This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- When is rice not rice? On March 25, Arkansas Governor Asa Hutchinson signed a "Truth in Labeling" bill that prohibits products from being called "rice" unless they actually are made from rice. That means that "riced" vegetables, such as cauliflower rice,will no longer be permitted to be labeled with that term. The purpose of the bill, the governor said, is "to protect consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans." Arkansas, the leading rice-producing state in the nation, is the sixth state to pass a truth-in-labeling law and the only one to include rice. Like the other five state laws, the Arkansas act forbids using the word "meat" to label cultured meat and vegetarian meat substitute products.
- Three more states move to prohibit use of term "meat" for cell-cultured products. Three states – Montana, Mississippi and South Dakota – have become the latest to pass laws criminalizing the use of the term "meat" for products that do not come from animals that were slaughtered. The traditional meat industry has been pressing for such action in state legislatures in response to the growth of the cell-cultured meat industry and the rising popularity of vegetarian meat substitutes. The laws have been enacted in Mississippi and South Dakota, while the Montana law is awaiting the signature of Governor Steve Bullock. After Missouri passed a similar law in late 2018, the American Civil Liberties Union and others sued the state; the terms of the settlement in that case have not yet been announced. Similar statutes have been introduced in the legislatures of 10 more states.
- FDA is considering creating an agency-approved "healthy" icon. Outgoing FDA Commissioner Scott Gottlieb said in an interview March 28 that the agency is considering creating an FDA-approved labeling icon indicating that a food product is "healthy." Before doing so, Gottlieb said, the agency would first have to develop an official definition of the term "healthy," a process that he said may be completed by summer 2019. The exact look and appearance of a possible "healthy" icon is unclear. "There’s sort of rigorous debate going on about whether or not we include the FDA logo in the logo," Gottlieb said. Furthermore, once a permanent successor to Gottlieb is in place at the agency, it is unclear whether this initiative will continue. You may also be interested in our FDA Alert, "New Acting FDA Commission Sharpless: 4 key issues to watch."
- Alaska city defeats proposed tax on alcohol sales. A proposed 5 percent tax on retail alcohol sales in Anchorage, Alaska was defeated at the polls on April 2.The tax was intended to help the city pay for costs associated with homelessness and substance abuse. City Mayor Ethan Berkowitz, a supporter of the proposed tax, blamed aggressive spending by outside interest groups for the defeat at the polls. "The fact that there’s hundreds of thousands of dollars of money that went in to distort the truth and tell lies to the public, that had a big impact on how people voted," Berkowitz said on election night.
- New York state takes steps to foster mead production. New York state has taken regulatory steps to encourage the production and sale of mead. . A product of the fermentation of honey, fruits, herbs and water, mead is an ancient beverage that archeologists have dated back to 9,000-year-old pottery vessels in China and 5,000-year-old Bronze Age vessels in Europe. There are at least 400 meaderies in the US, most basing their products on locally produced honeys. On March 20, New York Governor Andrew Cuomo announced he state is accepting applications for farm meaderies under the same type of license used for farm wineries, distilleries, breweries and cideries. Such farm meaderies will also be able to sell their products on site. Lieutenant Governor Kathy Hochul said, "Increasing opportunities for farms to produce mead will allow our craft beverage manufacturers to continue to grow. As a leading producer of honey in the Northeast, the creation of the farm meadery license in New York State will increase the tourism industry and continue to grow the economy of communities across the state."
- USDA sued over changes in school-meal nutrition rules. In December, the USDA moved to roll back key school meal standards set during the Obama Administration, for instance halving the amount of whole-grain foods that schools are required to serve and eliminating a limit on sodium in school meals. On April 3, six states and Washington, DC sued US Agriculture Secretary Sonny Perdue, as well as the department and its Food and Nutrition Service, in opposition to the rollback, calling it "arbitrary and capricious" and alleging it was done with insufficient opportunity for the public to comment. About 30 million children depend on school breakfasts and lunches every weekday. The plaintiffs say that the changes are not based on "tested nutritional research," federal dietary guidelines or a 2009 study by the Food and Nutrition Board, as federal law requires, nor has the public been given the opportunity to comment on them. The new USDA rule is set to take effect July 1.
- Organic industry seeks more regulation, doesn't find what it wants. On April 8, Politico reported that the organic industry has taken several steps to increase regulatory oversight of the industry. According to Laura Batcha, CEO of the Organic Trade Association, the industry is frustrated that the USDA has not acted on a proposed organic livestock standards rule that has been in the works for several years. The group has sued the USDA over its withdrawal of the rule, and the case has been allowed to advance in the courts. In addition, the organic group is hoping that the USDA will meet a congressional deadline for release of a rule to combat organic fraud. That deadline is 12 months from the signing of the 2018 farm bill.
- Head of Texas beer distributor group writes to oppose legislative change. An op-ed column by Larry Del Papa, president of the Wholesale Beer Distributors of Texas, in the Dallas Morning News on April 5 supports Texas’s current system of state alcohol regulation which requires beer sold for off-premises consumption to pass through in-state beer wholesalers. The state legislature is now considering a bill, backed by the state’s craft brewers, to permit Texans for the first time to be allowed to buy up to two cases of beer per person per day from local breweries. Texas is the only state in the country where customers cannot purchase beer from local breweries to consume off-premises. Del Papa’s column opposed that change, saying it would benefit only 10 large independent craft breweries in the state. “It is because of the three-tier system, state-based regulation and the model alcohol regulations in this country that the United States is the best country in the world for brewers, distributors, retailers and consumers,” Del Papa wrote. “Many, including me, would argue that Texas is the best state in terms of alcohol regulation.”