Food and Beverage News and Trends

Food

Food and Beverage News and Trends Series

Food and Beverage News and Trends

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This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.

  • FDA seeks public comment on possible revision of its definition of "healthy" on food labels. The FDA has begun an initiative to revisit its legal definition of "healthy" as used by manufacturers on food labels. In a September 27 blog post, Douglas Balentine, director of the FDA's Office of Nutrition and Food Labeling, said the agency has "started to consider the criteria or terms for an updated definition" of the term but doesn't yet have all the answers. Balentine said the FDA is seeking public input on several questions, such as which current dietary recommendations should be reflected in the definition of "healthy," what the public health benefits of defining the term "healthy" may be, what consumers expect from foods that carry that claim, and which criteria should be used for the new definition of "healthy." The new effort grows out of a dispute the FDA had with the snack company KIND, which received a warning letter from the FDA stating that its use of the term had violated federal rules. KIND petitioned the agency to reconsider, and the FDA decided to reverse course and revisit the definition. See some of our coverage of that story.
  • Funding has not yet been made available for GMO-disclosure study, Vilsack says. The GMO-labeling law enacted earlier this year provides for a mandatory study to be conducted by the USDA on electronic GMO labeling through the use of QR codes and similar methods. The study would assess technological challenges associated with the electronic disclosure method. However, US Secretary of Agriculture Tom Vilsack said on September 27 that officials in his department "haven't received an indication" that funding for that study will be available until early December. Noting that Congress had set a two-year deadline on the study, Vilsack said, "In the meantime, it's important for us to figure out a way to get this started."
  • Blue Bell announces a new ice cream recall due to possible listeria contamination. Blue Bell, the ice cream manufacturer that was hit hard by a listeria outbreak last year that led to a temporary shutdown of all its facilities, announced a new recall on September 21. This time, the company said, it appears that only certain packages of its chocolate chip cookie dough ice cream are at risk for possible listeria contamination. The company says no illnesses have been reported in this instance. Blue Bell announced it had identified "a potential problem through intensified internal testing" – apparently part of the enhanced food safety screenings the company was required to adopt-and notified the supplier that had provided the edible cookie dough used in the product. The product in question was distributed in 10 states.
  • EPA releases paper declaring that glyphosate is not a likely carcinogen. The EPA, in a scientific paper released September 16, concluded that glyphosate, a widely used herbicide sold under the Roundup trade name, is not likely to cause cancer. The paper said scientific research on the chemical supports the finding that glyphosate is "not likely to be carcinogenic to humans at doses relevant to human health risk assessment." In doing so, the EPA disagreed with the International Agency for Research on Cancer, which earlier this year classified the herbicide as a "probable carcinogen." See some of our earlier coverage here and here.
  • Chipotle announces new food-safety measures in effort to win back consumers. On September 21, a year after an outbreak of E. coli caused Chipotle to shut down some of its restaurants, the nationwide restaurant chain kicked off a campaign to announce new food-safety measures and to win back consumers who may have deserted the company. The chain took out full-page advertisements in national newspapers and posted a video and explanatory material on its website. Steve Ellis, the company's founder and chairman, said in the ad and video that Chipotle last year "failed to live up to our own food safety standards, and in doing so, we let our customers down."
  • Trump campaign releases, then swiftly withdraws, candidate's FDA policy thoughts. On September 15, the campaign of Republican presidential nominee Donald Trump gave some indication of what food-safety policy could be like under a Trump administration. A fact sheet published on the campaign website on that day indicated that Trump would eliminate a broad swathe of regulations issued by the "FDA Food Police" and criticized increased inspections of food manufacturing facilities as "inspection overkill." The language in the fact sheet was an almost word-for-word copy of sections of a May 2016 report from the conservative Heritage Foundation that criticized food regulation under President Barack Obama. Next, within hours of its posting, the entire FDA-related proposal was deleted from the Trump campaign's website, without explanation.
  • CSPI study criticizes Nickelodeon for carrying ads for unhealthy foods. A study released September 13 by the nonprofit Center for Science in the Public Interest concluded that Nickelodeon, a cable network that specializes in children's programming, carried food advertising in 2015 that was heavily tilted in favor of unhealthy foods. However, the CSPI noted that the percentage of ads on the network for unhealthy items decreased from 88 percent in 2005 to 65 percent in 2015. The group examined advertising that aired from 7 a.m. to 9 p.m. on the network. "Nickelodeon is failing its viewers and their parents by refusing to adopt reasonable nutrition standards to ensure that its advertising does not harm children's health," said CSPI deputy director of nutrition policy Jessica Almy. "Nickelodeon was basically a fruit- and vegetable-free zone during our study period, instead broadcasting ads for candy, sugary cereals, and unhealthy restaurant meals."
