This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- FDA will delay Nutrition Facts label deadline by 18 months. FDA Commissioner Scott Gottlieb indicated on September 12 at the Politico Policy Summit that the likely compliance deadline for the new Nutrition Facts panel will be some time in early 2020, which will be about 18 months after the original compliance date of July 26, 2018. Gottlieb used a tweet to specify the likely new deadline, and the agency is expected to formally announce the deadline soon. According to Gottlieb, "the agency was not ready to implement" the Nutrition Facts revisions "on schedule." Some uncertainty remains about the content of the new Nutrition Facts panel, such as the issue of which ingredients will be classified as dietary fibers in the panel. Additional guidance is expected over the next year, including additional guidance on "added sugars." Some manufacturers say they will need the additional time to develop new labels and to take into account new rules on the labeling of genetically modified ingredients.
- Cook County board delays vote on repealing soda tax. On September 13, the Cook County Board voted to delay for about one month a vote on a controversial proposal to repeal the county's new tax on sweetened beverages. The delay will permit the board of the Illinois county, which encompasses the City of Chicago, to develop a full financial analysis of the tax. The vote came after a meeting at which retailers, beverage industry workers and suburban mayors testified against the penny-per-ounce tax, while physicians and healthcare workers testified in favor. At the meeting, the board members appeared to be divided on the issue, and a close vote is anticipated in October. Both sides have spent millions to support or oppose the measure, in campaigns, including TV, radio, rallies and even glossy postcards mailed to thousands of households. The controversy is already extending into next year's elections: the Chicago Tribune is reporting that Citizens for a More Affordable Cook County, a new organization opposed to the tax, intends to support board candidates who want to make Cook County "more affordable for working families and easier for small businesses to thrive." Meanwhile, the Tribune notes, a spokesperson for former New York mayor Michael Bloomberg, a proponent of the tax, said that, "to ensure that the elected officials who stood up against the soda industry are re-elected," Bloomberg is willing to spend "whatever it takes." The Tribune also notes that at present, there may not be sufficient votes to repeal the tax.
- Quorn manufacturer will disclose that it is a mold product. On September 1, the manufacturer of Quorn, an imitation meat product, agreed as part of the lawsuit settlement to disclose on the product's packaging that its principal ingredient, mycoprotein, is processed mold. The agreement came after the nonprofit Center for Science in the Public Interest, which was not a party to the lawsuit, filed an objection to an earlier version of the settlement. CSPI argued that the disclosure was needed because use of the term "mycoprotein" on the label disguised the fact that it was mold and the disclosure was necessary because consumption of mold sometimes causes serious gastrointestinal and respiratory problems. CSPI said it has received about 2,500 reports of adverse reactions to Quorn products. The lawsuit was filed in the US District Court for the Central District of California.
- Death wish recall. On September 21, the FDA issued a recall for 11-ounce nitro cold brew cans of Death Wish coffee, stating that the way in which the coffee is processed "could lead to the growth and production of the deadly toxin, botulin." Death Wish bills itself as the "world's strongest coffee" and is primarily sold on the US East Coast. No illnesses have been linked to the canned coffee. Customers will be able to obtain refunds for 60 days from the date of purchase; the company will resume production of the cold brew once an additional step in the manufacturing process is implemented. On its website, Death Wish thanked the inspectors who uncovered the problem, adding, "It looks like our process wasn't perfect and we're excited to revisit it with guidance from some of the most meticulous scientists in the world."
- FDA approves allergy qualified health claim for use on certain baby foods. The FDA announced on September 7 that it will permit manufacturers to use a qualified health claim related to early introduction of ground peanuts and a reduction of risk in developing peanut allergies on certain baby food products. This is the first time FDA has recognized a qualified health claim for allergen prevention. The approved qualified health claim reads: "for most infants with severe eczema and/or egg allergy who are already eating solid foods, introducing foods containing ground peanuts between 4 and 10 months of age and continuing consumption may reduce the risk of developing peanut allergy by 5 years of age." An additional disclaimer must be provided that states "If your infant has severe eczema and/or egg allergy, check with your infant's healthcare provider before feeding foods containing ground peanuts." The permission does not apply to products containing whole peanuts, because they are a choking hazard.
