Food and Beverage News and Trends

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. 

  • Milk industry executive calls for FDA action against plant milks. At a US House of Representatives committee hearing on March 22, the CEO of the National Milk Producers Federation declared that the FDA has a legal duty to enforce existing federal standards of identity for milk, which limit the use of the term "milk" to the lacteal secretions of cows. Speaking before the House Agriculture Committee, Jim Mulhern said it is crucial for the FDA to act against manufacturers of plant-based milks and that the agency has been "negligent" in this matter. Earlier this year, a dairy industry-backed bill was introduced in Congress to attempt to force the FDA to bar non-dairy milk producers from using the term. "We're producing nature's most perfect food, and we want to reclaim it," Mulhern said. He said that the point is not that consumers are induced to believe products like almond milk come from cows. Rather, Mulhern emphasized, none of the plant-based milks provides the array of nutritional benefits of cow's milk. 
  • FDA expects to delay compliance deadline for produce safety rule. Food Safety News reported March 20 that the FDA recently indicated it will likely extend the deadline for compliance with a new produce safety rule beyond the current date, January 2018. This step will take place largely because the FDA plans to conduct a review of water quality testing standards that are part of the rule. Produce industry representatives have asserted that compliance with the water standards is excessively burdensome. The FDA believes agricultural water is a major source of contamination and food-borne illness. Industry representatives learned about the likely delay at a mid-February meeting with acting FDA Commissioner Stephen Ostroff.
  • Consumer and health groups denounce "Filthy Food Act." On March 21, a coalition of health and consumer organizations sent a letter to the members of the US Senate Committee on Homeland Security and Governmental Affairs denouncing the Regulatory Accountability Act of 2017, which the groups said should more appropriately be termed the "Filthy Food Act." The bill, passed by the US House of Representatives earlier this year, was supposedly intended to reduce what its sponsors call "regulatory red tape" but would, among other things, require federal regulatory agencies to consider the costs and benefits of each new regulation – that is, the signatories of the letter say, it would create an "unrelenting gauntlet of regulatory obstacles" and "would paralyze the federal response to emerging public health and safety threats." The letter concluded, "Putting endless regulatory roadblocks before the FDA, USDA and other public health agencies won't make them great. It will make our food less safe." The Regulatory Accountability Act next moves to the Senate, where Senators Claire McCaskill (D-MO) and Ron Johnson (R-WI), who hold the top two positions in the Senate Committee on Homeland Security and Governmental Affairs committee, have already voiced strong opposition to it.
  • Newly proposed federal budget has mixed news for food safety agencies. President Donald Trump's proposed budget, announced March 16, contains mixed news for federal food safety agencies. The USDA's Food Safety and Inspection Service, which oversees meat, poultry and eggs, would receive full funding, while the USDA as a whole would face a 21 percent budget cut. In addition, the Department of Health and Human Services, which houses the FDA and the CDC, would take a budget cut of 17.9 percent. The budget proposes that FDA obtain more funding from user fees, to be paid by industry. The Consumer Federation of America said, "Past proposals to offset appropriations with increased user fees have led to chronic underfunding at FDA and delayed implementation of the Food Safety Modernization Act. We are hopeful that as the Administration and Congress work through the appropriations process and create a more detailed spending plan, they will reach a consensus on the importance of reliable funding for FDA and continued support for strong public funding of all agencies’ food safety responsibilities." See our related reporting.
