9 August 202015 minute read

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 new food safety blueprint for next 10 years. On July 13, the FDA unveiled its 10-year plan for food safety, building on the 2011 Food Safety Modernization Act. The plan, titled the New Era Blueprint, describes how government and industry will use technology to reduce the number of cases of foodborne illness. It grew out of input that the FDA received in a public meeting and from safety experts, various sectors of the food industry and federal and state regulators. FDA Commissioner Stephen Hahn said, “The blueprint we release today represents the next stage in this process – a commitment we are making to the American people that we will work as fast and effectively as we can to help ensure that we have the safest food system in the world.” The goal of the initiative is to revamp the nation’s food system in accordance with changes in the marketplace and in the technologies for producing food, food additives and food supplements.

  • FDA will resume on-site inspections. FDA Commissioner Stephen Hahn said July 10 that the agency’s on-site inspections of food production facilities, which had been paused in March because of the coronavirus disease 2019 (COVID-19) pandemic, will resume. Hahn said, however, that the virus remains the agency’s major concern even after the resumption of inspections. The renewed inspections “will depend on the data about the virus’s trajectory in a given state and locality and the rules and guidelines that are put in place by state and local governments,” he said. “In order to move to the next phase, we must see downward trends in new cases of COVID-19 and hospitalizations in a given area.” Hahn also said that inspections will now be pre-announced to businesses before they occur, in order to ensure safety.

  • FDA says Ocean Spray can make certain health claims about cranberry juice. The FDA announced July 21 that it will not object to the use by food companies of certain types of qualified health claims that connect the consumption of cranberry juice and cranberry supplements to a reduced risk in women of urinary tract infections. The FDA was responding to a petition filed by Ocean Spray Cranberries, Inc., that had asked the agency to allow the company to make a similar but much broader claim that would state directly that cranberry juice reduces urinary tract infections in women. The agency found that there was insufficient scientific evidence for that, but that qualified claims that mention “limited scientific evidence” for the link could be allowed. Accordingly, it granted Ocean Spray a “letter of enforcement discretion,” declaring that it would not bring enforcement actions against the company for these claims.

  • USDA is sued over its new standard for bioengineered foods. On July 27, a coalition of retailers and nonprofits filed a lawsuit against the USDA, asserting that the new National Bioengineered Food Disclosure Standard, which requires companies to label foods and beverages that contain “bioengineered” ingredients, is unlawful. The standard is set to take effect in January 2022. The groups said that the standard does not go far enough in requiring disclosure of such ingredients to consumers. They asked in their complaint that the standard should be nullified and then revised to meet their objections, which they say are based on federal law. The lawsuit was filed in the US District Court for the Northern District of California. Among the coalition’s contentions is the idea that consumers generally refer to the ingredients in question as “GMOs” or “genetically modified” and that the term “bioengineered” in the proposed standard is therefore vague and misleading. The groups also assert that the required disclosure through a QR code does not take into account the needs of the 20 percent of consumers who don’t have access to smartphones.

  • Two agencies agree on how to proceed in regulating cell-cultured meat. At a July 29 webinar, the USDA and the FDA set forth their plans for working together to come up with joint principles to handle the labeling of meat grown from cultured animal cells. Last year, the two agencies agreed that they would divide responsibility, with the FDA regulating the products during cell collection and cell growth and differentiation and the USDA handling them in the cell harvest and food production stages. At the webinar, in which officials of both agencies participated, the agencies said they would launch a rulemaking and public comment process. No timetable for this process has yet been established. Cell-cultured meat is not yet on the market but is regarded as potentially a huge growth industry.

  • Beef trade group launches campaign to influence US dietary guidelines in favor of meat. On July 22, the National Cattlemen’s Beef Association (NCBA) announced a nationwide campaign to encourage cattle producers to submit public comments to the USDA to urge the importance of beef in updated federal dietary guidelines. In mid-July, the department completed a draft report for the 2020 federal Dietary Guidelines Advisory Committee. This report will help serve as a basis for the next version of the recommended Dietary Guidelines for Americans. The deadline for public comments to the USDA and the Department of Health and Human Services on the 2020-2025 guidelines is August 13. The NCBA said it continues to be concerned that anti-meat advocates are working to downplay the role of meat in the human diet. “Study after study shows that beef plays an important role in a balanced, healthy diet across the lifespan,” said Marty Smith, president of NCBA. 

