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 winners of its food traceability challenge. On September 13, the FDA announced the winners of its public challenge intended to encourage the development of affordable, tech-enabled traceability tools to protect people and animals from contaminated foods. The challenge took place during the months of June and July 2021. Twelve successful candidates were chosen by the agency out of 90 applicants. Frank Yiannas, the agency’s deputy commissioner for food policy and response, said in response to the applications and the selections, “Achieving end-to-end traceability – the ability to track a food’s route from source to table – throughout the food supply system can help speed the response to foodborne illness outbreaks and deepen our understanding of what causes them and how to prevent them from happening again.” He noted that cost effectiveness must be an important part of any successful solution.
• Food experts argue against FDA approach to GMO disclosures. On September 7, two food industry experts wrote in an article for the Genetic Literacy Project that the FDA should withdraw its current position that permits food companies to specify that their products were not produced using genetic engineering. The authors – attorney John J. Cohrssen and molecular biologist and former FDA official Henry I. Miller – said in the article that such “absence” claims can actually be misleading. They used the example of canned crushed tomatoes, which are sometimes touted as “non-GMO” even though there is no such thing as a GMO tomato on the market. They also said that the Non-GMO Project has gathered non-GMO endorsements for some 60,000 products, many of which could not possibly be made with GMOs. Required disclosures of the presence of GMOs, they also noted, will soon be enforced by the USDA under a new law, which may obviate the need for the FDA to permit GMO labels that are “possibly misleading.”
• FDA and FTC warn companies about their supplements' diabetes claims.  The FDA and the Federal Trade Commission, on September 9, posted warning letters to 10 companies for illegally selling dietary supplements that claim to cure, treat, mitigate, or prevent diabetes, in violation of the Federal Food, Drug, and Cosmetic Act. The FDA urged consumers not to use these products because they have not been evaluated by the FDA to be safe or effective for their intended use and they may be harmful. “More than 34 million Americans – just over 1 in 10 people— are living with diabetes,” said FDA official Cara Welch. “Dietary supplements that make fraudulent claims to treat diabetes are unapproved new drugs that could potentially harm consumers who use these products instead of seeking safe and effective FDA-approved treatments.”
• Pennsylvania regulators ration sale of some popular liquors. On September 17, Pennsylvania’s Liquor Control Board, which regulates the state’s nearly 600 places at which liquor is sold, issued an order limiting the sale of some popular alcoholic beverages to two bottles per person per day. The order applies to purchases by restaurants, bars and wedding vendors as well as by individuals. The board said that the restriction is a result of supply-chain problems resulting from the COVID-19 pandemic that have reduced the amount of product available to stores. Forty-three beverages are being rationed under the law, among them Dom Perignon champagne, Patron tequila, Hennessy cognac and Buffalo Trace bourbon. The board announced that the new policy will apply indefinitely.
• Chocolate milk is recalled because of lack of pasteurization. On September 21, Green Field Farms Dairy of Fredericksburg, Ohio, announced a recall of 1,242 units of its whole chocolate milk product because a laboratory analysis indicated the product has not been effectively pasteurized to kill harmful bacteria, parasites and viruses. The products were distributed in Ohio, Indiana, Kentucky, Maryland, New Jersey, New York, Pennsylvania, Virginia, Delaware and Washington, DC from September 7 through September 16, 2021.  No illnesses have been reported arising from consumption of the milk.
• Not enough vegetables? On September 17, a California consumer filed a proposed class action alleging that the Kellogg Sales Company is making false representations concerning its MorningStar vegetarian imitation meat products – specifically, that they contain too few vegetables. The complaint says Kellogg “prominently represents that the Veggie Products are ‘VEGGIE,’ but this representation is false or at least highly misleading because the predominant non-water ingredient in all of the Veggie Products is not vegetables – or even vegetable-based – but instead, grain or oil.” For example, the complaint says that the MorningStar Veggie Dog lists as its first three ingredients water, wheat gluten and corn syrup solids, none of which is a vegetable. The plaintiff says in the complaint that the company is trying to take unfair advantage of consumers’ desire to eat a more plant-based diet. The complaint was filed in the US District Court for the Northern District of California.
• Not enough graham flour? A class action lawsuit filed on September 18 alleges that Stop & Shop graham crackers are not what they’re cracked up to be. It alleges that the name of the crackers, manufactured by Ahold U.S.A. Inc., suggests they are made predominantly with whole grain graham flour. Actually, according to the complaint, “enriched wheat flour” is listed as the predominant ingredient, ahead of “graham flour.” The package label features the product’s name, Naturally Flavored Cinnamon Graham Crackers, with images of dark-colored crackers. Graham flour is a coarsely ground whole wheat flour that is commonly used to make graham crackers as well as some breads and cereals. The plaintiff is alleging that consumers are being deceived to believe that there is more graham flour in the crackers than there actually is. The complaint was filed in the US District Court for the Southern District of New York.
• Federal court dismisses another vanilla case. On September 22, the District Court of the Southern District of New York dismissed a class action that had alleged the vanilla-flavored version of Aldi almond milk was falsely marketed. Claiming he decided to purchase the milk based on representations that it contained real vanilla, the plaintiff had accused the grocery chain of committing “food fraud.” However, in dismissing the case with prejudice, the court concluded that no one expects the flavoring in a vanilla-flavored product to be made entirely or predominantly of actual vanilla: “A reasonable consumer would understand that the word ‘vanilla’ on the front of the carton describes how the product tastes, not what it contains, especially in circumstances where the ingredients listed on the product container do not mention vanilla at all.” In recent months, dozens of lawsuits charging misrepresentation of vanilla flavorings have proliferated across the country.