Food and Beverage News and Trends

by DLA Piper

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

  • Federal judge declines to dismiss olive oil consumer class actions. A US district judge has declined to dismiss two class actions filed in California federal court against several companies that import mass-market olive oil into the US from Italy. On January 6, US District Judge Richard G. Seeborg ruled that, at this stage, the allegations by the consumers in the class actions were sufficient to allow the claims to go forward. The plaintiffs allege that oil labeled “extra-virgin” actually contained refined oil. The plaintiffs also accuse the companies of misleading consumers into thinking the olives originated in Italy, while only disclosing the actual origin of the oil less prominently on the back label.
  • Six senators urge a ban on the sale of pure powdered caffeine. Six US senators, led by Sherrod Brown (D-OH) and Richard Blumenthal (D-CT) are urging the FDA to ban the sale and marketing of pure caffeine. The senators said in a January 26 statement that although this product is now available on store shelves and online, it is dangerous and is markedly different from energy drinks or caffeine-containing pills. Blumenthal termed pure caffeine “a powerful stimulant capable of producing serious physical reactions that can lead to death” and said the product “has no redeeming value.” The FDA has alerted consumers on its website to the dangers of consuming pure caffeine, but it has not taken any steps to warn them at the point of sale or to ban the substance.
  • Red Bull files trademark opposition against Old Ox brewery. On January 28, the Austrian company that owns Red Bull energy drink filed a petition with the US Patent and Trademark Office opposing the registration of the term “Old Ox” as a trademark by the Old Ox Brewery, a Virginia-based brewery. The Red Bull company wants Old Ox to change its name, asserting the possibility of confusion between the two companies' products. “An ‘ox’ and a ‘bull’ both fall within the same class of ‘bovine’ animals and are virtually indistinguishable to most consumers. In addition, an ox is a castrated bull,” Red Bull wrote in its PTO filing. Old Ox has not yet formally responded to the complaint but has asserted in public statements and on social media that Red Bull “has asked the U.S. Government to restrict our rights.” Referring to Red Bull as a “Red Bully,” the brewery has pointed out it has no plans to make an energy drink and that Red Bull does not brew beer.
  • CDC researchers point to high levels of sodium and sugar in some infant and toddler foods. In a study published in Pediatrics magazine online on February 2, researchers from the Centers for Disease Prevention in Atlanta concluded that many commonly purchased infant and toddler foods in the United States have levels of sodium or sugar that are of potential health concern. They recommended to pediatricians that they advise parents to look carefully at labels when selecting commercial toddler foods and to limit salty snacks, sweet desserts and juice drinks.
  • Obama proposes a unified food safety agency. President Barack Obama, in his 2016 budget proposal announced February 3, urged the establishment of a single food safety agency to incorporate and consolidate the existing roles of the USDA, the FDA, and other agencies in ensuring the safety of foods. Senator Richard Durbin (D-IL) and Representative Rosa DeLauro (D-CT) have previously made similar proposals. At least 15 federal agencies currently oversee some aspect of food safety.
  • FDA requests new money to implement Food Safety Modernization Act. The FDA is requesting a budget of $4.9 billion as part of the President’s fiscal 2016 budget, announced February 3. This represents a 9 percent increase over the enacted FDA budget for FY 2015. Notably, one of the key items in the agency’s proposed budget is $109.5 million to implement the Food Safety Modernization Act, signed into law by President Obama in 2011. This law requires sweeping changes to the nation’s food safety program to help prevent foodborne illness and, the agency anticipates, will result in a substantial strengthening of the agency’s food inspection capabilities as the new regulations are finalized. The FDA believes its 2016 budget request will allow it to take major steps towards implementing the law, including acquiring technical staff and inspectors to support the law; providing guidance to industry about the changes the law will bring; strengthening the role of the states; and building a new import safety system.
  • Action on the Hill concerning GMO labeling continues in current Congress. On February 12, Democrats in both houses of Congress introduced bills to require labeling of foods that contain genetically modified ingredients. Similar bills failed in the last Congress, and these bills are also considered unlikely to pass. However, a less onerous proposal allowing for voluntary labeling of foods containing genetically modified agreements may have a chance to pass now that the Republicans controls both houses of Congress. If a voluntary labeling regime is enacted at the federal level, it would likely preempt all efforts by states to impose mandatory labeling. Vermont has enacted a mandatory GMO labeling requirement, but that measure is currently in the midst of a legal challenge before it is scheduled to go into effect next year.
  • Key advisory panel drops warning against consuming too much cholesterol. After nearly 40 years, the nation’s top nutrition advisory panel, the federal Dietary Guidelines Advisory Committee, is poised to drop the recommendation that people avoid consuming too much cholesterol. This change reflects a shift in the thinking of dietary experts, who are now more concerned about products with high levels of saturated fats, such as fatty meats, whole milk and butter. The Committee, however, has not changed its conclusion that high levels of “bad” cholesterol in the blood are linked to heart disease.
  • Senator proposes bill to strengthen food recall authority. A US senator is proposing legislation that would require stores to improve customer notification during a recall and would also provide mandatory recall authority for meat, poultry and some egg products under USDA jurisdiction. Senator Kirsten Gillibrand (D-NY) plans to introduce the Meat and Poultry Recall Notification Act, which would require recalls of meat and poultry contaminated with pathogens. At present, a mandatory recall can occur only if a food is found to be contaminated with an “adulterant,” but not all harmful bacteria and other pathogens are legally considered “adulterants.” Under the proposed legislation, stores would have to display a USDA-issued Recall Summary Notice at cash registers or on the shelf where the food was sold.
  • Muscle Milk manufacturer is hit with a consumer lawsuit. Three consumers have filed a lawsuit in the US District Court for the Southern District of California against Cytosport, the manufacturer of Muscle Milk, which is advertised as building strength in athletes. The consumers allege that the product’s labels falsely lead consumers to believe that it contains significant amounts of muscle-building ingredients, including L-Glutamine. They also assert that since Muscle Milk products are fortified with high-fat ingredients, such as sunflower and canola oils, it is misleading to label some of Muscle Milk products “lean.” The FDA has previously sent warning letters regarding Muscle Milk because the product does not contain milk. Cytosport was purchased by Hormel Foods last July.

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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