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.

  • FDA issues guidance on use of term “gluten-free” by small businesses. The FDA has issued a guidance document for small businesses that wish to make a “gluten-free” claim for a product. Under the guidance, firms are not required to label their foods “gluten-free,” but if firms whose foods are regulated by FDA voluntarily choose to make this labeling claim, then the products must conform to the FDA’s definition of a “gluten-free” food. The rule aims to provide consumers, particularly those with celiac disease, a clear definition of the term “gluten-free.”
  • USDA rejects accusations that it “buried” news about salmonella outbreak. The USDA’s Food Safety and Inspection Service has denied accusations by Representatives Louise Slaughter (D-NY) and Rosa DeLauro (D-CT) that it intentionally released news about a salmonella-related recall of chicken products at Foster Farms just before the July 4 holiday weekend in order to “bury” the news so that consumers would be less aware of it. The agency said it announced the recall as soon as it was able to trace the contamination to a particular location.
  • Class certification is denied in baby food mislabeling case. On June 23, a California federal judge declined to certify a class action lawsuit accusing Gerber Products Co. of mislabeling its baby food. The court found that it would be difficult, if not impossible, for consumers to know whether they qualified to join the class because customers’ memories of the specific Gerber products they purchased would not be adequate for that purpose. The complaint alleges Gerber violated federal law that prohibits labels on food products for children under age two from including health claims, nutrition information, or low sugar information.
  • Vermont attorney general prepares to defend GMO case. The Vermont attorney general’s office has hired a Washington, DC, law firm to help defend it against a lawsuit filed in June by the Grocery Manufacturers Association challenging the state’s new law on the labeling of foods containing genetically modified organisms. The office is asking the state legislature to appropriate nearly $1.5 million for legal fees at the trial stage alone.
  • The US expands its organic market. The US and South Korea have now reached a deal allowing manufacturers of organic processed food to sell their products in either country without seeking additional certifications, ending a six-month Korean market closure to US producers. Since the agreement, attention is now turning to other countries, including Switzerland, Mexico, and Costa Rica for the next markets for US organic products. According to the USDA, discussions with these countries are already under way, opening more doors for American organic producers.
  • DA issues final recommendations on use of nanotechnology in regulated products, including foods. The FDA has issued final recommendations on the use of nanotechnology in products regulated by the government, such as medical therapies, food and cosmetics. The agency essentially wants companies to consult with it before launching nanotechnology products. The FDA did not make a judgment on the safety of nanotechnology products and left the decision on whether to put them on the market up to manufacturers.
  • Members of Congress introduce bill to give the USDA clearer authority to keep pathogens out of the food supply. On June 25, Representatives Louise Slaughter (D-NY) and Rosa DeLauro (D-CT) introduced a bill that would require the USDA to recall any meat, poultry or egg product contaminated with pathogens that can cause serious illness or death or that are resistant to two or more major antibiotics. At present, such a recall is permitted only if the product is considered “adulterated,” a term the representatives believe is ambiguously defined in current law.
  • New York State’s highest court rejects New York City’s soda-sales limitations. In a 4-2 ruling on June 26 that marked a victory for the soft-drink industry, the highest state court in New York refused to reinstate the city Board of Health’s limits on sales of jumbo-size sugary drinks. The proposal, championed by former Mayor Michael Bloomberg, had been applauded by many health advocates. The court ruled that the Board of Health lacked authority to issue the rule and that it should instead have been addressed by the City Council.
  • CSPI calls on the FDA to take action concerning energy drinks. The Center for Science in the Public Interest, citing several cases in which young people died or became ill after consuming energy drinks, asked the FDA to take certain steps on this issue. They include issuing a public health warning to discourage people, especially those under 18, from consuming energy drinks and suggesting to states and localities that they bar the sale of energy drinks to people under 18. The CSPI’s June 25 letter conceded that energy drinks have not been found to be toxic, but it said their safety is not assured.
  • “Interim” report issued on USDA’s Country-of-Origin Labeling (COOL) rules. A World Trade Organization (WTO) panel has released a confidential “interim” decision in the case that Canada and Mexico brought against the US COOL rules. These labels inform US consumers where their meat originates. The interim decision finds that the labels constitute an unfair trade practice and could result in punitive tariffs on a number of American farm goods and products exported to the two countries. In May 2013, the USDA issued a final version of its new COOL rules to comply with WTO’s earlier finding that the rules unfairly discriminated against livestock raised in Canada and Mexico. The USDA is reviewing the interim report and has one last opportunity to comment before it is finalized and made public.

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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