDA and its partners in the public and private sectors have made significant progress in advancing the safety of leafy greens,” but it is a “reasonably foreseeable hazard,” the FDA said, that the same strain will be implicated in a fresh outbreak given the presence of cattle on land adjacent to the growing fields. In its announcement, the FDA noted the progress that has been made since the Action Plan was announced a year ago and set out new action steps which build on these achievements. The agency also emphasized that “food safety is a shared responsibility” which demands cooperation among industry leaders, government entities, all parts of the leafy greens industry, consumer groups, retailers, and the broader agricultural community. The updated action plan may be seen here.
• FDA and HHS are urged to retain FDA regulation of genetically engineered food animals. On April 5, leaders of 13 nonprofit organizations in the animal welfare, public health and environmental fields signed letters to Agriculture Secretary Tom Vilsack and Health and Human Services Secretary Xavier Becerra, asking them to allow the FDA to retain its regulatory authority over genetically engineered food animals. At the end of the Donald Trump Administration, then Agriculture Secretary Sonny Perdue and Brett Giroir, then HHS Assistant Secretary for Health, signed a memorandum of understanding that put most oversight of genetically engineered food animals under the control of the USDA. Opponents of that approach believe it weakens the FDA’s authority to protect public health. The letters said, “We believe it is clear that FDA has far more of the expertise and ‘safety first’ perspective needed to regulate novel [genetically engineered] animals. Stringent regulation is required not only to ensure safety, but also to avoid blowback from the ‘rush-to-market, consequences be damned’ mentality of some biotechnology enthusiasts.
• Consumers put on alert for possible contamination of ground turkey. On April 12, the Centers for Disease Control and Prevention issued a food safety alert regarding possible Salmonella contamination in raw ground turkey products produced by Plainville Brands, a Pennsylvania-based company. The agency is concerned that the turkey may have been the cause of a multistate outbreak of 28 illnesses in 12 states that took place between December 28, 2020, and March 4, 2021. The most common symptoms of Salmonella infection, the agency said, are diarrhea, abdominal cramps and fever, all beginning somewhere between six hours and six days after consuming the contaminated product.
• US Senate opens sesame to mandatory label disclosure. On April 14, the US House of Representatives approved the Food Allergy Safety, Treatment, Education and Research (FASTER) Act, which requires that manufacturers of packaged foods indicate the presence of sesame on the labels of their products. If signed by President Joe Biden, the bill would make sesame the ninth major allergen that must be disclosed in food packaging under federal law. The US Senate passed the bill on March 3. According to Lisa Gable, the CEO of the nonprofit group FARE (Food Allergy Research & Education), more than 1.5 million Americans are allergic to sesame. At present, sesame is often labeled in a vague manner as “natural flavors” or “natural spices,” making it difficult for people who are allergic to the ingredient to identify its presence.
• Should gluten be disclosed in drugs? On April 8, US Representatives Tim Ryan (D-OH) and Steve Stivers (R-OH) introduced the Gluten in Medicine Disclosure Act in the House of Representatives. The legislation would require drug manufacturers to label the ingredients of their medications, their source, and whether any gluten is present. According to the Mayo Clinic, celiac disease now affects almost three million Americans. For people with this disease, ingesting gluten causes serious damage to the small intestine. The Food Allergen Labeling Consumer Protection Act, passed by Congress in 2004, requires packaged food labels to identify all ingredients containing wheat and other allergens, but prescription drugs are not covered by the law. In 2017, the FDA released draft guidance that encouraged drug manufacturers to disclose the presence of gluten, but not all of them have done so.
• Kodiak Cakes hit with class action over its products’ protein content. On April 13, Kodiak Cakes, LLC, became the target of a class action in the US District Court for the District of Utah concerning the claims it makes for the protein in its pancake and waffle mixes. The complaint asserts that despite being marketed to health-conscious consumers as “Protein Packed,” the products contain as much as 17 percent less protein than the amount stated on their labels. The complaint also alleges that when the products’ protein content is adjusted for digestibility based on amino acid content, the mixes provide even less usable protein per serving than consumers expect. This is because the products, according to the complaint, rely on ingredients like pea protein and wheat protein that do not contain the full array of amino acids.
• California government study points to dangers of synthetic food dyes for children. On April 16, California’s Office of Environmental Health Hazards Assessment released a peer-reviewed study concluding that the consumption of synthetic food dyes can negatively affect children’s behavior. According to the nonprofit Center for Science in the Public Interest (CSPI), the study provides authoritative scientific validation of a conclusion that previous independent reviews had also reached – that synthetic food dyes can cause or exacerbate behavior problems in some children. Synthetic food dyes include the well-known numbered colorings, such as Red 40, Red 3, Yellow 5, Yellow 6, Blue 1, Blue 2, and Green 3. Lisa Lefferts, senior scientist at the CSPI, said, “This is the most comprehensive study of the behavioral effects of synthetic food dyes ever conducted. Now is the time to turn from science to action.”
• Study indicates many parents are confused about sweetener labeling on kids’ drinks. On April 8, Food Dive magazine reported on the results of a consumer study conducted by public health researchers at New York University and the University of Connecticut about nutrition labeling for children’s drinks. The study indicated that the majority of parents of young children were unable to identify from the packaging of these drinks which ones contained low- or no-calorie sweeteners and which ones had significant amounts of added sugars, which are not generally recommended for children. The authors of the article concluded that much of the terminology used to identify sweeteners is confusing to consumers. They said it may be necessary to develop new regulations to require manufacturers to clearly note any added sugar, diet sweetener and juice content on the front of the packages of children's drinks, where parents are more likely to see it.