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.

• Prioritizing vaccination of food sector employees. As the US poises to begin its massive campaign to inoculate the population against coronavirus disease 2019 (COVID-19), key stakeholders across the food industry are urging that grocery, meatpacking, and food processing employees be a high priority. Early in the pandemic, the Defense Production Act (DPA) was used to require poultry and meat plants to remain open and in operation. The United Food and Commercial Workers (UFCW) International Union, which represents meat plant workers, stated, “America’s grocery, meatpacking, and food processing workers have been on the frontlines of this deadly pandemic since day one, putting themselves in harm’s way to feed our families … As COVID-19 cases skyrocket, hundreds of these essential workers have already died and thousands more are infected daily as they serve our country by keeping our food supply secure.” Numerous industry stakeholders, ranging from the North American Meat Institute (NAMI)to the League of United Latin American Citizens, are also calling for employee vaccinations to be a priority. A NAMI spokesperson noted that the meat industry has spent more than $1 billion to implement CDC and OSHA recommendations to support and protect meat plant workers, “but access to vaccines remains the most critical tool to protect this critical infrastructure workforce.”
• FDA will publicize weekly its investigations of outbreaks in the food supply. The FDA announced November 18 that it will begin to provide weekly updates to the public concerning the agency’s activities in investigating foodborne outbreaks of bacteria and other pathogens. The FDA database that will be the source of the updates will include only multistate outbreaks and only those under active FDA investigation. “Although we won’t have all the information in the early phases of a foodborne illness outbreak investigation and often there isn’t specific actionable information for consumers, we believe that sharing what information we have early via this new table is crucial because it gives consumers and stakeholders an awareness of outbreaks being investigated by the FDA,” said Frank Yiannas, the agency’s deputy commissioner for food policy and response.
• Federal appeals court affirms dismissal of case involving Pop Secret popcorn. On December 4, the US Court of Appeals for the Ninth Circuit ruled that Jacquelyn McGee, a consumer who had filed a class action against Diamond Foods, Inc. over its Pop Secret product, did not plausibly allege that she had experienced any physical or economic injury. The court thus affirmed the dismissal of the case. McGee had said she was harmed because Pop Secret contains partially hydrogenated oils, which she said were an unhealthful ingredient. The court, however, ruled that she did not plausibly allege that because of her purchase and consumption of Pop Secret, she suffered any economic or physical injury or that she was placed at substantial risk of adverse consequences. Concerning her alleged economic injury, the appeals court held that she had not alleged that she was denied the benefit of her bargain because she could not show that the product was worth less than she had paid for it because of the presence of those oils.

• TGI Fridays is sued because its mozzarella sticks don’t contain mozzarella. On December 3, TGI Fridays was hit with a class action, filed in the US District Court for the Southern District of New York, that alleges its mozzarella cheese sticks do not actually contain mozzarella cheese. The lawsuit says that the fact that the cheese is labeled as “naturally and artificially flavored” does not effectively put the consumer on notice that there is no mozzarella cheese in it at all. Cheddar cheese, it says, is listed as an ingredient, and the predominant ingredient listed is enriched corn meal. The lawsuit contends that unlike mozzarella, cheddar is a “hard” cheese that is less suitable for chewing and lacks the dairy taste of real mozzarella. It also points out that mozzarella is more nutritious than cheddar since it contains more calcium, less fat and fewer calories.

• DLA Piper represents Blue Diamond in dismissal of a class action lawsuit. The suit had alleged Blue Diamond misled customers by labeling its product as “vanilla” when it purportedly was not flavored exclusively with vanilla extract and purportedly contained artificial vanilla flavor. Find out more here.

• US judge rejects case alleging misrepresentation of vanilla flavoring in soymilk. On December 1, the US District Court for the Northern District of California granted a motion by Westbrae Natural, Inc. to dismiss a lawsuit concerning the use of the word “vanilla” on the label of the company’s vanilla soymilk. The lawsuit claimed that the use of the word misrepresented to consumers that the soymilk’s vanilla flavor is derived exclusively from the vanilla bean plant. The court agreed with Westbrae that a reasonable consumer would not be deceived by the “vanilla” label into believing that the vanilla flavor is derived exclusively from the vanilla bean, noting that no words or pictures on the label point to the vanilla bean as the source of the flavoring.

