Food and Beverage News and Trends

concept - check dietary supplements in petri dish at laboratory

Food and Beverage News and Trends Series

Food and Beverage Alert

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

  • How FDA and USDA fare in the federal budget agreement. Rejecting cuts that had been proposed by the Trump Administration, the Congressional federal budget agreement increases funding for USDA and FDA programs supporting such areas as food safety, agricultural research, farm loans, and animal and plant health. Among the budget items: more funding for USDA's Agriculture and Food Research Initiative; $949 million to the Animal and Plant Health Inspection Service, $51.8 million more than in 2016; $35.7 million more for implementing the Food Safety Modernization Act. Agri-Pulse comments, "In a rebuff to the White House, the budget deal requires USDA to at least maintain 2016 funding levels for USDA research programs." Research budgets will rise for such areas as corn and small grains genomics, long-term agroecosystems, the National Bio and Agro-Defense Facility, sustainable water use, wheat and sorghum, poultry, the US Wheat and Barley Scab Initiative, intelligent spray technologies and a sorghum genetic database. Overall FDA funding, reported Science magazine, is roughly in line with the Obama-era funding approach. 
  • FDA will launch program to promote GMO products. Under a little-noticed provision of the bipartisan budget agreement reached by Congress, the FDA will fund a campaign to promote the safety and benefits of genetically modified organisms GMOs in food. The agreement allocates $3 million to "consumer outreach and education regarding agricultural biotechnology," which includes genetic engineering of food and commodity crops. The money is intended to show the positive side of GMO crops, which make up 80 percent of corn and soybean crops planted in the US. This would include their "environmental, nutritional, food safety, economic, and humanitarian impacts." More than 50 agriculture and food industry groups have advocated the program to counteract what they describe as a campaign of misinformation aimed at the general public. GMO opponents in Congress have voiced criticism of the program. Representative Nita Lowey (D-NY) said, "It is not the responsibility of the FDA to mount a government-controlled propaganda campaign to convince the American public that genetically modified foods are safe."
  • USDA will resume meetings with Safe Food Coalition. The Safe Food Coalition has been told by the USDA's Food Safety and Inspection Service that the service will resume the practice of meeting with the coalition on a regular basis to discuss issues of mutual concern. A meeting has been scheduled for May 22. Since the beginning of the Trump Administration, the coalition had not had access to the FSIS for the regular meetings that had been typical under the Obama Administration. The FSIS said that scheduling conflicts and the wait for Sonny Perdue to be confirmed as agriculture secretary had been responsible for the delay. The Safe Food Coalition is a coalition of consumer groups, public health groups and trade unions that is managed by the Consumer Federation of America. 
  • Pancake and waffle products recalled. On May 5, Pinnacle Foods Inc. announced a voluntary recall of all of its Aunt Jemima Frozen Pancakes, Frozen Waffles and Frozen French Toast Slices distributed nationally in the US. No illnesses have been reported from consumption of the products, but they are being recalled as a precautionary measure after tests indicated the presence of Listeria in the manufacturing plant. All "best by" dates for the frozen prepared products are affected, but not Aunt Jemima brand syrups and dry mixes. The company announced that it is working with the FDA on the recall. 
  • USDA relaxes nutrition standards for school lunches. The USDA has announced its intent to change certain nutrition requirements for school lunches nationwide. Agriculture Secretary Sonny Perdue announced the department will delay a requirement to reduce the amount of sodium in meals and will also continue allowing schools to seek waivers for the whole-grain regulations. In addition, schools now have the option of serving flavored one percent milk – currently, only flavored skim milk is allowed. These changes represent cutbacks to nutritional initiatives championed by former First Lady Michelle Obama. The nonprofit Center for Science in the Public Interest said in a statement, "It's discouraging that just days into his tenure, one of the first things that Secretary of Agriculture Sonny Perdue will do is to roll back progress on the quality of the meals served to America's children." Perdue, however, said the Administration simply wants to give schools more time to comply. "I want to assure those of you who are concerned that we are reversing nutritional standards – no way," he said on May 1. "We're not unwinding or winding back any nutritional standards at all." 
  • Defeat for Santa Fe beverage tax. On Election Day, May 2, voters in Santa Fe, New Mexico, defeated a proposal to impose a tax on sugary drinks by a large margin. The vote was seen as a significant setback for public-health advocates who want to reduce the consumption of soft drinks. Nearly 38 percent of the city's registered voters took part in the election – a higher percentage than turned out for the city's recent mayoral election – and 58 percent said no to the tax. The two-cents-per-ounce tax would have funded pre-K education in the city. 
  • Dietary supplement industry launches product registry. On April 27, the dietary supplement industry, led by its trade group the Council for Responsible Nutrition, formally launched the Supplement OWL (Online Wellness Library), an online directory of dietary supplements, their labels and ingredients, and other information. The founders of the Supplement OWL describe it as a self-regulatory industry project that "will help increase transparency and accountability in the marketplace." Only Tier 1 of the OWL is now available. That tier is free to anyone wishing to obtain information about a dietary supplement. At a later point, the industry will open Tier 2, which for a nominal fee will provide additional information. The registry is primarily intended to be used by regulators, but its creators say it will also be used by retailers, consumers, industry members and other stakeholders. See our earlier coverage of the OWL. 
  • FDA asks supplement company about status of ongoing recall. In an unusual move, the FDA has used a warning letter to a dietary supplement company as a means of seeking information about a voluntary product recall that the manufacturer is involved in. The FDA's April 20 warning letter to California-based Naturecom Inc. noted that an FDA inspection had revealed the company had failed to follow Good Manufacturing Practice regulations for its dietary supplements. The letter ordered the company to take immediate action to correct the problems. In addition, it stated, "We acknowledge that you have voluntarily recalled your products containing 1,3-dimethylamylamine, also known as DMAA or geranium extract. Please provide this office with the status of your activities of this on-going recall and any action plan you have to prevent this from reoccurring." FDA observers say this is a very unusual request for the agency to make in a warning letter and may signal closer scrutiny by the agency of recalls of dietary supplement products. 
  • FDA denies petition on banning of perchlorate in food packaging. On April 28, the FDA denied a petition filed by the Natural Resources Defense Council, the Center for Science in the Public Interest and other nonprofits, all of which had asked the agency to begin the process of banning perchlorate in the packaging of dry food. In 2005, the FDA decided to allow the use of as much as 12,000 parts per million of perchlorate as an antistatic agent in plastic packaging for dry food with no free fat and oil. The groups had contended that perchlorate impairs hormone production critical to brain development and is harmful to fetuses, adults and children. The agency concluded, in response to the petition originally filed in 2014, that some of the requests from the nonprofits were outside the proper scope of a food additive petition, that the proven dietary exposure resulting from the use of perchlorate allowed by the exemption does not exceed the existing exemption criteria, and that the data provided in the petition were insufficient to challenge the current regulations on the use of perchlorate. 
  • Deer antler tea linked to botulism cases. The Los Angeles County Department of Public Health is calling on California consumers to dispose of deer-antler tea packed like this in the wake of one confirmed and one suspected case of botulism. The department notes, "Classic symptoms of botulism include double vision, drooping eyelids, slurred speech, difficulty swallowing and weakness. These are all symptoms of muscle paralysis" which, if untreated, may progress to respiratory failure and death. Deer antler is an important traditional ingredient in many Chinese medicinal preparations; the US, with numerous deer farms, is a global source for deer antlers. The deer antler tea in question, said the public health authority, was produced locally and packaged for Chinese-speaking consumers.