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

  • Beverage tax vote today in Philadelphia. Today the Philadelphia City Council is expected to pass a tax on sweetened beverages, making it the first major city in the US with such a tax. Last week, a city council committee voted in support of a 1.5 cents per ounce surcharge on a broad swathe of beverages: sodas (including diet sodas), sports drinks, sweetened teas, and other drinks that contain added sugars. Philadelphia magazine reports that nearly $3 million was spent trying to defeat the measure. The estimated $91 million in new revenue the tax would bring in over the next year would be used to fund the city’s education programs, including expanding prekindergarten, as well as paying for park improvements and strengthening the city’s general fund. To date, only little Berkeley, California has succeeded in imposing a tax on soda, and it is a far more limited measure.
  • FDA guidance defines the term “evaporated cane juice.” On May 25, the FDA issued formal guidance to the food industry expressing its view that the term “evaporated cane juice” is not the “common or usual name of any type of sweetener.” The correct name for the substance, said the FDA, is: sugar. The term “evaporated cane juice,” the agency said, suggests a fruit or vegetable juice, such as orange or tomato juice, rather than a crystallized substance that is indistinguishable from sugar. The FDA did say it would not object to the addition by manufacturers of one or more truthful adjectives before the word “sugar.” The guidance is expected to strengthen the hand of those who are seeking to file lawsuits against manufacturers over the allegedly misleading use of the term “evaporated cane juice.” Indeed, the guidance is already playing a role in a class action suit in the Northern District of California involving the sugar content of a brand of kefir, where in a brief filed on June 9 plaintiff lawyers told the court that the FDA’s view is that “evaporated cane juice” is not the “common or usual name of any type of sweetener.”
  • Coalition urges USDA action to strengthen the required labels for meat and poultry.The Safe Food Coalition has urged the USDA to take action to revise the required labels for raw and partially cooked meat and poultry products. The coalition, which is dedicated to reducing the burden of foodborne illness by strengthening government inspection programs, filed a petition on May 31 calling for the USDA to require labels for these products to include recommended end-point temperatures and appropriate “rest times,” as well as instructions on using a thermometer to gauge the safety of meat and poultry and information on safe handling practices. The group said that the current list of safe handling practices on the required labels, developed in 1994, is outdated and should be revised to ensure public health.
  • CSPI begins campaign against foods that exceed FDA’s voluntary sodium levels. In the wake of the FDA’s recently announced draft voluntary sodium reduction targets, the Center for Science in the Public Interest has begun a social-media campaign pointing out some common products that fail to meet those guidelines. For example, on June 3 the group tweeted about a popular chicken nugget product which it says exceeds the FDA’s long-term maximum sodium level by 51 percent. Politico pointed out in a commentary that although the guidelines are voluntary, “CSPI’s social media call-out illustrates that companies are subject to public shaming regardless – with FDA’s numbers as the ruler by which they will be measured.” At the date of this writing, CSPI has identified a dozen more popular fast foods with sodium levels that allegedly exceed both the short-term and long-term sodium goals.
  • First Lady describes role of marketing and advertising in improving childhood diets. In an op-ed article in the June 6 issue of Adweek, First Lady Michelle Obama summarized her long-running campaign to improve childhood health and nutrition and address the issue of childhood obesity. “We all know that advertising works, so we figured, why shouldn’t fruits and vegetables get in on the action?” Obama wrote. Drawing a link between the marketing campaigns for better nutrition that she fostered and the progress that she says has been made in ensuring that more children are eating healthy foods, she noted that “while it’s true that childhood obesity rates have stopped rising for the first time in decades, and rates are dropping for our youngest kids, we haven’t yet achieved the ultimate change we seek, which is to end our childhood obesity epidemic and raise a healthier generation.” Obama pledged to continue working on the issue for the rest of her life, even when her days as First Lady are over. See our earlier coverage of her long campaign to change the way Americans eat.
  • Two sunflower seed recalls due to listeria fears. The massive recall of products containing sunflower seeds originating with Toronto-based supplier SunOpta continues to expand. On June 14, two additional companies announced their own recalls of a variety of snack products containing SunOpta seeds, due to fears of listeria contamination. Products like energy bars, breakfast cereals, sunflower seed butters, and trail mixes sold by more than 40 companies across the US, Canada and the UK are involved. No illnesses have been reported that can be ascribed to the SunOpta seeds, but on June 3 the FDA announced that sunflower seeds from New York State-based First Source, the subject of a separate recall, were linked to two illnesses. First Source is a packager and distributor of candies and specialty foods for national brands and store brands, as well as food service manufacturers. See our earlier coverage of the SunOpta recall.
  • FDA responds to inspector general’s criticism of its food recall efforts. The FDA has responded to findings by the Office of Inspector General of the Department of Health and Human Services that criticized the agency for maintaining a food recall process that is ineffective and inefficient. The inspector general had said the FDA does not have in place appropriate policies to ensure quick voluntary recalls of potentially dangerous products and that hazardous foods can thus get into the supply chain despite the agency’s efforts. The FDA responded to the report on June 9 by noting that in the period in question, it had overseen thousands of food recalls, with an average response time of less than a week. FDA agreed that certain recalls had gone much more slowly and called those delays “unacceptable.” FDA also said that it is initiating a “rapid response team” and using new technology to make recalls proceed faster.
  • Goya Foods is target of lawsuit on alleged misbranding of octopus. On May 11, New Jersey-based Goya Foods Inc. was hit with a class action in federal court in California brought by a consumer who alleges he was deceived by Goya Foods when he bought its canned octopus. Seeking nationwide class certification, the plaintiff says his DNA testing confirms that the product in the can is actually jumbo squid and that he would not have purchased the food had he known it wasn’t actually octopus. Damages to the entire class would exceed $5 million, the plaintiff said. Goya Foods is the nation’s largest Hispanic-owned food company.
  • Group sues FDA for documents on the use of “soy milk” by manufacturers. The Good Food Institute, an advocacy group that supports the use of plant-based foods, has filed a lawsuit against the FDA seeking disclosure of all records “related to the FDA’s regulatory treatment of the common and usual name ‘soy milk’ or ‘soymilk.’” The group says the FDA has been inconsistent on the issue, permitting some companies to use terms that include the word “milk,” while other companies have been told they should label their products as “soy beverage” or “soy drink.” The group sought documents from the FDA under the Freedom of Information Act but, it says, received only a partial response. It says it is trying to resolve “uncertainty” regarding the FDA’s position on the use of the word “milk” for plant-based products.