- Texas dairy investigated for Brucella contamination from raw milk. The Centers for Disease Control has warned that people who consumed raw milk products from K-Bar Dairy of Paradise, Texas should immediately consult their healthcare provider. Health departments are investigating illnesses in at least seven states that may have come from Brucella bacteria found in the dairy's products. Food Safety News reports that one woman has been hospitalized for weeks with a confirmed case of brucellosis. Left untreated, the symptoms of this highly infectious disease, such as fever, arthritis, depression and heart and neurological ailments, can become chronic and lifelong. Various Texas outlets are reporting that health officials are still struggling to reach hundreds of consumers, some in states as far afield as California and North Dakota, to warn them. Texas officials said K-Bar does not sell its milk across state lines; some consumers of its products may have visited the dairy or may have received products from friends or family.
- Ag-gag in the news. Numerous US states have enacted so-called ag-gag laws which target animal rights activists by criminalizing the clandestine collection of images in public places.
On September 8, the Utah attorney general's office announced it would not appeal a federal court decision that Utah's ag-gag law is unconstitutional. Capital Press noted, "If the Utah ruling had been challenged and upheld by the 10th Circuit, it would have effectively been the law of the land in the six states under its jurisdiction."
On September 7, the Tenth Circuit Court of Appeals in Denver said a pair of broadly written Wyoming "data-trespassing" laws infringe on First Amendment protections, sending the case back to the lower court, where its future is shaky.
The spotlight now turns back to Idaho, where its embattled ag-gag law, deemed unconstitutional by a federal court in 2015, is under review before the Ninth US Circuit Court of Appeals.
Other states' ag-gag laws are also in the crosshairs, with some observers predicting that several Midwest states' ag-gag laws may come under fire soon and that such court activity may discourage other legislatures from enacting similar bills.
And finally, Ag-Gag Across America, a report issued September 6 by the nonprofits Center for Constitutional Rights and Defending Rights & Dissent, sums up the nature and current status of ag-gag laws. "Between 2012 and 2014, activists defeated ag-gag bills in 20 states, many repeatedly," the report said. It concluded, "The public has a right to know how food is produced, what animal agriculture entails, and if the rivers and streams they depend on are polluted."
- CSPI appeals FDA's denial of request for information on Salmonella contamination. The nonprofit Center for Science in the Public Interest is seeking to overturn the FDA's decision not to reveal the names of supermarkets and other retailers that sold Salmonella-contaminated papayas that are subject to a recall. The FDA's Freedom of Information Act office denied the request on September 5; CSPI appealed to the Freedom of Information office of the Department of Health and Human Services, the FDA's parent agency, on September 7. The CSPI said that the information is not confidential under federal law and is not entitled to any other exemption from the act. "The FDA is supposed to be helping Americans avoid foodborne illness. It could improve by consistently disclosing retailer names and locations, along with brand names, dates of sale, lot numbers, and other useful information when it communicates with the media or with the public about recalls," said CSPI counsel Sarah Sorscher.
- FDA is pushing back compliance dates for agricultural water standards. The FDA announced September 12 that it is pushing back the compliance dates for most agricultural water testing standards defined in the Food Safety Modernization Act's Produce Safety Rule. The FDA said its intent is "to simplify our approach to make compliance less burdensome and less costly, while still being protective of public health." Speaking at a conference of state agricultural officials, FDA Commissioner Scott Gottlieb said agricultural water can be a major carrier of pathogens but that some of the standards set forth in the Produce Safety Rule are "too complicated, and in some cases too costly, to be effectively implemented." Gottlieb said that the earliest compliance date for products other than sprouts will be January 2022, rather than the original deadline of January 2018.