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

  • FDA draft guidance aims to cut sodium in US diet. On June 1, the FDA issued draft guidance setting voluntary short-term and long-term targets for the food industry that aim to reduce sodium in the American diet. Average sodium intake in the US, the agency notes, is 3,400 mg/day – almost 50 percent more than most experts recommend. The guidance would help consumers gradually reduce sodium intake to 2,300 mg/day, “a level recommended by leading experts and the overwhelming body of scientific evidence.” Susan Mayne, director of the FDA’s Center for Food Safety and Applied Nutrition, said such dietary changes could “help Americans reduce their blood pressure and ultimately prevent hundreds of thousands of premature illnesses and deaths. Because the majority of sodium in our diets comes from processed and prepared foods, consumers are challenged in lowering their sodium intake themselves.” Indeed, FDA notes, some manufacturers, such as the makers of top-selling pretzel products, have already met the short-term target (3,000 mg/day). The comment period on the short-term goals is open until August 30; that for the long-term goals is open until October 29.
  • Sunflower seed snacks recalled for possible listeriosis contamination. On June 1, Toronto-based SunOpta again expanded its recall of sunflower seed-related products due to concerns about listeria contamination. Six minutes after announcing the expanded recall, Food Safety News reports, the company issued another press release announcing that production has resumed at the affected Ontario facility. Dozens of products, such as breakfast cereals, energy bars and trail mixes manufactured by major companies and sold across the US and Canada are affected, and some of these companies are issuing their own recalls. Both the FDA and Canada’s Food Inspection Agency report no illnesses in connection with the possible contamination. SunOpta president Rik Jacobs said, “We are confident that through our work, in conjunction with external experts, we have identified and eliminated the root causes of the contamination.”
  • GAO calls for stronger worker protections in the meat and poultry industry. A Government Accountability Office report issued May 25 asks “whether the federal government is doing all it can to collect the data it needs to support worker protection and workplace safety” in the meat and poultry industry. Industry injury and illness rates have declined, the report says, but still are higher than those of the overall manufacturing sector. The report also notes the unique data-collection challenges the Department of Labor faces regarding the industry, suggesting that injury rates may be higher than reported, and makes several recommendations for improvements in the reporting process. The DOL, CDC and USDA all concurred with GAO’s recommendations.
  • FDA issues regulations requiring large companies to make plans against possible intentional adulteration of food. On May 27, the FDA issued long-delayed regulations on the intentional adulteration of food. The regulations under the Food Safety Modernization Act require large companies to create “food defense plans” to identify areas of vulnerability to acts of intentional adulteration that can harm public health, and to come up with mitigation plans. The agency said such terroristic acts, while not likely, may cause illness, death, and economic disruption. The Center for Food Safety, which had sued the FDA to force a court-ordered timeline for issuing the rules, lauded the agency’s action, saying the FDA “has finally closed the loop on this landmark food safety system, and with these new tools, is well equipped to protect consumers from the threat of bacterial and intentional contamination.”
  • Vilsack calls for mandatory GMO labeling on a national basis. US Agriculture Secretary Tom Vilsack has called for a mandatory nationwide disclosure law regarding the presence of GMOs in foods. On May 25, Vilsack called on Congress to pass such a statute to avoid the risk of patchwork laws in various states and to give consumers maximum information. He noted that a Vermont GMO disclosure statute will go into effect July 1 and that several large food companies are already providing voluntary GMO labeling on their products. If consumers are confused by varying state laws, he said, they will lose trust in the food and beverage industry and may become less likely to purchase its products.
  • Iowa ag-gag case: state must pay attorneys’ fees. The State of Iowa has been ordered to pay several animal welfare groups nearly $250,000 in attorneys’ fees in the wake of their successful challenge to the state’s law forbidding undercover filming at agricultural operations. The so-called ag gag law was struck down in August 2015 on constitutional grounds; that ruling is under appeal. PETA, one of the groups that challenged the Iowa law, said, “This ruling is a warning to other states that PETA will challenge ‘ag-gag’ laws, we will win, and it will be costly for the state.” Last year, a similar law in Idaho was overturned. Ag-gag laws remain on the books in a few other states – those in North Carolina, Wyoming and Utah are currently facing legal challenges.
