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.

• Avian flu.  On March 8, state agriculture officials and the USDA confirmed outbreaks of the H5N1 strain of avian flu in commercial chicken and turkey flocks in Delaware, Iowa and Maryland. Iowa Governor Kim Reynolds signed a disaster proclamation which opens up resources to help with disposal of the affected flock of 50,000 turkeys as well as disinfection of the farm.  The H5N1 strain first appeared in the US this year in a commercial flock in Indiana, in early February. In the last few days, the virus has also been found at commercial poultry farms in South Dakota and Missouri.  Avian influenza is an airborne respiratory virus that spreads easily among birds; this outbreak, likely exacerbated by migrating wild birds, has now affected commercial and backyard flocks in 12 US states.  At this writing, about 2.8 million birds have been culled in the US.  See our earlier coverage of this outbreak.
• EPA revokes all tolerances for the pesticide chlorpyrifos on crops. On February 25, the Environmental Protection Agency issued an order denying all objections to a rule it had promulgated last year which revokes all permissions for use of chlorpyrifos on food crops, noting its conclusion that all possible uses of the pesticide on crops have the potential to harm the public. The effect of the EPA’s action is to prohibit US agricultural applications of the pesticide, which has been extensively used on such crops as soybeans, corn, wheat, legumes, peanuts, fruit and nut trees, broccoli, and cauliflower. After February 28, any US-grown food treated with chlorpyrifos will be regarded as adulterated and will be ineligible to be distributed in interstate commerce. Chlorpyrifos works in the human body by blocking an enzyme which control messages traveling between cells, leading to neurological damage.  Studies as early as 2003 linked it to low birth weight in infants and then, in those same infants, subsequent persistent neurodevelopmental delays. In 2007, two nonprofits, the Pesticide Action Network and the Natural Resources Defense Council, petitioned the EPA to ban the chemical, citing evidence of neurological damage to humans.  In April 2021, a federal court gave the agency 60 days to either ban chlorpyrifos on food or show it was safe. In August 2021, the agency announced the proposed rule banning its use. Imported foods treated with chlorpyrifos may still be sold in interstate commerce under 21 U.S.C. 346a(l)(5), the so-called channels of trade provision; and chlorpyrifos can still be applied to certain crops intended solely for export.
• FDA reveals recent survey results for PFAS in food, says no cause for concern. On February 24, the FDA announced the results of its latest tests for perfluoroalkyl or polyfluoroalkyl substances, collectively referred to as PFAS, in food. These are a large group of synthetic chemicals used in many manufacturing processes, including some food packaging and production, and have been highlighted by food watchdog groups as potentially dangerous. The agency announced that results from its most recent survey of the general food supply showed that 89 of 92 food samples had no detectable levels of PFAS. Three seafood samples – tilapia, cod, and shrimp – did have detectable levels of PFAS. The FDA also said that based on the best available current science, it has no scientific evidence that the levels of PFAS found in the samples tested to date indicate a need for consumers to avoid any particular food.
• FDA is asked to revise its rules on state and local regulation of food labeling. On February 28, the Center for Science in the Public Interest and the Philadelphia Department of Public Health petitioned the FDA to amend its regulations concerning state and local petitions for exemption from the preemptive effects of the Food, Drug, and Cosmetic Act’s nutrition and menu labeling standards. The authors of the petition said this change would enable states and localities to pass innovative food labeling laws that advance public health. Currently, federal law says that in almost all circumstances, the FDA’s regulation of nutrition and menu labeling preempts state regulation, meaning that states and localities can go no further than the FDA in regulating in this area. States can petition for exemptions, but the CSPI and the department said in their petition that the exemption process is “broken.” They noted that “to balance the interest in uniform national labeling with States’ and localities’ ability to innovate, it is essential that the process for seeking an exemption under the FDCA be efficient and fair.”