  • Consent decree shuts down maker of contaminated powdered milk. The FDA, joined by the US Department of Justice, entered into a consent decree with Valley Milk Products LLC of Strasburg, Virginia, in March that provides for condemnation of the company's milk powder products. At the same time, the US District Court for the Western Division of Virginia issued a permanent injunction against the distribution of the company's adulterated milk powder products. In November 2016, at the FDA's request, the Department of Justice filed a civil action against Valley Milk charging its products were manufactured "under insanitary conditions whereby they may have become contaminated with filth." On November 30, armed US Marshals raided the Valley Milk plant, seizing 4 million pounds of powdered milk and powdered buttermilk valued at almost $4 million. Inspectors, reported Food Safety News, uncovered internal records showing the company itself had found Salmonella in the facility and in finished products. Food Safety News also reports FDA had found Salmonella in the Strasburg plant in 2016, 2013, 2011 and 2010. Valley Milk cannot resume manufacturing until it takes corrective actions under FDA supervision. The massive recall of powdered milk from this manufacturer touched major regional and national brands, affecting an array of food products, among them candies, puddings, pancake and bread mixes, potato chips and snack cakes.
  • Pizza industry asks for delay or cancellation of calorie-labeling rule. A coalition of pizza companies, supermarkets and convenience stores known as the American Pizza Community has asked the Trump Administration to withdraw or delay a deadline for calorie labeling for pizza restaurants. The group says the rule, which was originally put forward by the Obama Administration, is extremely burdensome on the industry and provides consumers with little new helpful information. The FDA's regulation requires that restaurants with 20 or more locations post in-store menu boards that list calories for every item and combination served. Enforcement of the rule is set to begin on May 5, 2017. The industry says in-store calorie disclosures have little relevance to pizza consumers, since 90 percent of pizza orders are made online or over the phone.
  • Protein bars are recalled as a result of soy nut butter contamination. On March 24, Pro Sports Club, which sells protein bars in the State of Washington and online, recalled some of its Yogurt Peanut Crunch bars because they contain I.M. Healthy brand soy nut butter. That soy nut butter was recalled earlier in March after consumers in three states reported they had suffered E. coli infections from eating the product. At least 23 people in nine states have now become sickened by the soy nut butter, and a joint state-federal investigation is continuing. No illnesses have yet been reported specifically from the protein bars.
  • Nearly one million pounds of chicken recalled. USDA's food Safety and Inspection Service on March 23 issued a recall for nearly a million pounds of ready-to-eat breaded chicken products manufactured by OK Foods Inc. of Oklahoma City. The cooked chicken may be contaminated with "extraneous materials," such as metal fragments, which OK Foods has identified as coming from metal conveyor belting. The products are marketed under an array of brands by major regional and national food retailers and are sold to institutional users, such as schools.
  • GNC and consumer class agree to end slack fill case. On March 16, GNC Holdings Inc. and a putative class of consumers agreed to end a lawsuit that the class had filed against the company. The complaint accused the health products retailer of misleading customers by selling protein powder tubs that were underfilled. The terms of the agreement were not revealed in a one-page joint motion before the US District Court for the Southern District of California. The motion provided for the dismissal of consumers' individual claims with prejudice and of the absent putative class members' claims without prejudice. The consumers had alleged that GNC "packages its products in large, opaque containers that contain up to 55 percent empty space and that consumers, in reliance on the size of the containers, paid a premium price for the products, which they would not have done had they known that the containers were substantially empty." GNC had relied on a recent ruling by the US Court of Appeals for the Ninth Circuit that held consumers were not deceived in a slack fill case because they could see the correct net weight on the label.
  • Subway sues Canadian Broadcasting Corp. over report on its chicken. Subway has filed suit in a Canadian court against the Canadian Broadcasting Corp., which reported in February that the sandwich chain's chicken can contain up to 50 percent soy filler. Subway is claiming $210 million in damages in the case, which was filed March 16. It termed the CBC report "defamatory and absolutely false." Subway said in a statement, "Despite our efforts to share the facts with the CBC about the high quality of our chicken and to express our strong objections to their inaccurate claims, they have not issued a retraction, as we requested." The CBC replied, "We believe our journalism to be sound and there is no evidence that we've seen that would lead us to change our position." Subway says that tests by two independent laboratories verify that the product is all chicken. See our coverage of a related Connecticut lawsuit.