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.

Congress passes stopgap funding bill with FDA funding but no additional regulatory aspects. On September 30, Congress passed a crucial stopgap funding bill that includes the much-needed reauthorization of the FDA’s user-fee programs. The reauthorization bill averted layoffs at the FDA and permitted the agency’s approval processes for drugs and medical products to continue. However, the bill did not contain any provisions sought by Democrats to regulate the food-supplement industry, which were jettisoned to secure Republican support. Immediately after the House passed the bill by a vote of 230-201, FDA Commissioner Robert Califf emailed agency staff thanking them for their patience and their continued service. In late July, he had warned staff that if Congress didn’t pass a user fee reauthorization bill, the agency would have to send out letters warning staff they may be laid off.

Biden Administration sets forth a new set of food and health proposals. On September 27, the Biden Administration unveiled a collection of nutrition, wellness, health, and accessibility proposals that seek to end hunger and increase dietary and physical health among Americans by 2030. The National Strategy on Hunger, Nutrition and Health is a mix of executive actions and legislative proposals released ahead of the White House Conference on Food, Nutrition and Health, which was held on September 28. Among the proposals are the creation of a front-of-pack labeling system to help consumers quickly see the nutritional aspects of a product and a planned initiative to make nutritional information more available to consumers when they shop for groceries online. In addition, the Administration is calling for another look at the voluntary salt reduction guidelines that were issued last year and for a way to set up voluntary guidelines for the amount of sugar in a product. The administration said it does not have a timeline to complete these initiatives but would like to move quickly.

New funding to help increase food security in Indigenous communities in BC. The British Columbia Minister of Agriculture and Food has announced a new program supporting agricultural projects in Indigenous communities in partnership with the BC Indigenous Advisory Council on Agriculture and Food. The Indigenous Food Systems and Agricultural Partnership Program will provide funding to Indigenous groups that will be used to strengthen Indigenous food systems and increase Indigenous participation in the agriculture and food sector, while recognizing the value of Indigenous food systems in the overall well-being of Indigenous people. Eligible applicants must be either an Indigenous government or nonprofit organization, or an Indigenous business or entrepreneur engaged in food production or processing (either nonprofit and for-profit). The types of activities covered by the funding includes training and skills development, adopting new technologies or practices, and scaling up existing production. Applications for the program will be accepted until October 31, 2022.

Positive outlook for Canada’s food and beverage processors over the rest of the year amid rising inflation rates. Although inflation and interest rates are rising, Farm Credit Canada (FCC) projects that the monetary value of food and beverage sales overall will grow and remain strong over the rest of the year, finishing up 9 percent overall from last year. However, despite sales data showing an increase in sales for certain products, it is anticipated that fewer products may be sold this year due to higher prices. FCC expects that seafood, breweries and wineries will see falling sales in the rest of the year. Job vacancies remain high and the food manufacturing industry continues to experience difficulties attracting talent without raising compensation. FCC does not believe that these trends will persist long-term:  as interest rates peak and the rate of inflation slows, FCC expects consumers to return to pre-2022 shopping habits, forecasting an increased demand for products that consumers have cut back on, like beef.

Latest version of Iowa “ag-gag” law is struck down. On September 26, the US District Court for the Southern District of Iowa struck down the latest version of Iowa’s “ag-gag” law on the grounds that it violates the First Amendment. The law prohibits people from making undercover photographs or videos in animal-processing facilities. Previous versions of the state law had also been struck down on similar grounds. “It is true that the act does not prohibit the editing, publication, or distribution of recordings or photographs on trespassed property,” the court said of Iowa’s current law. “But it restricts the capture of such recordings or photographs, rendering the remaining steps in the protected video production process impossible. The act of recording is a necessary predicate to produce this protected speech and is protected under the First Amendment.”

Class action lawsuit alleging pork products were contaminated with e.coli certified in Alberta. The Alberta Court of King’s Bench has certified a class action lawsuit concerning an e.coli outbreak that occurred in Edmonton in the spring of 2018 which is alleged to have been caused by pork products produced by The Meat Shop at Pine Haven, a meat-packing and retail store operated by the Pine Haven Hutterite Colony and the Hutterian Brethren Church of Pine Haven. It is alleged that the contaminated pork resulted in at least 43 illnesses, 14 hospitalizations, 5 cases of hemolytic uremic syndrome and one death. The lawsuit alleges that the operators failed to prevent and contain the outbreak. The plaintiffs are seeking a CA$16 million compensatory award for physical and mental damages, medical expenses, and lost wages.

Article takes a hard look at Salmonella in chicken. An investigative article published in Civil Eats magazine on September 27 points out many of the difficulties in keeping the US supply of chicken free of Salmonella contamination. The article pointed out “a larger, complicated truth about government oversight of Salmonella in poultry”: the fact that “while multiple agencies test chicken and turkey for contamination, track illnesses, research the problem, and issue voluntary recalls, they do not have the power to prevent contaminated chicken from being sold to consumers in the first place. Similarly, those agencies can’t shut down plants that repeatedly violate standards, nor require Salmonella prevention practices on farms.” The article said that cases of Salmonella poisoning have not declined in recent years, that this is the single most important cause of food poisoning in the nation, and that chicken is the single largest contributor. It noted that while President Biden has appointed well-qualified people to deal with the problem, “there are plenty of barriers to meaningfully reducing illnesses, given the prevalence of Salmonella in chicken, the interests involved, and the regulatory barriers in place.”

Merriam-Webster adds new food words to dictionary. Autumn across the Northern hemisphere is the time for cozy sweaters, falling leaves and crisp weather, and it’s also when the Merriam-Webster dictionary announces the new words it is adding to its lexicon. This year, nine of the 370 new words are food related. Among the words: banh mi; ras al hanout; oat milk; plant-based; and, yes, pumpkin spice, which, incredibly, was not in the lexicon before.