Food and Beverage News and Trends - November 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 proposes revoking heart-health claim for soy protein. Citing "inconsistent findings" in research, the FDA announced October 30 that it is proposing to revoke its permission for companies to make a claim that soy protein reduces the risk of heart disease. This would be the first time ever that the FDA has revoked a health claim. The agency said this action would not imply that soy protein is not good for heart health or that it does not have other benefits, merely that the scientific evidence is not conclusive that soy protein reduces heart disease. FDA has clarified that food makers could still make a qualified health claim that explains the limited evidence linking consumption of soy protein with heart disease risk reduction.
  • FDA chief hints at case-by-case adjudication of "healthy" claims. In an interview published October 16, FDA Commissioner Scott Gottlieb told The Wall Street Journal that he believes the FDA should police manufacturers use of the term "healthy" for foods on a case-by-case basis. Gottlieb said, "I want to see the agency step in to adjudicate some of the important claims that product developers want to make on labeling that could be important in informing consumers." But, he added, "We're going to prioritize from a public-health standpoint which claims we think we should be providing more adjudication of." He said if manufacturers aren't allowed to make "healthy" claims, they may move on to make claims about portion size, taste and convenience, all of which provide useful information to consumers.
  • E. coli outbreak among Marine Corps recruits. On October 31, news media in California reported that more than 300 recruits have fallen ill in an outbreak of Shiga toxin-producing E. coli at the Marine Corps Recruit Depot in San Diego, and 9 remain hospitalized off base with hemolytic uremic syndrome, which can cause kidney damage. The Marine Corps said that while investigators continue searching for the contagion's source, sick recruits have been quarantined and sanitary measures have been increased in all training areas. The outbreak was first observed on October 25, but the number of cases abruptly spiked on October 30 and new cases were reported as recently as November 3. Brigadier General William Jurney, commander of the depot and the Corps' Western Recruiting Region, stated, "We are working to identify the cause of the sickness, making sure our affected recruits can return to training as soon as possible and continuing training for recruits not influenced."
  • Massachusetts considers ban on minors' purchase of certain dietary supplements. In October, the Council for Responsible Nutrition, the trade group for dietary supplement makers, testified against a Massachusetts state legislative bill that would prevent minors from purchasing dietary supplements for weight loss or muscle building. Ingrid Lebert, the CRN's senior director of government affairs, said that although such products can be misused, the bill would ban many purchases of products that are safe and regulated, denying consumers their choice. She noted that there are already mechanisms under which the FDA can get specific products off the market if they are dangerous to human health.
  • Glyphosate levels in humans show increase in recent study. Levels of glyphosate, a controversial chemical found in herbicides, markedly increased in the bodies of a sample population over two decades, a study published October 24 in the Journal of the American Medical Association concluded. The increase began around the same time as the introduction of genetically modified glyphosate-tolerant crops in the United States in 1994. Glyphosate is the active ingredient in Monsanto's popular herbicide Roundup. The level identified in the study (0.44 micrograms per liter in the 2014-2016 period) remained well below the amount specified by the Environmental Protection Agency as harmful to humans. The EPA has consistently found that glyphosate is not hazardous to human beings, though California declared it a carcinogen in July 2017, and the European Parliament recently passed a nonbinding resolution calling for it to be banned by 2022. For more information about glyphosate, see our alert, Six Things to Know about Glyphosate.
  • Federal report shows low incidence of drug-resistance pathogens. An annual US government report released October 23 shows that, in general, resistance to antibiotics in samples of Salmonella, Campylobacter and other pathogens remains low. This is good news for the meat and poultry industries and for federal regulators who are concerned about the possible skyrocketing of dangerous drug-resistant bacteria. The data used for the report was from 2015, the most recent year for which full data is available. "While overall resistance remains low for most human infections and there have been measurable improvements in resistance levels in some important areas, NARMS [the National Antimicrobial Resistance Monitoring System] is closely monitoring a few areas of concern," the report stated.
  • When is cold-pressing not cold-pressing? Forager Project, LLC, a juice manufacturer, was sued in US District Court for the Eastern District of New York on October 28 concerning an allegedly misleading statement on its label: "Cold-pressed Vegetables." According to the lawsuit Forager's vegetable juices are indeed cold-pressed, but after that process they undergo pressure processing that extends their shelf life up to eight weeks. The complaint argues that the label is misleading: "By voluntarily including the first production step used to make the Products and not disclosing any second production step, reasonable consumers get the impression the products are only cold-pressed. Cold-pressing is an increasingly desired juice production method by consumers because the resultant juice retains greater integrity in composition than if it were made through a centrifugal machine."
