Food and Beverage Alert (US)

by DLA Piper

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

  • Supporting healthy food options for students. On April 3, Senators Heidi Heitkamp (D-ND) and Susan Collins (R-ME) introduced the School Food Modernization Act (S. 2210). The bill would authorize grants and loans to modernize school kitchens, enabling schools to more aptly prepare wholesome meals school kids. Through competitive grants from the USDA, the bill would also strengthen training and provide technical assistance to food service personnel to ensure they are able to meet healthier meal and food preparation standards.
  • Menu labeling rules enter final review stage. The FDA has now sent final restaurant menu and vending machine labeling regulations to the White House Office of Management and Budget for its 90-day review. As proposed, the final regulations are expected to require chain restaurants and vending machines – with at least 20 locations – to disclose calorie information and make additional nutrition information available to consumers upon request.
  • Federal GMO labeling legislation introduced. On April 9, Representative Mike Pompeo (R-KS) introduced The Safe and Accurate Food Labeling Act of 2014 (H.R. 4432). Taking a step toward preempting numerous state labeling efforts, the bill would authorize the FDA to establish a federal labeling standard for food containing GMO ingredients in the event the food posed a safety risk. Given that the FDA has not found this to be the case, the bill has received strong support from the food, biotechnology and agriculture industries. The bill also authorizes FDA to define “natural” for purposes of ingredient labels, which the FDA has been reluctant to do in the past.
  • FDA aims to extend its reach. FDA Commissioner Margaret Hamburg is attempting to extend its regulatory jurisdiction outside of the US. Approximately half of the country’s fruit and produce (and more of its seafood) comes from other countries. However, as noted by Hamburg, international food producers often face less regulatory oversight and can be particularly susceptible to contamination. Leveraging the globalization of food markets, the FDA is partnering with its international counterparts to increase its international presence and to take a more global public health approach to keeping the food in the US safe.
  • Labeling sugar in CA. A soft drink labeling bill in California passed one of its first hurdles in the state Senate’s health committee. The measure would require “sugary soft drinks” to include warnings of obesity, diabetes and tooth decay on their labels. California banned sodas and junk food from vending machines in schools in 2005. This is state Senator Bill Monning’s second attempt to regulate beverage choices in California after introducing an unsuccessful bill to tax soda last year.
  • FDA drafts honey labeling guidance. On April 9, the FDA announced draft guidance on the proper labeling of honey and honey products. The draft guidance aims to address the labeling issues identified in a 2006 petition from the American Beekeeping Federation and honey industry groups, while also reinforcing existing laws and regulations for the industry. Among other issues, the draft guidance touches on how and when to declare the floral source of honey, and how to label products that contain added sweeteners or other ingredients. The FDA is accepting public comments on the guidance until June 9.
  • COOL case reaches DC Circuit (AMI v. USDA, No. 13-5281). The DC Circuit court has scheduled a rehearing en banc in the appeal by the American Meat Institute and others (AMI) challenging the USDA’s regulations requiring mandatory country of origin labeling (COOL) statements. The rehearing will address whether the same standard that applies when regulators require label statements in instances to correct a deception (e.g., false advertising), also applies when regulators require label statements for other purposes based on the interest of the government. The AMI argues that the government does not have sufficient reason to override the industry’s right of free speech and compel them to make statements against their will because the COOL regulation is not an anti-deception regulation. Oral arguments are scheduled for May 19.
  • Vermont takes one step closer to GMO labeling. On April 15, the Vermont state Senate passed a measure that would require the labeling of food containing GMO ingredients. Beginning July 1, 2016, the law would apply to any food sold in Vermont stores with certain exceptions, including feed and food-processing aids. Vermont’s law has no strings attached and would go into effect without the action of neighboring states. In anticipation of future lawsuits, the measure would establish a fund to help defend the law with state and private dollars.
  • CA federal judge dismisses cane juice labeling suit (Swearingen et al. v. Santa Cruz Natural, Inc., Case No. 13-cv-4291). On April 2, US District Judge Susan Illston dismissed a class action alleging that Santa Cruz Natural, Inc. hid the presence of sugar in sodas and juices by labeling them as containing evaporated cane juice (ESJ). Applying the primary jurisdiction doctrine, Judge Illston dismissed the case in light of forthcoming FDA guidance on whether companies can use the term to describe sweeteners derived from sugar cane syrup. Recently, the FDA announced that it was re-evaluating its 2009 draft guidance, which advised companies not to use the term ESJ as it can make products seem healthier than they actually are since ECJ is essentially sugar. As the agency revisits its draft guidance, it is seeking comments regarding whether the term ECJ sufficiently conveys the nature of the ingredient and how it compares to other types of sugar. The FDA is accepting public comments on the reopened draft guidance until May 5.

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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