• FTC acts against misleading claims of COVID-19 cure in tea. On March 3, the Federal Trade Commission, acting jointly with the US Department of Justice and the FDA, filed a civil lawsuit against B4B Earth Tea, a New York-based company, seeking to permanently block its allegedly deceptive advertisements that claim Earth Tea Extra Strength is clinically proven to treat, cure and prevent COVID-19. The FTC also is seeking to impose civil penalties on the company and its owners under the COVID-19 Consumer Protection Act. “Without any scientific evidence, the defendants claimed that drinking their herbal tea is more effective in preventing COVID-19 than approved vaccines, and cures anyone who has gotten ill within 24 hours,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “In bringing this matter with our partners at the Department of Justice and the Food and Drug Administration, the Commission continues its commitment to using every tool available to stop and deter those who would treat the pandemic as opportunity to peddle bogus treatments.” At this writing, the front page of the company website says, “We are been sued by the government because Our Natural Immune Booster helps our body naturally. Its available in the USA until a decision is made against us.”[sic] One section of the website continues to offer materials from the company’s “Clinical Trial #1 Against Covid19.”
• Royal Ice Cream expands recall to 14 brands and nine states. On February 13, the Royal Ice Cream Company, Inc. of Manchester, Connecticut, announced it is expanding a recall of its ice cream products to include all products manufactured at the facility within a certain time period, because they have the potential to be contaminated with Listeria monocytogenes. The recall was initiated by the company after sampling by FDA inspectors revealed the presence of Listeria monocytogenes on processing equipment. To date, no illnesses have been reported. Pregnant women, newborns, older adults, and people with weakened immune systems are particularly susceptible to listeriosis infection. The recall now affects 14 brands produced by Royal and sold in retail stores in nine states, among them New York, Texas, Florida and Louisiana.
• Case over the labeling and packaging of strawberry Pop-Tarts is dismissed. A US district court on March 1 dismissed a lawsuit against Kellogg’s concerning the labeling and packaging of its strawberry Pop-Tarts. The US District Court of the Northern District of Illinois ruled that although the packages for the toaster pastry show oozing red filling and a half of a strawberry, no reasonable consumer could conclude that the filling contains a certain quantity of strawberries, or more strawberries than other ingredients such as pears and apples, just based on the package’s images and its use of the term “strawberry.” The plaintiff had contended that Kellogg’s had violated Illinois consumer law. The judge said, however, that the plaintiff’s interpretation of the label is “unreasonable and unactionable.”
• Agriculture groups split on whether hydroponic crops can be “organic.” On February 25, a broad segment of the US agriculture industry expressed its views, in an amicus curiae brief in the US Court of Appeals for the Ninth Circuit, on whether hydroponically grown crops satisfy the federal definition of “organic” crops. The groups voted in the affirmative. The amicus brief supported a District Court ruling that held that the US Department of Agriculture’s “ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA (Organic Foods Production Act).” Hydroponic crops are those that are grown using water-based nutrient systems without any soil. Although these groups supported the District Court, the Center for Food Safety, which represents a broad coalition of organic farmers, certifiers, and organic nonprofits, is taking the opposite view in the litigation – that hydroponic farms by definition can’t comply with federal organic standards.
• Russia-Ukraine crisis and the global food supply. On March 5, the International Monetary Fund warned that the crisis in Ukraine will have a “severe impact” on the global economy, including driving food prices higher.  The effects are already being felt in grain markets.  Russia and Ukraine together grow about a quarter of the world’s wheat and are major exporters of corn, barley, and cooking oils. “The upheaval will touch every food consumer on Earth, even those living in food-secure countries such as the United States,” David Frum wrote in The Atlantic on March 8. “If the price goes up for anyone, it goes up for everyone…. Higher food prices will be a stress and a burden for hundreds of millions of people all over the world.”  But, Frum added, “a stress is not a crisis, and a crisis does not have to be a catastrophe.”Global-level policies to manage the food supply can ameliorate rising prices and political instability while ensuring adequate food.  He concluded, “Dealing with the food-price increases that this conflict will bring will not be easy. But it can be done.”