FDA COVID-19 updates for the food and beverage industry

As the coronavirus disease 2019 (COVID-19) pandemic continues to impact and influence the food and beverage industry, DLA Piper will issue regular updates related to key regulatory actions from relevant regulatory bodies, including the US Food and Drug Administration (FDA), US Department of Agriculture, and relevant state and local authorities as applicable. The below content is intended to build on our prior alert, which can be found here, to keep our clients and industry members aware of ongoing commentary and guidance from US regulators.

FDA position: COVID-19 food safety and food supply guidance
Consistent with prior guidance and commentary, on April 4, 2020 the FDA issued updated public statements and a series of updated Q&As designed to serve as a resource for industry members and consumers regarding food safety during the COVID-19 pandemic. In these materials, the FDA continues to take the position that COVID-19 poses no significant risk to the food supply, stating that the supply chain has not been disrupted and that there are no nationwide food shortages.

Further, the FDA continues to reiterate that there is no risk of COVID-19 transmission through foodborne exposure. As such, the FDA stated that it does not anticipate recalls or withdrawals of food products from the market relating to COVID-19, even where individuals working in a food facility are confirmed to have tested positive for the virus. The agency continues to encourage food facilities to comply with state and local health and safety protocols and to coordinate with local health officials to determine appropriate operational responses.

COVID-19 menu labeling flexibility
On April 1, 2020, the FDA released a “Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency,” available here. The temporary labeling policy applies to restaurants and similar retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items.

This policy was adopted in recognition that restaurants are shifting their approach to takeout and also shifting menu offerings to address impacts on operations, and as such are also creating new or modified online ordering portals and printed menus. In other cases, supply chain disruptions are forcing restaurants to adjust menu offerings based on their food supply options. Under the policy, the FDA will decline to enforce the standard menu labeling requirements applicable to these establishments for the duration of the COVID-19 pandemic.

COVID-19 retail shell egg labeling
In recognition of the increased consumer demand for shell eggs during the COVID-19 pandemic, on April 3, 2020, the FDA issued temporary guidance regarding shell egg labeling, available here. The guidance provides that for the duration of the COVID-19 pandemic, the FDA will decline to enforce standard labeling requirements for shell eggs sold by retail food establishments, in cartons or flats, provided the following guidelines are met:

• The retail food establishment displays clearly at the point of purchase (for example, on a counter card, sign, tag affixed to the product, or some other appropriate device) the following information:
  • Statement of identity,
  • The name and place of business of the manufacturer, packer, or distributor, and
  • Safe handling instructions for shell eggs that have not been processed to destroy all viable Salmonella Enteritidis (SE).
• If shell eggs from multiple suppliers are offered for sale at the same time and in the same location, it is clear to consumers which point of sale labeling applies to which of the shell eggs that are offered for sale.
• The shell eggs are sold by the complete carton or flat (for example, 30 eggs are sold in a flat designed to hold 30 eggs).
• There are no nutrition claims at the point of purchase for the shell eggs.

FDA guidance for egg producers
In recognition of the increased consumer demand for shell eggs in the table egg market and concerns regarding the reduced demand for eggs processed into egg products to be used by restaurants and similar establishments, the FDA has released guidance for egg producers, available here, which relaxes enforcement of the “Egg Safety Rule” to allow producers who currently only sell eggs to facilities for further processing (eg, into “egg products”) to sell to the table egg market, provided certain circumstances are present.

This guidance applies for the duration of the COVID-19 pandemic and states that the FDA does not intend to object if shell eggs from poultry houses consisting solely of laying hens up to 45 weeks of age are sold to the table egg market, provided that:

For poultry houses providing eggs to the table egg market

• A producer complies, and has been in compliance with, all requirements of the Egg Safety Rule for the poultry house for the life of the flock, including SE monitored pullets, biosecurity, rodent and pest control, cleaning and disinfection, environmental and egg testing, refrigeration, and recordkeeping.
• Before sending any eggs to the table egg market, a producer simultaneously conducts environmental and egg testing (as described in 21 CFR 118.7 and 118.8) for the poultry house. Note that environmental testing would still occur when the laying hens are 40-45 weeks of age and subsequently if molting is induced.
• No environmental tests or egg tests are positive for SE in the poultry house.
• A producer processes eggs from the poultry house separately from eggs on the farm that are not going to the table egg market.
• A producer implements and maintains a written plan (e.g., use of dedicated equipment, change of personnel protective equipment between houses) to prevent cross-contamination between poultry houses whose eggs are going to the table egg market and any other poultry houses on the farm.

