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

  • Explosion in corn mill. OSHA has launched an investigation into the May 31 explosion and fire at a corn mill in Cambria, Wisconsin, a village about 90 miles northwest of Milwaukee. WISC-TV reports that multiple fire departments, ambulances and medevac helicopters were called to the scene on Wednesday night. One worker died in the blast; at this writing, at least a dozen are hospitalized and two are still missing. The Washington Post reports that in 2011 OSHA cited the Didion Milling Plant "for exposing workers to hazards associated with dust explosion and other fire hazards. The records say filters in the plant lacked an explosion protective system." Village President Glen Williams told media that the corn mill "was a three- or four-story structure that no longer exists."
  • FDA is sued over alleged illegal delegation of GRAS designations. On May 22, the Center for Food Safety, the Center for Science in the Public Interest, the Environmental Defense Fund, the Environmental Working Group and Breast Cancer Prevention Partners, sued the FDA, claiming the agency has illegally abandoned its obligation to judge what ingredients are "generally recognized as safe," or GRAS. According to a statement from the Center for Food Safety, the FDA has illegally delegated its authority in this area to self-interested food and chemical manufacturers. In 1997 and again in 2016, the FDA adopted a rule allowing food and ingredient manufacturers to obtain a GRAS designation for an ingredient if it met basic guidelines for food additives and if members of the scientific community could show with reasonable certainty that the ingredient would not harm consumers. The lawsuit was filed in the US District Court for the Southern District of New York. "Most Americans would be shocked to learn that FDA allows novel chemicals onto the market without a safety review," said Tom Neltner, chemicals policy director at the Environmental Defense Fund.
  • Group urges FDA to permit interstate shipping of raw milk. The Real Food Consumer Coalition has asked the FDA to allow raw milk to cross state lines if it is labeled with a warning about its health risks. The group also wants the products to be labeled with instructions for safe handling, including the proper method of home pasteurization. The group believes the current intrastate supply of unpasteurized milk and raw milk is insufficient to meet demand. The coalition is a new free-market-oriented group that wants to foster a process in which consumers are fully informed and can make their own decisions about food. For health reasons, the transportation of unpasteurized and raw milk across state lines has been banned for the last three decades.
  • State milk regulators weigh in on milk-labeling dispute. The nationwide debate over the labeling of plant-based milks continues. State milk regulators have weighed into the debate in a vote that was hailed by the National Milk Producers Federation as "the strongest statement yet that the abuse of dairy terms has gone too far," but dismissed as unhelpful by the Plant Based Foods Association. On May 17, at a meeting of the National Conference on Interstate Milk Shipments, the regulators voted to ask the Food and Drug Administration to work with state agencies in prohibiting the labeling of dairy-free plant products such as soy milk or almond milk as "milk."
  • Rice industry expresses deep concern over labeling of "cauliflower rice."Not to be outdone by the dairy milk industry's current concern over "milk" labels on non-dairy products, the rice industry is now expressing outrage at the increasingly common term "cauliflower rice," a product made from shredded cauliflower. Rice manufacturers say consumers could be deceived by the cauliflower industry's appropriation of the term "rice." Betsy Ward, president of the industry's lobbying group USA Rice, said on May 11, "Only rice is rice, and calling 'riced vegetables' 'rice,' is misleading and confusing to consumers. We may be asking the Food and Drug Administration and other regulatory agencies to look at this." The industry could ask Scott Gottlieb, the FDA commissioner, to get involved in enforcing the federal "standard of identity" for rice.
  • One person dies of botulism from nacho cheese sauce. The California Department of Public Health has confirmed that nacho cheese sauce sold at a gas station in Sacramento County, California has tested positive for the toxin that causes botulism. One person died on May 18 and nine more fell ill after consuming the contaminated food; at this writing, all nine survivors are still hospitalized and on ventilators. It still is not known how the product became contaminated. The department said there is no ongoing danger to the public, and it did not issue a mandatory recall. The FDA is not commenting on the outbreak, although Food Safety News suggests that the agency may be inspecting the facility where the cheese was produced. Gehl Foods LLC of Germantown, Wisconsin is the manufacturer.