• Judge rejects challenge to Oklahoma law on plant-based meats. A federal judge in the US District Court for the Western District of Oklahoma on November 19 rejected a claim by a plant-based meat company that an Oklahoma state law regulating the labeling of such products is unconstitutional. The court declined to block the law, which requires plant-based food companies to include a disclaimer on their labels when they use a meat term like “burger” to describe their products. Upton’s Naturals Co. and the Plant Based Foods Association had filed suit against the law, saying it chills their truthful commercial speech and harms consumers. The court, however, found that the company’s use of meat-like terms to describe its products was potentially misleading to a reasonable customer, who might conclude that the products contained meat. Upton’s Naturals plans to appeal to the US Court of Appeals for the Tenth Circuit.

• Tofurky argues in appeals court against Missouri labeling statute. In an oral argument November 19 before a panel of the US Court of Appeals for the Eighth Circuit, the manufacturer of Tofurky argued that a Missouri state law making it a crime to represent non-meat products as “meat” is unconstitutional. The company, Turtle Island Foods, was represented by the American Civil Liberties Union of Missouri, the Animal Legal Defense Fund and the Good Food Institute. The company said that the restrictions in the law are overly broad and chill truthful speech and that the law could result in prosecutions for products that are clearly vegetarian. The state attorney general’s office responded that the law is intended to reduce consumer confusion. An ACLU lawyer told the three-judge panel, “There’s no evidence of consumers not understanding the purposes here. Baby oil’s not from babies, Girl Scout cookies do not contain Girl Scouts, and nobody’s being duped by ‘Tofurky, smoked ham style.’”

• Environmental groups appeal judge’s ruling on Puget Sound fish farming. On November 23, four environmental groups appealed a ruling of a Washington state judge who had allowed Cooke Aquaculture to stock non-native steelhead salmon in net pens in Puget Sound. The groups contend that the Washington state Department of Fish and Wildlife violated state law by issuing a permit to the company without conducting an environmental impact statement, a comprehensive scientific review that would fully analyze the impact on threatened and endangered species, water quality, and the overall health of Puget Sound. The groups involved were the Wild Fish Conservancy, the Center for Biological Diversity, Friends of the Earth, and the Center for Food Safety. Opponents of the project are concerned, among other things, about viruses, parasites and diseases spreading among Cooke’s penned fish and then to wild or hatchery fish in Puget Sound.

• US House passes bill for mandatory sesame labeling. On November 17, the US House of Representatives passed a bill that makes it mandatory for manufacturers of foods containing sesame to disclose its presence somewhere on the product label. It is estimated that 1.5 million Americans are allergic to sesame, and the bill would add sesame to the current list of eight allergens that must be disclosed. The current “big eight” allergens are milk, eggs, fish, shellfish, tree nuts, wheat, soybeans and peanuts. Together, these eight, plus sesame, account for more than 90 percent of the serious food allergic reactions each year in the United States. Earlier in the month, the Food and Drug Administration recommended that manufacturers of products with sesame should voluntarily declare its presence. “Today is a big day for those living with potentially life-threatening food allergies and we will continue to work on this legislation until it is signed into law,” said US Representative Doris Matsui (D-CA), the lead sponsor of the bill.

• Maryland county mandates healthy food as default for kids in restaurants. The County Council of Prince George’s County, Maryland, on November 17 unanimously approved a measure that would make a healthy meal and a healthy drink the default option for children’s meals at all restaurants in the county, which is adjacent to Washington, DC. The bill would require restaurants to provide as their default choice a meal that limits calories, sugar, salt and fat. It would also make the default choice water, milk or 100 percent fruit or vegetable juice for kids’ meals. Other menu items and drinks can be served upon request. Restaurants will have five years to complete the changes. The nonprofit Center for Science in the Public Interest said, “What a relief for Prince George’s parents to know that there will be at least one meal combination that experts would recommend for a child.”

• Article urges stronger warnings for alcohol because of cancer risk. A December 1 article in The Counter, an online magazine, contends that less than half the general public is aware of the irrefutable link between alcohol consumption and cancer. The article points out that in October 2020, eight public health organizations petitioned the federal Alcohol and Tobacco Tax and Trade Bureau, seeking to strengthen the mandatory health disclosures on alcohol containers and packages. The article notes that public health advocates believe there is a “frustratingly stubborn gulf between what experts know about alcohol’s cancer risk and the awareness of everyday drinkers.” According to the article, stronger warnings are the answer. Among the cancers to which alcohol consumption is said to contribute are cancers of the throat, liver, breast and colon. See some of our earlier coverage of this developing story here.