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

  • Prepacked caramel apples tied to four deaths from listeria. Listeria from prepacked caramel apples has been linked to the deaths of four people, according to the Centers for Disease Control and Prevention. During autumn 2014, 28 people in 10 states were purportedly sickened by listeria after eating tainted caramel apples. The CDC, along with the FDA, is investigating the precise cause of the illnesses and deaths. Meanwhile, the authorities are encouraging consumers not to eat any sort of prepacked caramel apples or similar products until the cause is determined.
  • Kroger says two-year time frame is not feasible for revamped nutrition facts labeling.Kroger, the nation’s largest grocery retail chain, has stated in comments filed with the Food and Drug Administration that a proposed two-year phase-in for the new version of nutrition facts labeling is not realistic and will lead to an increase in food prices. It said that the transition would cost the company $40 million and that five years is a more realistic time frame to complete the phase-in without causing major economic harm.
  • USDA announces changes in labeling requirements for raw meat and poultry. On December 31, 2014, the US Department of Agriculture released a final rule requiring that all processors of raw meat and poultry disclose on their labels any solutions added to the products, such as saline solution. This description must include the percentage of added solution and the individual ingredients or multi-ingredient components in the solution, listed in descending order of predominance by weight. The rule is intended to help consumers know whether a particular product is suitable for their dietary needs.
  • Judge overturns California’s ban on foie gras. Invoking preemption by the federal Poultry Products Inspection Act (PPIA), on January 7 a federal judge in California struck down California’s state law banning the sale of foie gras made from force-fed poultry in that state. The plaintiffs, manufacturers of foie gras and restaurants, argued successfully that states cannot interfere with federally-approved poultry products because they are regulated by the PPIA – a law that, the judge found, gives the federal government exclusive powers to determine which ingredients belong in poultry products. The ruling is not only a setback for animal-rights advocates but has implications for other areas in which both the state and federal governments attempt to regulate simultaneously.
  • Judge hears argument on Vermont GMO law. On January 7, a federal judge in Burlington, Vermont heard argument on the constitutionality of a Vermont statute that requires products sold in the state that include genetically modified ingredients to say so on the label. Attorneys for the food industry are trying to convince the court to deny the state’s motion to dismiss the lawsuit; the Vermont statute, they say, violates the industry’s First Amendment rights and the Commerce Clause. In addition, the Grocery Manufacturers Association has sought a preliminary injunction against implementation of the statute, which is set to go into effect January 1, 2016.
  • USDA delays changes in organic assessment exemption rules. On January 8, the USDA extended until February 17 the comment period for its proposed rule changes related to assessment exemptions for organic food producers. The exemption allows covered companies to avoid paying to help fund commodity promotion programs, such as the “Got Milk” campaign. The exemption is currently only available to entities that produce or market solely 100 percent organic products. The proposed change would expand the organic assessment exemption to cover all “organic” and “100 percent organic” products certified under the National Organic Program, whether or not the person requesting the exemption also produces or markets products that are not organic.
  • Three senators issue report criticizing the energy drink industry’s stance on marketing to teens. On January 9, three US senators – Dick Durbin (D-IL), Edward Markey (D-MA) and Richard Blumenthal (D-CT) – issued a report assailing the energy drink industry for refusing to stop marketing its products to people between 12 and 18 years old. In response to a survey by the senators, only four of 12 producers, representing only 10 percent of industry production, said they do not market to that demographic. The senators also called on the FDA to set a recommendation for the amount of caffeine a child or adolescent can safely consume each day.
  • Schumer criticizes FDA for alleged laxness in inspecting food processing facilities. The punishments being exacted by the FDA for unsafe and unsanitary conditions in food processing facilities are “far too lax,” said Senator Charles Schumer (D-NY) in a strongly worded January 11 letter. Schumer noted FDA actions against food processors are not made public when they occur and there is no process in place for restaurants and consumers to learn about violations on a regular basis – violations are only announced once a year. One of the results of the lack of transparency, the senator added, is that consumers are unaware of the existence of rat-infested food warehouses. The agency said it is overhauling its processes in keeping with the Food Safety Modernization Act (FSMA).
  • Chinese authorities ban import of poultry and egg products from US on disease fears.Noting that Asian flu has been detected in the western United States, Chinese authorities have announced a ban on all imports of poultry and egg products, including processed and unprocessed products and breeding stock. China joins at least other 20 countries banning or limiting the import of such products from the US. In recent months, the H5N2 and H5N8 strains of the flu virus have been found in California, Oregon, and Washington. The USDA announced the ban on January 12 and has responded that the virus has not been linked to any commercial poultry flocks.