  • Pizza Hut removing preservatives, additives. Pizza Hut, which last year removed artificial colors and flavors from its pizzas, announced on May 31 that it will remove two key preservatives used in the meats on its pizzas, as well as all preservatives used in its cheeses. Fortune reports that the additives BHT and BHA (which is listed as a known carcinogen in California) will no longer be used in all Pizza Hut meats by the end of July 2016. Cheese preservatives will be gone by March 2017, also the deadline for all chicken on its pizzas to be antibiotic-free – some observers are noting this change does not encompass non-pizza items such as chicken wings. The chain also aims to remove other additives and preservatives from its menu by 2020.
  • CSPI files lawsuit seeking FDA action on deadly shellfish bacteria. The Center for Science in the Public Interest is suing the FDA in the US District Court for the District of Columbia, calling on the agency to act on CSPI’s four-year-old petition urging it to create a safety standard for control of deadly Vibrio vulnificus bacteria in shellfish harvested in Gulf Coast waters. The Food Safety Modernization Act mandated that the FDA set safety standards around V. vulnificus, which is the leading cause of seafood-associated deaths in the US. Filed May 25, the suit says that without such a safety standard, 30 people will likely become seriously ill and 15 of them will die each year after consuming raw shellfish that contain the bacterium. “To protect public safety and prevent needless death and serious illness, CSPI seeks a declaration that [the FDA] has acted unlawfully by withholding action on CSPI’s petition and an order requiring defendant to act,” the complaint says.
  • Kellogg targeted over Cheez-It Whole Grain crackers. A complaint filed in the US District Court for the Eastern District of New York on May 19 alleges that the Kellogg Company’s Cheez-It Whole Grain crackers are nearly identical nutritionally to the original version of Cheez-Its and mostly contain white, not whole grain, flour. A serving of Cheez-It Whole Grain, the suit notes, contains just one gram of fiber – the same amount as in regular Cheez-Its. According to CSPI Litigation Director Maia Kats, “It’s effectively a junk food.” Kellogg’s calls the lawsuit “completely without merit.” The company said, “Our Cheez-It Whole Grain labels are accurate and in full compliance with FDA regulations. We stand behind our foods and our labels.”
  • School nutrition group opposes conservative efforts to change federal school lunch and breakfast program. The School Nutrition Association, which represents providers of school lunches nationwide, is now seeking to reverse an effort by conservatives to possibly replace the federal school breakfast and lunch programs with block grants. The SNA had opposed some of the Obama Administration’s efforts to set standards for healthy foods in schools, but now it is taking a stance against a three-year block-grant pilot proposal in three states, which many critics say would lay the groundwork for reducing funding and eliminating federal involvement in school nutrition. On May 18, the House Education and the Workforce Committee voted to advance a child nutrition reauthorization bill with those block grants included. “The block grant pilot is the opening salvo in an aggressive, alarming attack on the future of school meals,” said SNA President Jean Ronnei in a statement issued after the vote. “The provision opens the door to a broader effort to block grant school meal programs nationwide.” SMA members are actively lobbying against the proposal.
  • Consumers Union says QR codes are not a solution to GMO labeling issues. On May 18, Consumers Union announced its opposition to the possible use of QR codes to identify products that may contain GMOs. QR codes have been advanced by some as a possible compromise in the dispute concerning mandatory GMO labeling. Vermont’s mandatory labeling law goes into effect on July 1, and some have suggested that rather than require traditional labels, states could require that these products have QR codes indicating the presence of GMOs, which can be scanned by a consumer using a smartphone. Consumers Union said that many people, especially older people and those with lower incomes, do not have smartphones and that only 16 percent of people in any case have ever used a QR code for any purpose.
  • Nanoparticles in baby formula. An independent research study commissioned by the nonprofit Friends of the Earth has found nanoparticles in six out of six powdered baby formulas it tested. Food Safety News noted on May 22, “Concerns about nanoparticles are that they are small enough to penetrate the skin, lungs and digestive system, and perhaps pass through the vital blood-brain barrier.” Nanoparticles are used in hundreds of consumer products. In the EU, nanoscale food ingredients must be labelled, but in the US their presence in foodstuffs is not labeled, and they are not regulated. Little is known about the way they work. Numerous Internet websites and blogs reporting on the study are asking the same question: “should parents be worried?” Some observers are noting that the largest purchaser of baby formula in the US is the federal government, through USDA’s Special Supplemental Nutrition Program for Women, Infants, and Children, commonly known as WIC.