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.

  • FDA formally delays effective date of new Nutrition Facts label. The FDA has extended the compliance deadline for the new Nutrition Facts label until January 1, 2020 for large manufacturers and January 1, 2021 for manufacturers with sales below $10 million. The move, announced September 29, was made in response to industry concerns that companies needed more time to change their labels and that the deadline should take into account the July 2018 deadline for disclosure of GMO ingredients in food. FDA has also indicated that it intends to release additional guidance to industry regarding compliance with the new regulations. The nonprofit Center for Science in the Public Interest criticized the deadline extension, stating: “The Food and Drug Administration’s decision to cave in to food industry demands and delay the deadline for companies to update their Nutrition Facts labels harms the public’s health, denies consumers vital information, and creates an unfair and confusing marketplace as many companies have gone ahead with the labels anyway.”
  • Court approves agreement on effective date of FDA menu disclosure requirement. The US District Court for the District of Columbia has approved an agreement between the FDA and two nonprofit groups (CSPI and National Consumers League) that had sued the agency after FDA delayed the enforcement deadline just one day before the May 2017 enforcement date. The agreement, filed on September 15 and approved on September 27, stays the proceedings while FDA works towards the May 2018 compliance date; the lawsuit will proceed only if FDA announces an additional delay or fails to issue guidance to industry by the end of 2017. The parties agreed to the stay after FDA Commissioner Scott Gottlieb announced on August 25 that there would be no further delay and no changes to the menu labeling requirements.
  • SF ordinance looks at antibiotics used by meat and poultry suppliers. On October 3, the Board of Supervisors of San Francisco passed a first-in-the-nation ordinance requiring large retailers to file annual reports on the antibiotics their poultry and meat suppliers use. The information will be made available to the public. The law affects only companies with more than 25 locations worldwide – that is, in all of San Francisco, only about 120 stores must comply, all of them large regional or national companies. In an article entitled “A way to move SF consumers away from meat containing antibiotics,” the San Francisco Chronicle said that Debbie Raphael, the city’s Department of the Environment Director, thinks the measure will encourage grocers to take a hard look at their supply chains. However, as Food Safety News noted, grocers are concerned because the ordinance “holds them responsible for information that they say they do not control.” As the World Health Organization reports, the spread of drug-resistant pathogens “threatens the effective prevention and treatment of an ever-increasing range of infections” and “is an increasingly serious threat to global public health.” The ordinance also requires city departments to audit their meat and poultry purchases and to explore ways to transition to antibiotic-free meats. Plans are afoot in San Francisco to enact a more far-reaching policy.
  • Will this Oregon county be the next to impose a tax on sugary beverages? A campaign is under way to make Multnomah County, Oregon the next jurisdiction to impose a tax on sweetened beverages. Multnomah County’s county seat is Portland, the state’s largest city. The campaign, which kicked off on September 16 and is sponsored by a group called the Coalition on Healthy Kids and Education, aims to get a tax referendum on the ballot in May 2018 and needs 18,000 signatures to reach that goal. The tax would amount to 1.5 cents per ounce, or an additional 18 cents for a 12-ounce soda. 
  • Appeals court blocks San Francisco ordinance on beverage ads. On September 19, the US Court of Appeals for the Ninth Circuit issued a ruling that blocks a San Francisco city ordinance mandating health warnings on advertisements for sugar-sweetened beverages on buses, billboards and buildings in the city. The ordinance was passed in 2015 in an effort to reduce the incidence of obesity, diabetes and tooth decay, but has not yet gone into effect. The appellate judges found the warning is “not purely factual” and “unduly burdens and chills protected commercial speech.” They also noted that the ordinance only covers sweetened beverages but does not apply to other products with the same amount of sugar or more; the court therefore ruled that the ordinance will not go into effect during the duration of a lawsuit filed by the American Beverage Association. A spokesperson for the city attorney’s office said that the city remains “committed to being a leader when it comes to protecting the health of our residents, particularly our children.”
  • New bill would lead to crackdown on fake organic food imports. Two members of the US House of Representatives have introduced legislation to crack down on the importation of fake organic products by increasing the oversight and enforcement of organic standards. The bipartisan bill, the Organic Farmer and Consumer Protection Act, comes in the wake of a report from the USDA’s Office of Inspector General revealing that millions of pounds of imported grain and animal feed, fraudulently labeled as organic, have entered US ports, and that the Agricultural Monitoring Service does not have processes to prove imports labelled organic come from suppliers that follow organic standards. Various media are reporting that there is not even an effective procedure to prevent legitimate organic products from being sprayed with nonorganic insecticides upon arrival. The USDA also noted that the flood of fake organics may “create an unfair economic environment for U.S. organic producers.” The bill, introduced on September 27 and endorsed by many members of the US organic-food industry, would authorize the spending of $15 million to $24 million annually to boost enforcement and compliance.
  • Labeling claims against Motts dismissed. On September 21, the US District Court for the Central District of California dismissed a class action that had accused Motts Inc. of misleading consumers into believing its fruit snacks are healthful by using pictures of fruit on the labels, even though the snacks are made from purees, juices and concentrates and not from whole fruit. According to the court, the claims against Motts were contradicted by the snacks’ labels themselves, which said that the snacks were “not intended to replace fruit in the diet.” The court also noted that an independent review of the products’ labeling showed that the snacks do contain the fruits and vegetables shown on the packaging, are made from fruit and vegetable juice and contain the correct amount of Vitamin C.
  • Nonprofit group claims coffee contains carcinogen, seeks warnings on coffee products. In an ongoing lawsuit that resumed September 25 in a Los Angeles state court, a nonprofit group is proposing that manufacturers, distributors and retailers be required to post warnings about a potential cancer-causing chemical – acrylamide – created during the coffee-roasting process. Acrylamide is found in cooked foods such as French fries and is also a natural byproduct of coffee roasting. The group, the Council for Education and Research on Toxics, asserts in the lawsuit that Starbucks and about 90 other companies, including grocery stores and retail shops, have failed to comply with California’s Prop 65 warning requirements about hazardous chemicals. The group says it is bringing the case in order to pressure coffee manufacturers to remove the chemical from coffee.
  • Government study indicates FDA doesn’t always act to stem food contamination. A study released September 27 by the Office of the Inspector General of the US Department of Health and Human Services found that in 20 percent of cases of possible food contamination that occurred between 2011 and 2015, the FDA did not take appropriate corrective actions. According to a Washington Post article, the study “raises questions about FDA procedures for making sure America’s food is safe. It has also prompted concerns as to whether the agency has the resources to fulfill the objective” of food safety. An author of the Inspector General report said, “These inspections are essential. The follow-up is essential. That’s how you ensure a safe food supply – and we found a number of really serious problems.” An FDA spokesperson said that the agency “will continue to work to fulfill our mission to the best of our ability with the resources allocated.” Members of Congress have noted the study’s results and have called for additional FDA funding to meet the shortfall in enforcement.
  • Consumers claim to have gotten food poisoning from eating at popular cookie dough shop. On September 21, two consumers in New York City filed a class action in the US District Court for the Southern District of New York against Do, a popular restaurant that sells raw cookie dough. The plaintiffs allege they developed food poisoning just hours after eating Do’s products. Do says its products are completely safe to consume because they are made with pasteurized egg products and heat-treated flour. In response to the lawsuit, Do said, “We stand behind the safety of our products and our representations about our products. We will fully and faithfully defend ourselves against any and all false accusations.”