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.

• Hostess and FDA announce recall of certain hamburger buns and hot dog buns. On August 16, the FDA announced that Hostess Brands, LLC, is voluntarily recalling certain Hostess Soft White Hamburger Buns and Soft White Hot Dog Buns due to potential contamination with Listeria monocytogenes and Salmonella. Hostess Brands is recalling the products, the FDA said, out of an abundance of caution after its co-manufacturer, Best Harvest Bakeries, discovered a potential problem through its environmental monitoring program. To date, Hostess Brands has received no reports of illness related to this issue.
• Vegan butter company prevails. On August 11, the US District Court for the Northern District of California found that Miyoko’s Creamery, which sells plant-based dairy-type products, is not causing any consumer confusion by labeling its products with names like “Vegan Butter” and with its on-pack terminology, including the terms “Lactose Free” and “Cruelty Free.” The decision resolves Miyoko’s dispute with California’s Department of Food and Agriculture over the company’s use of terms such as “butter” for its entirely vegan products. CDFA had also demanded that Miyoko’s cease using the term “cruelty-free” and that it remove an image of a woman hugging a cow from its website. The photo was taken at Rancho Compasión, an animal sanctuary founded by Miyoko Schinner, owner of Miyoko’s, and her husband. The court found that the question is not whether the use of the word “butter” violates the FDA’s standards of identity, but whether the word, when accompanied closely by terms such as “vegan” and “made from plants,” amounts to misleading commercial speech. The court noted that the state was unable to produce testimony from any consumers who were misled by the word “butter” on Miyoko’s vegan spread. Schinner said “Food is ever-evolving, and so too should language to reflect how people actually use speech to describe the foods they eat.”
• Appeals court strikes down key part of Kansas ag-gag law. On August 19, a divided three-judge panel of the US Court of Appeals for the Tenth Circuit issued a ruling that permanently blocks the enforcement of key provisions of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act which had sought to ban secret filming at slaughterhouses and other livestock facilities. So-called ag-gag laws have been passed in various states but are often challenged on constitutional grounds; here, the court’s majority found that the Kansas statute seeks to stifle speech critical of animal agriculture and thus violates the First Amendment. “The statute is not limited to false speech lacking constitutional protection. Instead, it punishes entry with the intent to tell the truth on a matter of public concern,” the court wrote. Stephen Wells, executive director of co-plaintiff the Animal Legal Defense Fund, said the decision made clear that Kansas cannot legislate speech and is "a victory for animals throughout the state who suffer in secret."
• Federal appeals court reinstates challenge to Arkansas ag-gag law. On August 9, the US Court of Appeals for the Eighth Circuit reinstated a First Amendment challenge that had been filed by several nonprofit groups against the Arkansas 2017 ag-gag law. The law authorizes farms and other businesses to file suit if a group’s undercover investigator surreptitiously records their operations and shares the information in a way that harms the business. The 2-1 ruling reversed last year’s decision by a US district court to dismiss the lawsuit. That court had found the nonprofits lacked standing because they had alleged no concrete or “certainly impending” injury since they hadn’t actually embedded investigators in the poultry and pig farms they were suing. But the appeals court said that “a plaintiff need not expose itself to liability in order to show an injury in fact, and the statute’s deterrent effect on the investigations is sufficient to establish an injury.”
• Not enough berries? On August 16, Kashi Sales, LLC, became the target of a class action filed by a consumer who alleges that the company’s Mixed Berry breakfast bars are misleadingly labeled. The labels contain images of blueberries, a blackberry and a strawberry, while the “mixed berry concentrate” in the product lists pear juice as its most predominant ingredient, followed by tapioca syrup and cane sugar; blueberry puree concentrate is farther down the list. According to the complaint, the product’s labeling “creates an erroneous impression that the Product contains more mixed berry ingredients than it does.” In addition, according to the complaint, the product’s name, “Mixed Berry – Soft-Baked Breakfast Bars,” is misleading because the name contains the words “Mixed Berry,” but the name does not include pears and apples, even though these fruits are stated in the ingredient list in fine print.
• New Yorkers are urged to support bill requiring disclosure of sugar in chain restaurant foods. On August 16, a blog post published by the nonprofit Center for Science in the Public Interest said that chain restaurants need to tell the truth about how much sugar and salt their offerings actually contain. It noted that, on average, a standard restaurant meal contains 2,110 milligrams of sodium and 68 grams of sugar, the equivalent of the consumption by one person of more than 16 packets of salt and 17 packets of sugar all at once. The post urged readers to support the Sweet Truth Act, a proposed bill in the New York City Council, which would require warning icons on menus for items that exceed an entire day’s worth of added sugar. The post also pointed out that according to a survey, 85 percent of New Yorkers support warnings on products that contain excessive added sugar.
• California olive oil producers reach agreement on state labeling bill. According to an August 10 article in Food Navigator USA, a California state bill that would have prohibited any reference to the state of California on olive oil bottles that did not contain 100 percent California-sourced olive oil has been amended; both supporters and opponents of the original bill are content with the new version. Earlier in the legislative session, the California olive oil industry had expressed divided views about the bill. A major producer, California Olive Ranch, thought that an earlier version of the bill was a blatant attempt to go after its popular “Global Blend” olive oils, which combine California olive oil with oils from other countries. But the latest version of the bill simply says that olive oil producers that sell blends of this type must state on their labels the minimum amount of California-sourced olive oil in their product in the same type and font size as the word “California.”
• Academic study says many “wild mushroom” labels are false. A study published on August 2 by the University of Utah and the Natural History Museum of Utah examines 16 “wild mushroom” food products offered by an online retailer and several grocery stores, concluding that the product labels that claim to include wild mushrooms are mostly false. DNA barcoding tests showed that only five of the products actually contained wild mushrooms. The rest were made from cultivated fungi like oyster, shiitake and portobello. One sample even included Amanita phalloides – the toxic Death Cap mushroom, which can cause renal failure and death in humans. The researchers for the study, which was published in the open-access journal PeerJ Life & Environment, said they weren’t surprised by the findings. Regulations on mushroom sales vary widely from state to state, and only 31 states have any regulations at all.
• Groups set forth basic ethical principles for gene editing in agriculture. In an August 11 article published in the journal Nature Biotechnology, six nonprofit groups – the Center for Science in the Public Interest, Consumer Federation of America, Environmental Defense Fund, National Wildlife Federation, The Nature Conservancy, and World Wildlife Fund U.S. – set forth six basic principles that they say should be followed in the practice of gene editing in agriculture and the environment. These principles are effective, science-based government regulation; voluntary best practices that complement regulatory oversight; risk avoidance and delivery of tangible societal benefits; robust, inclusive societal engagement; inclusive access to technology and resources; and transparency on gene editing products in the environment. The groups pointed out that gene editing potentially holds great benefit for humanity but that it also carries significant risks.