  • Massive vegetable recalls. A pair of recalls address possible Listeria contamination of produce from a Mann Packing facility in Salinas, California. The initial recall, issued October 19, only affected produce sold under the Mann brand, but a second, broader recall issued October 22 affects every brand produced at the same time in the same facility. The recall came after the Canadian Food Inspection Agency found listeria in the plant in a single test during a routine inspection – no illnesses have been traced to these products, which have "best if used by" dates from October 11 to October 20. Numerous major retailers throughout the US and Canada are affected by the recall.
  • Peanut executives' convictions will go before appeals court. Food Safety News reported October 5 that oral arguments will be held in November in the US Court of Appeals for the Eleventh Circuit in a case that challenges the convictions and prison sentences of several former officers of the Peanut Corporation of America. The convictions centered on the company's role in a massive cross-border Salmonella outbreak that killed nine people and sickened thousands more in late 2008 and early 2009. Former PCA chief executive Stewart Parnell, his brother Michael Parnell, and the one-time quality assurance manager of PCA, Mary Wilkerson, have appealed their convictions and sentences. Wilkerson was sentenced to five years (and has already served most of her sentence), Stewart Parnell to 28 years and Michael Parnell to 20 years. See some of our reporting on this case.
  • Cook County ends its soda tax. On October 10, the Cook County Board of Commissioners voted by a 15-2 margin to abolish the county's two-month-old tax on sugary beverages. The action was considered a major victory for the beverage industry, and it was the second major win this year for opponents of such taxes – after voters in Santa Fe, New Mexico, rejected establishing a similar tax. Cook County faces a major budget deficit, and the tax was pitched primarily as a means of plugging the $1.8 billion deficit and only secondarily as a means of improving public health. Millions of dollars were spent promoting and fighting the tax. Many local observers have commented that the overturn was likely a result of tax weariness – Chicago currently has higher sales taxes than any other US city, at 10.25 percent, and is facing the possibility of an array of other tax hikes. The repeal is effective at the end of November 2017.
  • Advocates of soda taxes vow to continue organizing in wake of defeat. In an October 15 New York Times op-ed article, healthy-food advocates Anna Lappé and Christina Bronsing-Lazalde contend that, despite the repeal of the Cook County soda tax, advocates will succeed in bringing about more such taxes if they organize properly. The writers say it's crucial from a public-health perspective to build "strong coalitions" that can induce legislators both to adopt new taxes and "to ensure they remain to curb consumption and generate funds for public health programs." While the Cook County decision is a setback, they said, "there's no substitute for good old-fashioned community building."
  • Michigan legislature votes to bar soda taxes in that state. On October 12, the state legislature of Michigan voted to prohibit all localities within the state from levying taxes on food and beverages. Supporters of the bill took note of the various taxes on sugared beverages that have sprung up across the country and said they wanted to prevent them from occurring in Michigan. The bill, which now goes before Governor Rick Snyder for his expected signature, was supported by business groups and, interestingly, by some groups that advocate for the poor. Poor people spend a larger percentage of their income on food than do other Americans. The bill was opposed by health groups, including the American Cancer Society, which submitted testimony in the legislature saying that up to 20 percent of cancers are caused by poor diet, physical inactivity, excess weight and excessive alcohol use. The action would make Michigan the first state to ban local "soda taxes" of the type that have been passed in places such as Philadelphia.
  • Bakers group asks for synchronization of Nutrition Facts, GMO label requirements. The Independent Bakers Association, which represents wholesale bakers nationwide, has called on the FDA to synchronize the deadline for complying with the congressionally mandated GMO disclosure requirement to make it identical with the deadline for complying with the new Nutrition Facts label. The USDA, which oversees the GMO disclosure rules, has not yet given a deadline for compliance. The FDA has proposed a January 1, 2020 deadline for the Nutrition Facts label. The bakers group said that cost and convenience impelled them to make this request. "A top concern for IBA members is avoiding redundant costs in designing and printing new labels to comply with new regulations," the group said. "We firmly believe the benefit of requiring new labels printed once to provide that information, then a year or two later to provide additional information, is outweighed by the immense cost to the entire food-supply chain and to consumers."
  • Business advocates denounce food class actions filed in California. In an October 16 op-ed in the Sacramento Bee, business advocates John Doherty and Lisa Rickard contend that California's federal courts have become a haven for meritless and wasteful lawsuits against food and beverage companies. Doherty is the president and CEO of the Civil Justice Association of California, and Rickard is the president of the US Chamber Institute for Legal Reform. They note in the article that 20 percent of all food-related class actions nationwide are filed in the US District Court for the Northern District of California, which has been informally dubbed the Food Court. They say that these lawsuits are "cash cows for lawyers with little or no benefit for consumers" and that they come about when "law firms search supermarkets for product packages that could lead to a lawsuit, then find a plaintiff willing to put their name on a complaint."

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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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