  • "Pink slime" lawsuit. Jury selection in the defamation case BPI v. ABC over the network's consumer reports on BPI's ground beef product started on May 31 in the Union County Courthouse in Elk Point, South Dakota. Food Safety News reports that the trial is expected to last nine weeks and involve at least 50 lawyers, and is referring to it as "the trial of the century" for the region. BPI's chief product is called "Lean Fine Textured Beef" and is not approved for direct consumer sale. It was, and is, sold to school systems, packaged food manufacturers, the military and restaurant chains. ABC's 2012 coverage shone a spotlight on the product; in those reports, reporter Jim Avila used a term actually coined by a USDA inspector: "pink slime." BPI is suing under a variety of claims, including libel, agricultural disparagement and interference with business operations, claiming losses of $400 million as a result of the ABC coverage, alleging that as the nickname caught on with the public, BPI lost numerous contracts and had to close three of its four plants and lay off 700 workers. Under the South Dakota agricultural disparagement law, if BPI wins, it could be awarded triple damages, putting ABC on the hook for as much as $1.2 billion. On May 31, NPR commented that the case could prove to be a bellwether of public attitudes toward the media.
  • Supreme Court denies review of egg company officers' sentences. On May 19, the US Supreme Court declined to review the sentences of Austin "Jack" DeCoster and his son Peter DeCoster, both of whom pleaded guilty to misdemeanors in connection with their roles in bringing about a 2010 Salmonella outbreak. The DeCosters were officers of Quality Egg LLC, which recalled a record 550 million eggs after the outbreak was discovered. Because the Supreme Court denied review, each of them is now set to spend three months in a minimum-security federal prison. Their Supreme Court appeal had gained broad support in the business community, which had sought to limit the circumstances when a "responsible corporate officer" could be imprisoned without intent or knowledge under the Park Doctrine. The Park Doctrine has significant implications for food company executives and an increasing trend of individual enforcement. See our article from NYSBA Inside on this issue.
  • Suit challenges Mott's applesauce because it contains pesticide residues. On May 5, the environmental group Beyond Pesticides sued Mott's parent company for calling some of its applesauce "natural," when it contains a residue of the pesticide acetamiprid. Mott's is owned by Dr. Pepper Snapple. The group says that the presence of any pesticide residue in the product should disqualify it from being characterized as "natural," which it says implies to consumers that the product does not contain any synthetic substances. The suit was filed under the District of Columbia's Consumer Protection Procedures Act.
  • Senate panel approves regulatory reform act. On May 17, a US Senate committee approved the Regulatory Accountability Act, which is described as a bill to streamline US regulatory policy and to require cost-benefit analysis of new federal rules. This is the bill that some nonprofit groups call the "Filthy Food Act," because in their view it will hamstring the ability of food regulators to protect the public from contaminated food. The bill is now headed for the Senate floor, where it faces bipartisan opposition from Senators Claire McCaskill (D- MO) and Ron Johnson (R-WI). "The bill would affect every aspect of America’s food supply, undermining federal work to prevent bioterrorist attacks on our food sources, inspect meat and eggs for Salmonella, reduce antibiotic-resistant bacteria in meat and poultry, and inform consumers about the content of the foods we eat," said a statement from the Center for Science in the Public Interest.
  • Food regulators express confidence in future of regulation under Trump. On May 12, Food Dive magazine reported on the statements of top federal food regulators at the Food Safety Summit meeting in Chicago. The magazine said the regulators are confident about the future of effective food regulation in the Trump Administration. "For me, I believe food safety is going to be one of the best worlds to be in these next four years," said Alfred Almanza, the USDA's acting deputy undersecretary for food safety and administrator of the Food Safety and Inspection Service. Also present and expressing similar sentiments were top officials from the FDA, CDC and the Association of Food and Drug Officials, which brings together local, state and federal regulatory officials.