This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- "Pink slime" case settles. Beef Products Inc. (BPI) and ABC News have announced the confidential settlement of a defamation case the company had filed against the network and correspondent Jim Avila over a series of news reports that repeatedly referred to the company's signature product as "pink slime" and questioned its safety. After the 2012 news reports, a public backlash against the product led to a dramatic drop in sales, and the company closed three plants and laid off about 700 workers. The case was settled on June 28, before entering the defense phase. Food Safety News reports that Avila said he wished the jury could have heard his side of the story, adding, "I think it's important to note that we are not retracting anything and we are not apologizing for anything." BPI owners Eldon and Regina Roth and their family stated, "While this has not been an easy road to travel, it was necessary to begin rectifying the harm we suffered as a result of what we believed to be biased and baseless reporting in 2012. Through this process, we have again established what we all know to be true about Lean Finely Textured Beef: it is beef, and is safe, wholesome, and nutritious." South Dakota is one of only two US states where triple damages may be awarded to food producers who prevail in libel or defamation litigation, meaning ABC could have been on the hook for as much as $5.7 billion. See our earlier coverage of this story.
- Illinois judge issues order against implementation of tax on sweetened beverages. On June 30, a judge in Cook County, Illinois issued a temporary restraining order against the implementation of a Cook County tax on sweetened beverages that had been set to go into effect July 1. The Illinois Retail Merchants Association and several grocers had filed suit to enjoin the tax, contending that it creates classifications and distinguishes between different types of beverages in a way that violates the uniformity clause of the Illinois Constitution and is unconstitutionally vague. The penny-per-ounce measure is intended to raise revenue for Cook County and makes it the largest jurisdiction in the nation with such a tax. The judge did not rule on the constitutional issues, but found that there would be "irreparable harm" to merchants if the tax were allowed to go into effect as planned. The next step will be a hearing on July 12 on the preliminary injunction; the constitutional issues will be addressed at a later date. See our earlier coverage of this measure.
- FDA extends comment period on menu-labeling rule. The FDA has extended until August 2 the public comment period on its rule requiring the labeling of calories in restaurant menus in response to requests from various stakeholders. In May 2017, the agency delayed the effective date of the rule until May 2018 and opened the current comment period. Cicely Simpson, executive vice president of the National Restaurant Association, applauded the extension. "This is an issue that is extremely important to our industry, and it's vital that our members' voices are heard," she said in a statement.
- Natural products group petitions FDA to cancel proposed changes to food labels. The Natural Products Association, which represents manufacturers of natural food products, has filed a formal petition asking the FDA to cancel the agency's proposed final rule that would require manufacturers to make changes to their disclosures under the Nutrition Facts and Supplement Facts labels. In its June 16 petition, the NPA claims that the proposed changes overly burden the food and dietary supplement industries and run counter to the Trump Administration's goal of reducing unnecessary regulations. The group pointed specifically to the new requirement to disclose added sugars as a component of all sugars and to the agency's approach to the disclosure of dietary fibers. Earlier in June, the FDA delayed the mandatory compliance date of the new labels, but has since indicated that the delay is to provide additional guidance to industry, not to reopen or shelve the regulation.
- Environmental group urges drastic limits on glyphosate in food in California. On June 21, the nonprofit Environmental Working Group urged California state regulators to impose severe limits on the presence of the herbicide glyphosate in food. Glyphosate is the key active ingredient in Monsanto's Roundup product. The California Office of Environmental Health Hazard Assessment has set a proposed limit for the herbicide at 1.1 milligrams a day – 127 times less than the US EPA's legal allowance for the average-sized American. The EWG said that, based on its studies, the level must be 100 times lower to be effective in safeguarding children's health, and it pointed to a 2015 study by a unit of the World Health Organization that found glyphosate is "probably carcinogenic" for humans. Monsanto maintains that its product is safe, and the EPA has not banned use of the chemical on food crops in the US. See some of our other coverage of this issue here , here and here.
- USDA puts forth 30 questions to the public on GMO disclosure issues. On June 27, the US Department of Agriculture put forth 30 questions for all stakeholders and the public to consider in connection with its rulemaking concerning disclosure of the use of GMOs in food. The department asked that responses to the questions be filed online by July 17, 2017. The USDA must meet a congressionally mandated deadline of July 2018 for completion of the GMO labeling rules under a statute passed last year. The proposed questions address issues such as the definition of bioengineered food, the best way to disclose the presence of bioengineered products via a symbol or a written disclosure, the best way to keep up with constantly changing digital technologies in making the disclosures, and the optimal means of assuring compliance with the GMO labeling rules.
- Here's how the food industry will probably make the required GMO disclosures. A June 20 analysis in Politico Agriculture explains that SmartLabel, a technology enabling consumers to scan QR codes on food packaging for additional information about the product and its ingredients, will be the digital solution to the requirement imposed by federal law that food and beverage manufacturers disclose when a product contains GMOs. The article concludes that some changes will probably need to be made to the existing SmartLabel software to achieve full compliance. For example packaging will need to incorporate the specific text, "Scan here for more food information" and feature GMO information more prominently on the digital site. GMO disclosure is voluntary until the congressionally mandated deadline of July 2018. Many major food companies are already using SmartLabel, and the article predicts that as the USDA and industry continue to work together, SmartLabel will become the preferred solution.