Food and Beverage News and Trends - December 2017

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.

  • FDA terminates its food advisory committee. The FDA announced December 12 that it will discontinue its Food Advisory Committee, effective immediately. The agency said the committee, established in 1992, had held only a handful of meetings over the past several years and had not met at all since 2015 – and therefore that the effort and expense of maintaining the committee was no longer justified. The committee included scientific experts and consumer advocates and advised the agency on food safety, food science, nutrition and other food-related health issues. Lisa Lefferts, senior scientist at the nonprofit Center for Science in the Public Interest, wrote in a statement that the FDA's decision "is further evidence of the low value this administration places on independent scientific advice."
  • USDA unveils interim final rule for school lunch nutrition. Under a new interim final rule published November 29 by the USDA, school cafeterias across the nation will be free to serve low-fat (1 percent) milk, and, in instances of hardship, will not need to serve whole-grain foods. US Agriculture Secretary Sonny Perdue said these modifications of Obama-era federal school lunch rules are desirable because "schools need flexibility in menu planning so they can serve nutritious and appealing meals." The new rule also gives schools until 2021 to develop menus with lower sodium content. Margo Wootan, vice president for nutrition of the nonprofit Center for Science in the Public Interest, said, "The USDA should be doubling down on helping schools reduce sodium, not slowing down progress, as the Trump administration proposed today."
  • State legislator proposes getting rid of Philadelphia's soda tax. On December 6, Pennsylvania state representative Mark Mustio announced his intention to introduce a bill that would effectively repeal Philadelphia's soda tax, which took effect almost a year ago. Mustio, a Republican state senator from Allegheny county, near Pittsburgh, said that some grocery stores in Philadelphia have reported as much as a 20 percent decline in total revenues since the inception of the tax. "To avoid the tax, supermarket customers are purchasing their food and beverages right over city borders," he said. Revenues from the tax go to pre-K educational programs, government employee benefits and city parks and recreation centers.
  • Will this be the next county to impose a soda tax? Councilmembers in affluent Montgomery County, Maryland are discussing the possibility of imposing a tax on sugary beverages. The proceeds of any such tax would go toward funding after-school and early-childhood programming. While some councilmembers find the idea promising, others say they will not move forward without broad community support. "This is not something you're going to do over people's dead bodies," said Councilmember Marc Elrich. "There needs to be a really full discussion as to what the benefits are and the intentions. If it's not tied to early-childhood education, it's not interesting to me." He added that the soda industry, which has fought such tax proposals around the country, is "in denial that sugar causes problems."
  • Non-glyphosate certifications emerge in private sector. Two new privately developed non-glyphosate certifications for foods are now available, each of which declare a food to be free of any residue of glyphosate, the controversial herbicide. Food Dive magazine reports that the companies issuing the certifications are BioChecked, based in Florida, and the Detox Project, which uses testing facilities at the University of California in San Francisco. Companies pay a fee for the private certifications. The head of the Detox Project said, "We started the certification program because people are worried about toxic chemicals in their food. We know by testing products that having an organic label isn't doing that job, and neither is being Non-GMO Project certified." See our latest coverage of developments around glyphosate as well as our alert, Six things to know about glyphosate.
  • Supplement company agrees to fine for false marketing campaign. A dietary supplement company that in 2014 received a warning letter from the FDA agreed on November 30 to pay a $3.7 million fine to settle a case brought by the Federal Trade Commission and the State of Maine for making claims that its supplements could cure a variety of ailments – Parkinson's disease, Alzheimer's disease and arthritis. Health Research Laboratories LLC and its owner, Kramer Duhon, also agreed to an injunction against making false claims in the marketing of their supplements, BioTherapex and NeuroPlus. The FDA agreed to suspend payment of most of the fine, permitting payment of only $800,000, pending its determination that Duhon's financial disclosures are truthful.
  • Nonprofit criticizes some practices of the granola and snack bar industry. Raising the Bar, a report from the Cornucopia Institute, a nonprofit research group, calls many snack, granola and energy bars species of junk food. The report said a loophole in USDA regulations allows conventional ingredients extracted with the use of the neurotoxic chemical hexane, such as soy protein isolate, to be used in products labeled as "made with organic ingredients." Many snack and granola bars are made only with non-GMO ingredients and without artificial colors or flavors, but many others are not manufactured to these standards. Cornucopia said its report "will help consumers patronize companies that are fully committed to supporting the environmental and health benefits of organic food and farming. It is possible to distinguish between truly healthy snack bars and those that should be considered desserts or even junk food." Released alongside the report was a mobile-friendly web-based scorecard to help consumers see the report's rankings.
  • Hep A in the news. Confirmed cases of Hepatitis A continue to rise in a multistate outbreak being closely watched by the CDC. The outbreak is worrisome because Hep A is easily transmitted by food, beverages and contaminated surfaces and objects. The hardest hit in this outbreak are homeless people and drug users, but as much as a third of the infected are neither.

In Michigan, employees at four Detroit-area restaurants and a casino, plus a worker at a popular donut restaurant in Monroe, were discovered to be working while infected with the highly contagious virus. The State of Michigan is now urging all food service workers to get the Hep A vaccine; the state health department is holding a series of free clinics to vaccinate workers who lack private insurance. The department says its vaccination efforts are also reaching "targeted locations such as homeless shelters, soup kitchens, and rehabilitation facilities. Partnerships are also being developed with area Emergency Departments, county jails and state prisons." In this outbreak, 583 Hep A cases have been reported in Michigan, and 20 of those patients have died.

In San Diego, pointing to the surging Michigan outbreak, county officials have unanimously voted to extend the state of emergency they imposed on September 1. On December 1, the county opened the first of three industrial-sized tents intended to house hundreds of homeless. The local Hep A outbreak, the San Diego Union-Tribune reports, pushed officials to move ahead swiftly with a bold plan to transition homeless individuals and families to the tents and, ultimately, into permanent homes. At this writing, San Diego County has reported 567 confirmed Hep A cases, with 20 deaths. Meanwhile, on December 4, the City of Los Angeles opened the Skid Row Community ReFresh Spot – the first public toilets to open in the city in more than a decade. The personal care center addresses the lack of hygiene facilities that has enabled the virus to spread, providing a secure environment with showers and toilet facilities as well as Hep A counseling.

The same strain of the virus is also surging in Utah, Colorado, Nevada, Arizona and Kentucky. In the latter state, before the start of the 2018-2019 school year, all students will be required to have Hep A vaccinations. Utah, with the nation's third-highest number of cases in this outbreak, is carrying out a targeted vaccination program.

And in regulatory news, on December 13 the USDA expanded an import alert requiring tuna from a seafood company, Sustainable Seafood Co. Ltd. of Cam Lam, Vietnam, to be seized at the border due to Hep A contamination found during routine testing. Already covered under the import alert, also for Hep A contamination, is fresh and frozen tuna from Indonesia's P.T. Deho Canning Co.

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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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