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

  • Senate confirms new FDA commissioner. On February 24, the US Senate confirmed, by a vote of 89-4, the nomination of Dr. Robert M. Califf to head the FDA. Dr. Califf had been criticized for what some consider his close ties to industry. He has been a consultant to drug companies and ran a research institute at Duke University that received a majority of its funding from the pharmaceutical industry. Many experts have responded that the industry is a principal financier of research in the United States and that working with companies does not present an inherent conflict. In addition, Senator Lisa Murkowski (R-AK) had held up the nomination for some time because she wanted the FDA to require the labeling of genetically modified salmon.
  • Acting FDA commissioner tells House panel the agency has many priorities on food safety. Stephen D. Ostroff, acting commissioner of the FDA, appeared before a US House of Representatives Appropriations Committee panel on February 25 and assured members that the agency has a long list of priorities on food, including ensuring that the nation's seafood supply is safe. At the hearing, Representative Rosa DeLauro (D-CT) contended that the agency doesn't have enough funding to carry out its import safety mandate under the Food Safety Modernization Act. Some health advocates and state health officials have criticized the Obama Administration for proposing only a $25 million increase this year for food safety, when a $109 million increase was proposed last year.
  • Maytag expands recall of blue cheese. On March 4, Maytag Dairy Farms announced that it is temporarily closing its Newton, Iowa-based plant while the voluntary recall of its "Maytag Blue" blue cheese wedges, wheels and crumbles expands. Two lots of the cheese were discovered to be contaminated with Listeria monocytogenes in routine state testing. No illnesses have yet been reported from the cheese, and Maytag has temporarily suspended production so that FDA and Iowa authorities can ascertain what problem exists, if any.
  • Judge declines to block New York sodium-disclosure menu rule. The National Restaurant Association (NRA) is seeking to block New York City's new requirement that restaurants in the city post a high-sodium warning – in the form of a triangular salt-shaker icon – on menus for foods that contain more than 2,300 milligrams of sodium. On February 24, a New York state court rejected the bid, ruling that since the city ordinance does not prohibit any restaurant from selling high-sodium foods but merely increases consumer information, it is within the authority of the city Board of Health to promulgate. Then on February 29, the Appellate Division of the New York Supreme Court granted the NRA's request for an emergency stay of the mandate. Next, an appellate court panel will decide whether to grant the NRA's motion for a preliminary injunction, and, after that, an appeal of the case will be heard.
  • Senate committee considers bill to preempt states from requiring labels on GMO foods. As a US Senate bill to preempt states from issuing their own mandatory labeling laws for foods containing genetically modified ingredients advances, consumer advocates are organizing to urge rejection of the bill. On February 25, a Senate committee was set to consider the bill, which would require the US Secretary of Agriculture to established a uniform federal standard for GMO foods. Markup was postponed, however, at the request of Senator Debbie Stabenow (D-MI), because her bill providing assistance in Flint, Michigan's water crisis was heading to the Senate floor at the same time. Meanwhile, Vermont's state labeling statute will go into effect on July 1, and New Hampshire and Rhode Island are the latest states to be considering GMO labelling bills of their own. The legislation in the Senate is similar to the Safe and Accurate Food Labeling Act of 2015, which passed the House in July. Supporters of state regulation point out that 64 nations already require such labeling. Opponents say regulation would increase food costs and would not give consumers valuable information. See our recent coverage of this developing story here and here.
  • Wal-Mart is sued over cellulose content of its Parmesan cheese. On February 23, a consumer sued Wal-Mart in US District Court in Manhattan, alleging that the retailer sold Parmesan cheese that included as much as 10 percent cellulose, or wood pulp, while characterizing the product on the label as 100 percent cheese. Cellulose is not inherently a harmful ingredient, but the FDA has said that safe consumption levels for it in Parmesan cheese are in the 2 to 4 percent range. The plaintiff is seeking class-action status for his complaint. Wal-Mart has not yet responded in court, but a spokesman for the retailer said that the company takes the matter seriously and "will review the allegations once we have received the complaint and will respond appropriately with the court."
  • Garden of Life finds likely source of contamination in one of its products. Garden of Life, a company that manufactures organic and non-GMO products, has identified the likely source of Salmonella contamination in its RAW Meal Organic Shake and Meal products and has said that it will remove the ingredient from future batches of the product. The Centers for Disease Control and Prevention has found that as of February 19, a total of 18 people in 15 states were sickened by the product and that four were hospitalized. The company says the likely contaminant was organic moringa leaf powder used in the shake and meal products. The products have been recalled, and the company's president said that Garden of Life will use this incident as an opportunity to review its entire manufacturing and distribution system "with an eye toward making a safe system even better."
  • Sprouts in the news. State and federal health officials announced on February 24 that they are looking into an outbreak of food-borne illness from alfalfa sprouts distributed by Jack & The Green Sprouts, a company based in River Falls, Wisconsin. Nine people, all in the upper Midwest, have been sickened by an E. coli outbreak linked to the company's sprouts, and two were hospitalized. Minnesota officials are working with investigators at the CDC, the FDA, and the Wisconsin Department of Agriculture, Trade and Consumer Protection. Then on March 2, a consent decree filed in a Virginia federal court effectively shuttered Henry's Farm Inc., a manufacturer and distributor of soybean and mungbean sprouts, and barred its owner from ever operating in the food industry again. Henry's Farm first came to the attention of authorities in 2012, when numerous food safety violations were found in its facility, among them listeria contamination and the presence of rodents. Since then, FDA and Virginia authorities had worked with the company seeking to improve conditions, then issued repeated warnings to it. Its products were subject to multiple recalls. Officials in the Virginia agriculture department's food safety and security program said the investigation of Henry's Farm was the longest running one they could recall.
  • Popular applesauce pouches recalled. Specific batches of GoGo squeeZ applesauces are being recalled by Materne North America Corp. following a routine inspection that found potential adulterants in product pumps at the company's Michigan plant. No illnesses are associated with the recall. On March 6, Michel Larroche, founder and CEO of Materne, released a public apology: "I can't begin to express how sorry we are that this happened, and we appreciate your patience and support." Production at the Traverse City plant has halted while the company works with the Michigan Department of Agriculture and Rural Development to investigate and resolve the problem. Larroche said, "We will not begin production in this factory again until we are confident the problem is fixed."