Federal Food Bills - Proposed Changes for the Food Industry

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During the first quarter of 2021, various federal bills were introduced which impact the food industry. This article provides a primer on some of these bills and their potential impact on the food industry.

The Food Allergy Safety, Treatment, Education and Research (FASTER) Act (S.578), introduced by Senator Tim Scott on March 3, 2021, later passed by both the Senate and House of Representatives, and signed into law by President Biden on April 26, 2021:

  • The FASTER Act requires companies to declare the presence of sesame on food packaging labels by January 1, 2023 and was introduced and passed to address the needs of the over 1.5 million Americans who are allergic to sesame. As a result of the FASTER Act, food products containing sesame will need to be labeled as such in “plain language.”
  • Within 18 months of the enactment of the FASTER Act, the Secretary of Health and Human Services is also required to submit a report to the Senate Committee on Health, Education, Labor, and Pensions, and the House Committee on Energy, which includes descriptions of federal activities involved with the collection of data regarding the prevalence of food allergies and severity of allergic reactions for specific foods or food ingredients. This requirement will allow for better treatment of the millions of Americans who suffer from life-threatening food allergies by requiring the Secretary of Health and Human Services to regularly review food allergy treatments and research.

The Kombucha Tax Act (H.R.2124), introduced by Representative Earl Blumenauer on March 23, 2021:

  • As the Internal Revenue Code of 1986 is presently written, fermented beverages containing 0.5% or more of alcohol by volume are classified as beer for tax purposes, making them subject to federal alcohol excise taxes. As a result of the production process of certain beverages, it is common for nonalcoholic beverages, such as kombucha, to contain trace amounts of alcohol at as much as 1% abv.
  • The Kombucha Act seeks to amend the Internal Revenue Code and eliminate such tax burdens by increasing the applicable abv limit for kombucha from 0.5% to 1.25%, which would allow Kombucha to contain up to 1.25% abv without being taxed or regulated as alcohol.

Healthy Food Access for All Americans Act (Senate Bill 203), introduced by Senator Mark Warner on February 3, 2021:

  • This bill focuses on increasing access to healthy food through tax incentives. Specifically, this bill allows tax credits and grants for activities that provide access to healthy food in food deserts, which are communities that have limited or no access to grocery stores and meet income requirements.
  • For entities that are certified by the Department of the Treasury as special access food providers using specified criteria, the bill allows tax credits for operating a new grocery store or renovating an existing grocery store in a food desert. The bill also authorizes grants for a portion of (1) the construction costs of building a permanent food bank in a food desert and (2) the annual operating costs of temporary access merchants (mobile markets, farmers markets and food banks).
  • The Treasury, in coordination with the Department of Agriculture (USDA), must annually allocate the tax credits and grants to special access food providers. Grants authorized by this bill are not considered gross income for tax purposes.

Genetically Engineered Salmon Labeling Act (H.R.270), introduced by Representative Don Young on January 11, 2021:

  • This bill requires the market name of genetically engineered (commonly called genetically modified or GMO) salmon to include Genetically Engineered or GE in front of the existing market name.
  • The bill also requires the Department of Health and Human Services to ensure that an independent scientific organization reviews the Food and Drug Administration's environmental assessment that supports the approval of a new drug related to AquAdvantage Salmon, a type of genetically engineered salmon.

Amendment to the Federal Food, Drug and Cosmetic Act (H.R.271), introduced by Representative Don Young on January 11, 2021:

  • This bill prohibits the sale of food that contains genetically engineered fish unless the food bears a label stating that it contains genetically engineered fish.

Patient Access to Medical Foods Act (H.R.56), introduced by Representative Andy Biggs on January 4, 2021:

  • This bill provides for coverage of medical foods under Medicare, Medicaid, the Children's Health Insurance Program and TRICARE, and requires private health insurance providers to cover medical foods.
  • Generally, a medical food is a food prescribed by a physician for the dietary management of a disease or condition. The bill expands this definition to include a food prescribed as a therapeutic option when a physician determines that traditional therapies are inappropriate for the patient. This definition shall apply to the insurance programs described above and to a federal grant program to encourage the development of drugs and medical foods for rare diseases.

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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