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

  • Colorado judge permits Boulder initiative on sugary drinks to proceed. A Colorado district court’s September 6 ruling paves the way for a ballot initiative in Boulder, Colorado this November on whether the city should impose a tax on sugary drinks. The court ruled it does not have authority over the actions of the Boulder City Council, which placed the measure on the ballot. The Colorado Beverage Association, stated that it was disappointed in the ruling. “Legal concerns have been raised, including by the city attorney,” the statement said, “and moving forward on placing this measure on the November ballot does a disservice to Boulder families and businesses. We will continue to support any further challenges to this misleading measure.” If the measure passes, the city would impose a two cent per ounce tax on soda and other sugary drinks. The measure would impose an excise tax on the distributor, not a sales tax on the consumer.
  • Study shows possible effects of Berkeley’s new tax on sugary drinks. The nonprofit group Healthy Food America reported in late August on a study showing consumption of soda and sugary drinks in low-income neighborhoods of Berkeley, California dropped by 21 percent just after the city introduced a one cent per ounce tax on such beverages. The group quoted Dr. Kristine Madsen, the study’s senior author and an associate professor of public health at the University of California, Berkeley, as saying, “Low-income communities bear the brunt of the health consequences of obesity and diabetes, so this decline in soda and sugary beverage consumption is very encouraging.” Instead, the study found, Berkeley residents reported drinking 63 percent more bottled water. The group said this news is encouraging for other cities, such as Philadelphia, where taxes on sugary drinks are being implemented.
  • CSPI organizes campaign to remove synthetic dyes from ice pops. The Center for Science in the Public Interest is campaigning to encourage Jel Sert, the maker of Pop Ice and Fla-Vor-Ice, to remove all synthetic dyes from its frozen products. “There is now a consensus among knowledgeable scientists that dyes harm some children by triggering adverse behavioral reactions such as hyperactivity,” the CSPI said. “Instead of getting their colors and flavors from fruit, these familiar pops are mostly sugar spiked with Red 40, Yellow 5, Yellow 6, Blue 1, or some combination.” The campaign was posted on Facebook on September 7.
  • CRN begins pilot program to test new food supplement registry. On September 6, the Council for Responsible Nutrition (CRN), which represents food supplement makers, announced that nine supplement companies are voluntarily beta-testing a new dietary supplement product registry. This voluntary self-regulatory program will provide consumers with transparency about the ingredients in dietary supplements and will, in CRN’s words, “take back our industry from the lawbreakers, from the renegades, from the companies that spurn regulation.” Steve Mister, the president and CEO of CRN, said, “The product registry is a potential game-changer for our industry and we’ve been grateful to see the enormous amount of support from so many in the industry, including both member companies and non-member companies, as well as some major retailers who have expressed strong interest in how it might eventually help them decide what to put on their shelves.”
  • Congress passes bipartisan Global Food Security Act. This summer, the US Congress passed the bipartisan Global Food Security Act. The basic tenet of the law, which has gone almost unreported in world media, is that it is in the national security interest to reduce food insecurity globally. The law allocates more than $7 billion to initiatives supporting small food producers and the nutrition of women and children, while also funding provisions for the US response to natural and man-made disasters. After signing the bill, President Barack Obama said, “Development isn’t charity. It’s one of the smartest investments we can make in our shared future, in our security, in our prosperity.”
  • Hep A in the news. The incidence of Hepatits A outbreaks has dropped dramatically across the US in the last 20 years, a result of childhood vaccination. But many adults and even teenagers remain unvaccinated. Hep A can be transmitted through food, beverages and direct contact. While it is rarely fatal, it can cause liver failure.
    Hawaii Hep A outbreak sickens more than 250. In August, the Hawaii State Department of Health ordered 11 Oahu and Kauai restaurant locations of the Genki Sushi chain to close, as officials sought to halt the worst Hepatitis A outbreak in the state in decades. At this writing, more than 250 – all of them adults – have fallen ill with the liver disease and additional patients continue to emerge; more than 25 percent became so sick they were hospitalized. While Hep A is often spread by infected food handlers, this time the source appears to be frozen scallops, imported from the Philippines and served raw.

    One result of the outbreak is a new partnership between the Hawaii Restaurant Association and the Hawaii Medical Assurance Association to vaccinate all restaurant workers in the state for Hep A. Another result: during the investigation, all restaurant workers across Hawaii were tested for Hep A; Food Safety News reports a number of restaurants, including popular fast-food spots, discovered at least one employee who tested positive. The state health department has posted an outbreak update web page listing those restaurants and including possible exposure dates, and numerous pharmacies are offering the post-exposure vaccine.

    In late August a class action lawsuit was filed in Hawaii’s First Circuit Court, specifically on behalf of people who did not get sick with Hep A. The person who filed the suit had eaten at a Genki Sushi and, once the recall was announced, followed health officials’ advice and obtained medical treatment, including post-exposure immunization. Those exposed to Hep A have a two-week window to protect themselves with post-exposure vaccination. He is seeking compensation for himself and others who similarly took such safety measures for medical expenses, lost wages and other damages.

    And on the East Coast, a seven-state Hep A outbreak is linked to strawberry smoothies. Frozen strawberries imported from Egypt and served in smoothies at Tropical Smoothie Café locations in Virginia are the source of a seven-state Hep A outbreak. As of this writing, the CDC reports 89 people have fallen ill with the virus; more than half have been hospitalized. Virginia health officials are coming under fire for waiting more than two weeks before issuing notifications about the source. As the Charlottesville Daily Observer editorialized, “some victims contracted a serious disease who might otherwise have been forewarned and given the chance to protect themselves.”

    While in both outbreaks the most likely source of infection has been removed from the food chain, state epidemiologists are predicting that additional victims may yet emerge, particularly in the frozen-strawberries outbreak, due to Hep A’s 50-day incubation period.
  • FDA extends deadlines for compliance with FSMA rules. FDA has extended and clarified the compliance dates for certain aspects of the rules that mandate compliance with the Food Safety Modernization Act of 2010. The extensions apply to four of the seven primary rules under the FSMA, affecting the Current Good Manufacturing Practices (CGMP) for human and animal food, as well as the Foreign Supplier Verification Programs (FSVP) and the Produce Safety rules.
  • New website will permit transparency and dialogue on federal GMO law. The USDA has set up a website that will provide a timeline to explain the rules governing the new federal law about disclosure of the presence of GMOs in food and to promote industry compliance. The site will be continuously updated, and industry members and the public will be able to subscribe to email updates as well. The new law was signed by President Barack Obama in July 2016.