Food and Beverage News and Trends - March 2016 #2

by DLA Piper
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This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.

  • US Senate rejects bill that would create national standard for GMO food labeling. On March 16, Senator Pat Roberts (R-KS) failed to obtain the 60 votes required to advance his bill that would create a voluntary national labeling standard for genetically modified organisms (GMOs) and that would preempt state laws. The US Senate voted 49-48 to invoke cloture, a tally that fell far short of the 60 votes needed. This effectively ends the chances of passage for the Roberts bill, which would have created a voluntary labeling program under the aegis of the USDA. Roberts’ proposed legislation was a response to the 2014 Vermont law requiring labels on products containing GMOs. Members of Congress and food companies have made several attempts to block the Vermont law before it takes effect July 1. See some of our earlier coverage of this issue here.
  • fdaSix candy companies agree not to advertise to kids under 12. The Council of Better Business Bureaus (CBBB) announced on March 16 that six small-to-medium-sized candy companies, whose brands include Brach’s, Lemonhead, Ghirardelli, Jelly Belly, Peeps, Mike and Ike, and Welch’s Fruit Snacks, have signed on as charter members of the Children’s Confection Advertising Initiative, agreeing not to advertise to children under age 12. Six major candy companies, among them Hershey’s, Mars and Nestle, have made the same pledge under a program called the Children’s Food and Beverage Advertising Initiative. “Better Business Bureau has always felt that smaller companies can be just as much a part of the self-regulatory success story as major corporations,” said Mary E. Power, president and CEO of CBBB. “This latest initiative is yet another example of how responsible companies can join together to efficiently regulate themselves.”
  • CSPI asks FDA to require warning labels for food dyes. In a March 15 letter to FDA Commissioner Robert Califf and FDA Center for Food Safety and Applied Nutrition Director Susan Mayne, the Center for Science in the Public Interest urged the FDA to require label warnings on all foods that contain Red 40, Yellow 5, or other food dyes that it says can adversely affect children’s behavior. The watchdog group submitted more than 2,000 complaints it has collected from parents who believe that their children suffered adverse effects from the chemicals. The CSPI said that, ideally, dyes should not be in the food supply at all. “As long as dyes are permitted, only a warning label will provide consumers with the appropriate information to enable them to make the association between foods containing these dyes and their children’s behavioral symptoms,” the group wrote.
  • FDA issues guidance on reduction of acrylamide levels in food. On March 10, FDA issued a final guidance on how food manufacturers, processors, growers and operators can reduce levels of acrylamide – a chemical that is believed to be a human carcinogen – in food. The FDA did not prohibit any specific food preparation methods but described ways to reduce the amount of acrylamide in prepared food. Acrylamide develops when starchy foods like grains and potatoes are cooked to high temperatures, usually via baking, frying or roasting. Most acrylamide research has centered around food products such as French fries and potato chips, but the FDA’s guidance notes concerns about breakfast cereals, cookies, crackers and toasted bread. The coffee roasting process also creates acrylamide, but the amount of the chemical plummets during brewing. The Center for Science in the Public Interest said FDA should have set maximum standards for acrylamide, but it applauded the agency’s action as “a welcome step.”
  • Pistachios recalled due to possible Salmonella contamination. On March 10, state and federal health agencies announced a nationwide voluntary recall of certain lots of pistachios sold under the brand names of Wonderful, Paramount Farms and Trader Joe’s because they may be contaminated with Salmonella. Health officials in nine states are looking into 11 cases of Salmonella linked to pistachios from Wonderful Pistachios of Lost Hills, California. The nuts have been sold nationwide and in Canada. Two people have been hospitalized, but no deaths have been noted in this outbreak to date. This is 2016’s fourth recall of pistachios due to Salmonella concerns.
  • FDA defers enforcement of restaurant menu labeling regulation. On March 9, the Food and Drug Administration announced it will defer the enforcement of its long-delayed restaurant menu labeling regulation, which had been slated to become effective on December 1, 2016, to comply with a legislative rider in a spending bill. The rule will now take effect one full year after the agency issues final guidance on the regulation. Susan Mayne, director of the FDA’s Center for Food Safety and Applied Nutrition, said the agency “will work flexibly and cooperatively with establishments covered by the menu labeling final rule to facilitate compliance and will provide educational and technical assistance for covered establishments and for our state, local, and tribal regulatory partners.” The rule, which requires subject restaurants, delis and convenience stores that sell prepared food to publish calorie counts on their menus, has the backing of the restaurant industry, which prefers a federal menu labeling standard as opposed to individual laws in states and localities across the country. See our alert on the regulation here.
  • Attorney General Lynch emphasizes government’s work against unsafe dietary supplements. On March 8, US Attorney General Loretta Lynch, in a video recorded as part of National Consumer Protection Week, discussed the US Department of Justice’s ongoing work against unsafe dietary supplements. Lynch said, “Some of these supplements are simply a waste of money, promising results they can’t deliver or advertising ingredients that they don’t contain. And too often, these supplements don’t just abuse consumer trust – they also endanger public health.” Lynch added, “Above all, if you are considering taking a dietary supplement, talk to a doctor first. Should you and your healthcare provider decide that dietary supplements are right for you, know that the Department of Justice is working tirelessly to ensure that the products you choose are safely manufactured, accurately labeled, and honestly marketed – because the American people deserve nothing less.” See some of our earlier coverage of dietary supplement issues here and here.
  • Top expert on food safety announces he is leaving the FDA. Michael Taylor, the FDA’s Deputy Commissioner for Foods and Veterinary Medicine, is leaving the agency. The FDA announced Taylor’s departure on March 8. He was the agency’s liaison for the produce industry, appearing on conference panels, webinars and meetings about rules implementing the Food Safety Modernization Act. Stephen Ostroff has been named to replace Taylor, who was considered to be perhaps the leading federal government authority on food safety regulation. Taylor is credited with helping implement the FSMA, which government health officials call the most sweeping US food safety reform in more than 70 years. See our alert on the latest developments emerging from the FSMA here.
  • FDA seeks comment on health issues involved with use of manure as fertilizer. The FDA announced on March 7 that it is looking into the question of whether the use of animal manure as agricultural fertilizer can be dangerous to human health. “The FDA is planning to conduct a risk assessment to determine how much consumer health is put at risk by the use of raw manure as fertilizer in growing crops covered by the final Produce Safety rule, and what can be done to help prevent people from getting sick,” the agency wrote. It sought opinion and comment from the agriculture and produce industries, academics and the public on the issue. “Raw manure has the potential to contain foodborne pathogens (microorganisms that cause human disease). Pathogens that live in the intestines of animals can be transmitted from their manure to produce in a number of ways and from there to people under certain conditions,” the agency wrote.
  • Subway “foot-long” class action is settled in federal court. Plaintiffs lawyers received 99 percent of the money paid out by the company that owns the Subway restaurant chain in the settlement of a lawsuit that had claimed the company’s “foot-long” sandwiches were too short. US District Judge Lynn Adelman of the Eastern District of Wisconsin, where the cases were consolidated, wrote in a decision and order on February 25 that “by the time the initial mediation session was over, the plaintiffs realized that their claims were quite weak.” The judge oversaw a settlement for a total of $525,000, of which plaintiffs’ attorneys were to receive $520,000 and each of 10 plaintiffs would get $500.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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