  • USDA is asked to limit the marketing of junk food on online learning platforms. On July 13, a broad coalition of civil rights, child welfare and health organizations called on the USDA to protect children from the marketing of junk food on online learning platforms. This issue became significant because so many schoolchildren are using distance learning during the COVID-19 pandemic. “The current public health crisis has highlighted the important role schools play in children’s diets,” said Julia McCarthy, interim deputy director of the Laurie M. Tisch Center for Food, Education, and Policy at Teachers College at Columbia University. McCarthy was one of those who signed the letter. “We’re asking USDA to help districts limit unhealthy food marketing at a time when so many families are struggling to eat healthfully,” McCarthy added.

  • Letter from federal panel points to “parallel epidemics” in the COVID-19 era. On June 30, the federal Dietary Advisory Guidelines Committee wrote a letter to the secretaries of Agriculture and Health and Human Services, noting the major impact of the COVID-19 pandemic on human nutrition and diet and calling for further study and examination of the relationship between these two issues. The committee wrote, “As more is learned about infection by SARS-CoV-2 and the development of COVID-19, it is clear that it has significant nutritional implications. These parallel epidemics, one noninfectious (obesity and diet-related chronic diseases) and one infectious (COVID-19), appear to be synergistic.” It went on to say that those at most risk for hospitalization and death from COVID-19 are people afflicted by diet-related chronic diseases, including obesity, type 2 diabetes, and cardiovascular disease.

  • South Carolina governor – former “guidelines” to fight spread of COVID-19 are now mandatory. On July 29, South Carolina Governor Henry McMaster announced that all previously recommended guidelines for restaurants and other establishments that attract groups of people would become mandatory, effective August 3.  Many of the measures target restaurants and bars.  On July 10, Governor McMaster had announced that all 8,000 restaurants, bars and breweries in the state would be required to stop serving alcohol at 11 pm every night; bars and restaurants violating the order could lose their liquor licenses, the governor said.  Among the newer, stricter measures announced on July 29: both employees and patrons must wear masks and capacity is restricted to no more than 50 percent of usual occupancy rates.  Furthermore, mass events like parades, festivals, concerts, dances, games and performances also are required to comply with such hygiene and social distancing measures.

  • Ohio puts new clamps on liquor consumption because of coronavirus. On July 31, Ohio became the latest state to restrict alcohol sales to try to stop the spread of COVID-19. State Governor Mike DeWine, in an executive order that was effective immediately, banned all alcohol sales in bars and restaurants after 10 pm. In addition, the consumption of drinks purchased before 10 pm is prohibited after 11 pm. The order also raises to three the number of alcoholic drinks that can be bought per takeout meal. DeWine says the new restrictions are necessary because social distancing worsens late at night in establishments selling alcohol. Legal challenges of the governor’s statewide order are expected.

  • Onion recall. Nearly 400 consumers in 34 US states have fallen ill, and 59 have been hospitalized, in an outbreak of Salmonella Newport linked to onions produced by Bakersfield, California-based Thomson International.  The company’s red onions appear to be the vector for this outbreak, but on August 1, Thomson issued a voluntary recall encompassing all red, white, yellow and sweet yellow onions it had shipped to all 50 states going back to May 1.  On August 6, the USDA’s Food Safety and Inspection Services issued an alert warning about salads and ready-to-eat poultry and meat products sold in five US states at Wal-Mart, HEB and Kroger stores that may contain the affected onions.   The onions have been distributed to institutions, grocery stores, and restaurants under several brands; some are being sold loose and unlabeled.  Thompson onions have also been sold in Canada, and the Canadian Food Inspection Agency is also warning consumers in British Columbia, Alberta, Saskatchewan, Manitoba, and Ontario about the onions.  Finally, on August 3, a San Diego man who fell ill after eating the implicated red onions in June has filed suit against Thomson, seeking damages “in an amount that is fair and reasonable, for his costs incurred, and for any other relief to which he may be entitled.”  The San Diego health department has confirmed that the plaintiff’s illness was part of the Salmonella Newport outbreak.