For poultry houses not providing eggs to the table egg market

• Before sending any eggs to the table egg market, a producer complies with all requirements of the Egg Safety Rule for poultry houses that are not sending eggs to the table egg market (e.g., biosecurity, rodent and pest control, cleaning and disinfection, refrigeration, and recordkeeping), except for testing and SE monitored pullets.

The FDA guidance does not apply to poultry houses with laying hens over 45 weeks of age at the time the guidance was issued, nor to egg producers whose poultry houses have laying hens over 45 weeks that have been sending the eggs for further processing.

West Virginia relaxes liquor delivery rules during pandemic
On April 3, 2020, the state of West Virginia decided to permit limited home delivery within the state of sealed beer and wine packages by certain licensees to a person's home for personal use during the coronavirus disease 2019 (COVID-19) pandemic. Restaurants and bars licensed as private clubs, private wine restaurants, taverns, and brewpubs may deliver beer or wine in the sealed original container when the owner of the license is delivering take-away food orders. The same will be true of brewers and wineries. However, delivery services like UberEats will not be allowed to make this type of delivery, nor will the delivery of mixed drinks or of cups of beverage be permitted. West Virginia is one of several states to relax its liquor laws during the current state of emergency.

USDA extends deadline for comments on changes to school lunch program
Responding to the (COVID-19 pandemic, the US Department of Agriculture (USDA) announced on March 17, 2020, that the comment period for its proposed changes to the rules for food served at schools will be extended for 30 days until April 22, 2020. The department wrote that the extension of time “will allow schools, state agencies, stakeholders and others who are working tirelessly to ensure children have food to eat while schools are closed the opportunity to provide valuable feedback.” The department also said that it encourages stakeholders to submit comments online via regulations.gov.

Beer and cider industries benefit from CARES Act federal stimulus package
As part of the $2.2 trillion stimulus package passed March 25, 2020, for economic relief in the COVID-19 pandemic, congress provided what appears to be significant economic relief to small craft breweries and cider makers. The legislation requires the Small Business Administration (SBA) to pay the interest, principal and any associated fees that are owed on covered loans to qualifying companies for a six-month period. It also permits the forgiveness of a large portion of the principal, and any associated interest, on SBA loans to companies with fewer than 500 employees, a category that include many beer and cider makers, if they keep up their payroll during the pandemic. These provisions would, in the view of leaders of these industries, help keep them afloat and avoid layoffs. See our alert on these measures as well as the materials from our webinar.

FDA allows extension of time to comment on ultrafiltered milk
The US Food and Drug Administration (FDA) announced on March 30, 2020, that it is allowing an extension of 120 days for the comment period on a proposal concerning the use and labeling of ultrafiltered milk in certain cheese and cheese-related products. The dairy industry itself is debating the use of this type of milk in this manner. The rule was first proposed in 2005; in 2017, the FDA decided to exercise enforcement discretion on the issue. The current comment period was originally set to end March 30, 2020, but now has been extended by 120 days. Ultrafiltration is a process of passing milk under pressure through a thin, porous membrane to separate the components of milk according to their size. It allows the smaller lactose, water, mineral, and vitamin molecules to pass through the membrane, while the larger protein and fat molecules, key components for making cheese, are retained and concentrated. The process tends to make cheese manufacturing more efficient.

If you have any questions regarding these new requirements and their implications, please contact any member of DLA Piper’s Consumer Goods, Food and Retail group or your DLA Piper relationship attorney.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.