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

  • Report finds no danger to human health in consumption of GMOs. In a 388-page report released May 17, the National Academies of Sciences, Engineering and Medicine said it has found no evidence of adverse health effects in humans from the consumption of GMOs after 20 years of their common use. The academies reviewed nearly 900 studies and years of data seeking possible increases in cancer, obesity, gastrointestinal illnesses, kidney disease, autism and allergies, but found no causal connection. The group noted disagreements about whether glyphosate, an herbicide paired with crops engineered to be resistant to it, has the potential to cause cancer. It also said the use of GMOs has led to increases in weed and pest resistance and called for incentives to push farmers toward practices that delay the evolution of resistance in weeds and pests.
  • Judge refuses to halt implementation of city law in San Francisco on sugary sodas. A federal judge in San Francisco refused on May 17 to grant a preliminary injunction blocking a city law that requires ads for sodas and other sugary drinks to carry a label reading “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” Unless successfully appealed by beverage and advertising industry groups, the decision by US District Judge Edward Chen means the law will go into effect on July 25 as scheduled. The American Beverage Association and two other groups will still have the right to a full trial on their lawsuit at a later date, but the law will remain in force until the trial concludes. The Center for Science in the Public Interest applauded the ruling, while industry groups said that soft drinks are being unfairly targeted and that people who drink less soda will simply increase their caloric intake from other foods.
  • Manufacturer settles case concerning its use of the terms “natural” and “all natural.” Colorado-based Good Karma Foods has settled a class action by agreeing to stop using the terms “natural” or “all natural” to refer to its products and has agreed to pay up to $350,000 to consumers who alleged injury from the claims. The company did not acknowledge that it was at fault or that it made any misleading statements. Currently, the FDA is looking into the possibility of creating a formal regulatory definition for the term “natural,” and a comment period on that issue closed earlier this month. In the Good Karma case, the plaintiff had asserted that the company’s products contained xanthan gum, tricalcium phosphate, and vitamin A palmitate, among other substances that were asserted to be not “natural.” See our coverage of the KIND “healthy” labeling story as well as the FTC’s moves against “natural” claims here.
  • Conservatives organize change school lunch program. According to Politico, Heritage Action, a conservative political activist group, is now engaged in concerted action to make new recommendations concerning the federal school lunch program. The group says it has been working to influence legislators to revamp the program. On May 17, the House Education and Workforce Committee, possibly influenced by outside conservative opinion, added new language that would create a pilot program to test the idea of creating block grants for school meal programs in three states for three years. This idea is being viewed by many health advocates as an assault on federal nutrition programs. The School Nutrition Association, which represents school lunch providers nationwide and has been skeptical of the Obama Administration’s proposals on school nutrition, came out against the proposed changes.
  • Illinois legislators consider soda tax to raise revenue. A bipartisan group of Illinois legislators is proposing a soda tax to reduce the state’s debt. Under the plan, a one cent per ounce tax would be leveled on sugary drinks. Legislators proposed the tax primarily as a revenue-raising measure in order to reduce or eliminate a budget deficit. They estimate that the new tax would bring in about $375 million to help balance the state budget. A similar tax proposal was put forth in 2014 but rejected. Illinois currently has the worst credit rating of any US state and a $4 billion budget shortfall.
  • Is the food industry plagued by “weird” lawsuits? A lawsuit filed April 27 in US District Court in Illinois alleges that Starbucks is misleading consumers about the size of its drinks by adding too much ice. Market Watch wrote on May 7 that this is just one of the “weird food lawsuits” that are keeping the courts busy these days. Starbucks calls the lawsuit “frivolous and without merit,” but Market Watch quotes Susan Schneider, a law professor and director of the Agricultural and Food Law program at the University of Arkansas School of Law, as saying that lawsuits like this can be “a way of keeping an industry honest so they don’t get by with just nickeling and diming people and making a lot of money on it.” Schneider adds, however, that Starbucks could gain in the court of public opinion if the case ends up “looking stupid.” And Michael Roberts, executive director of the Resnick Program for Food Law and Policy at the UCLA Law School, says in the article that suits that are eventually seen as frivolous may actually hurt the cause of fixing the labeling issues that do exist in the industry.
  • FDA decides to ban e-cigarette sale to youths and to require ingredient disclosure. On May 5, the US government decided to ban the sale of e-cigarettes to people under the age of 18 and to require manufacturers of the devices to disclose their ingredients and submit their products to the government for advance approval. Public health advocates supported the regulatory changes. Industry leaders reacted negatively, warning that requiring advance approval could harm the small businesses that produce e-cigarettes and could ultimately deprive consumers of what they say is a less harmful alternative to conventional cigarettes. The decision by the FDA was motivated in part by studies that show nicotine is considered more unsafe for children and adolescents than for adults. In 2014, more than 12 percent of US high school students used e-cigarettes. On May 10, Nicopure Labs LLC, which sells so-called vaping devices, filed a lawsuit against the FDA, contending that the breadth of the regulatory regime’s reach is “staggering” and that the agency has overreached.
  • Frozen food recall for listeria contamination is expanded. A food recall being reported in national media as one of the largest in recent memory now involves millions of packages of frozen fruit and vegetables produced as far back as 2014. The initial recall of products originating with CRF Frozen Foods in Pasco, Washington over listeria concerns began in early April. By May 24, it encompassed more than 400 products bearing more than 40 brand names and sold via major retailers in all 50 states plus Canada, Mexico and the UK. The Detroit News reports that recently developed whole-genome sequencing of food-contaminating bacteria has played a critical role for the FDA in tracing the outbreak. CRF has shuttered its Pasco plant as it strives to pinpoint the contamination source. Eight people in three states have been sickened in the outbreak and two have died, although the Centers for Disease Control has said listeria was not the cause of death in either of the latter cases.