  • Cleveland is latest city to prohibit soda as default choice on kids’ meals. On July 29, the Cleveland City Council approved, and the mayor signed, a measure that will prohibit restaurants in the city from offering kids’ meals that include sugary drinks as the default beverage. Restaurants in Cleveland that offer children’s meals will have until the end of January 2021 to provide children with a healthy beverage option, such as milk, water or juice, instead of sugary soda. The purpose of the six-month waiting period is to permit restaurants to print new menus and train their staff. The law will still allow customers to buy sugary drinks, but only through a separate purchase and not as part of a set meal. The purpose of the ordinance is to improve public health by reducing childhood obesity, which contributes to such conditions as type 2 diabetes and heart disease.

  • Court finds white candy bars are indeed white. On July 27, the US District Court for the Eastern District of New York rejected a proposed consumer class action against Hershey that had alleged consumers were deceived because white Kit Kat bars do not actually contain significant amounts of white chocolate. Judge Kiyo Matsumoto noted that the labels in question did not assert that the bars contained white chocolate, only that they were “white.” The judge looked up the definition of “white” in the dictionary and found that the bars are indeed white; thus, there was no deception involved. The judge wrote, “Plaintiff’s complaint alleges no plausible facts that the presence of the word ‘white’ on the package of Kit Kat White bars gives rise to a plausible claim that consumers would be misled into believing that chocolate was an ingredient.”

  • Class action against Burger King’s Impossible Whopper is tossed. On July 20, the US District Court for the Southern District of Florida dismissed a class action complaint alleging Burger King had misled consumers by failing to disclose that its plant-based “Impossible Whopper” patty was cooked on the same grills and with the same oils as regular beef patties. The result is that vegetarian and vegan customers who ordered this burger would inadvertently consume animal fats. But the court ruled that Burger King had never promised that the Impossible Burger would never come into contact with animal products – only that it is composed of entirely plant-based products. “Burger King promised a non-meat patty and delivered,” the judge wrote. 

  • Vanilla-flavoring case against Wegman’s is dismissed by federal judge. A judge in the US District Court for the Southern District of New York on July 14 dismissed a class action brought by two consumers against Wegman’s Food Markets last year alleging that Wegman’s engaged in deceptive advertising in connection with its labeling of its vanilla ice cream. They had said they were deceived because the vanilla flavor came from a source other than pure vanilla from the vanilla plant. On July 14, the court ruled that there was no deception that the law should take into account. The decision stated, “Even if vanilla or bean extract is not the predominant factor, if the sources of the flavor are natural, not artificial, it is hard to see where there is deception. What is misrepresented? The ice cream is vanilla flavored. The sources of the flavor are natural, not artificial.” The ruling also noted that even if there was a violation of federal pure food and drug laws, a consumer does not have standing to enforce them.

  • Bigelow faces class action over the origin of its tea products. On July 13, two California residents filed a proposed class action in the US District Court for the Central District of California, alleging that R.C. Bigelow Inc. has engaged in misleading representations about the origin of its tea. The lawsuit says that Bigelow asserts that its tea is “manufactured in the USA,” but that none of its tea is grown or processed in the United States. According to the lawsuit, the plaintiffs and others purchased Bigelow tea products because they said they reasonably believed, based on the packaging and advertising, that these products are made in the United States. Had the plaintiffs and other consumers known that the products are not American made, they would have paid less for them or they would not have purchased them at all, the complaint says.

  • Appeals court says “prescription” pet food advertising can involve deception. Reversing a federal trial court, the US Court of Appeals for the Ninth Circuit ruled July 28 that a consumer was legally justified in bringing a case against pet food manufacturers and retailers and a veterinary clinic that advertised some pricey pet foods as “prescription” foods. The complaint was based on the fact that the foods did not actually require a doctor’s prescription. In the majority opinion, Circuit Judge Richard Paez wrote, “It is reasonable for a consumer to rely on the prescription requirement and labeling in her purchasing decision for an ailing pet. Pets can, after all, be as cherished and cared for as family members, and a reasonable person in Plaintiffs’ shoes would rationally gravitate toward a ‘prescription’ product if that family member’s health is at risk.” The majority opinion also said, “A reasonable consumer being told about ‘prescription pet food’ may be surprised to learn that there are no drugs or controlled ingredients in the pet food by nature of brand names like ‘Prescription Diet’ or an ‘Rx’ symbol on the food packaging.”

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.