  • Soda industry has spent millions to stop soda taxes and warning labels, CSPI says. A report issued by CSPI on September 21 indicates the soda industry has spent a minimum of $67 million since 2009 trying to defeat local measures that would impose a tax or a mandatory warning label on sugary sodas. In addition, the industry is spending about $14 million per year at the federal level to oppose a possible federal excise tax on soda and to provide input on the federally mandated Nutrition Facts label. In 2014, the industry spent more than $2.4 million in an unsuccessful attempt to defeat a soda tax in Berkeley, California. It also spent $9.2 million in San Francisco, where a soda tax ballot initiative won 55 percent of the vote but failed to garner the necessary two-thirds majority.
  • Study shows that health warnings on sodas may reduce consumption by adolescents. A study, released September 7 and conducted at the University of Pennsylvania, found that warning labels on sugary sodas can reduce adolescents' purchasing by changing the adolescents' perceptions that such sodas are healthy or increase energy or focus. The study examined warnings such as "Warning: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay." The nonprofit Center for Science in the Public Interest said, "Providing this kind of information is a classic public health intervention that has been used to minimize environmental exposure to toxins, increase sanitation to prevent food-borne illnesses, and reduce the use of tobacco products. It's time to use this public health tool in the fight against soda-related diseases." The study was published in the American Journal of Preventive Medicine. It included 2,202 adolescents and found that the participants were at least 15 percent less likely to buy such a beverage after seeing the health warning.
  • Grocery stores that sell restaurant-style foods take food-safety precautions. A Wall Street Journal article September 8 points out a key trend in food safety: as supermarkets are drastically expanding their takeout restaurant-style offerings, such as sushi, pizza, soups and salads, they are taking concerted steps to ensure the safety of this prepared food and ramping up their employee training in food-safety methods. Paul Marra, manager of food safety at Wegmans Food Markets, told the Wall Street Journal, "Our stores have become mini restaurants and pubs. Prior to that, we basically sliced cold cuts and made a few salads." Last year, supermarkets sold $28 billion worth of ready-to-eat, restaurant-style food. The US Centers for Disease Control and Prevention said that in 2015, outbreaks of illness from these foods sickened 572 people in 23 outbreaks and hospitalized 42 of them.
  • Judge dismisses aspects of octopus suit but keeps other aspects alive. On September 8, the US District Court for the Northern District of California denied several aspects of a motion by Goya Foods to dismiss a class action brought against it by a consumer who had purchased Goya's canned octopus products. The plaintiff alleged that the Goya products that were labeled as containing octopus actually contained squid and therefore were misbranded under California law, and that Goya had engaged in a breach of express and implied warranty. The court ruled it is too early in the litigation to uphold Goya's claims that a class action is inappropriate. The court did grant Goya's effort to dismiss the plaintiff's claims for equitable relief, such as an injunction, finding that equitable relief is not appropriate since the plaintiffs "have an adequate remedy at law," including a claim for damages. See our earlier coverage of this story.
  • Nation's food-safety system is improving, investigative article concludes. An August 23 article in Quartz magazine finds that the US food-safety system as a whole is becoming more effective at protecting the public. Pointing to the history of the Blue Bell Creameries listeria outbreak, the article concludes that "the increase in alerts about food illness outbreaks and product recalls is a signal that the system for testing food for dangerous pathogens is working, and making strides toward improvement." It says that the number of Americans who have been sickened by food-borne illness has fallen from 27,156 in 1998 to 13,287 in 2014, and leading companies are putting in place a food-safety culture, at times with in-house food safety laboratories, which the magazine describes as key to such efforts.
  • CDC advises caution when keeping backyard chicken flocks. Accompanying the rise in popularity of backyard chicken flocks, often in urban settings, is a rise in live poultry-associated salmonellosis. The CDC has issued a warning to those who keep poultry in a home setting to remember the basics of hygiene and exercise caution in their interactions with their birds and not treat them as pets. "High-risk behaviors included keeping poultry inside the house and having close contact, such as holding, snuggling, or kissing poultry," the CDC noted. In its coverage of the warning, the website Jezebel.com headlined its story: "Hey: Don't Kiss Chickens."