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

  • Congress compromises on school lunch changes. Congress reached a compromise in the omnibus 2015 spending bill to partially roll back nationwide school lunch nutritional regulations promulgated by the USDA under the Healthy, Hunger-Free Kids Act. Some Republican legislators said the requirements, particularly those related to whole grains and lower sodium, were onerous and difficult for school districts to meet. Under the compromise, the lower sodium rules are blocked until scientific research establishes the benefits, and schools may obtain hardship exemptions from the whole grain requirements.
  • FDA sees no need to change the current guidelines for exposure to BPA. The Food and Drug Administration has updated its website to indicate that its latest assessment of the safety of BPA (Bisphenol A), frequently used to manufacture plastic bottles and as a lining in cans, provides an adequate margin of safety for consumers. Some critics have claimed that consumption of products packaged in BPA may result in elevated blood pressure and other negative health effects, but the FDA concluded, based on rodent studies, that the currently specified levels of exposure to BPA are adequate to protect consumers.
  • FDA schedules two-day meeting to discuss e-cigarettes. On December 10 and 11, the FDA held a two-day public meeting to discuss the issues involved in possible regulation of electronic cigarettes. Last April, the agency for the first time proposed regulations for e-cigarettes, including banning sales to minors and requiring health warning labels. Although the FDA seems to be moving slowly on the issue, in late November several GOP leaders in the House of Representatives expressed concern about the proposed rules, saying they would “impede innovation and impose unnecessary regulatory burdens” on the emerging e-cigarette industry.
  • FDA includes “lost pleasure” calculation in assessing rule on calorie counts at restaurants. Reuters reported on December 8 that in calculating the costs and benefits of a new rule that requires restaurants, movie theaters and other sellers to post calorie counts of the food they sell, the FDA included up to $5.27 billion in “lost pleasure” for consumers over a 20-year period. This might include the loss of pleasure that people feel in forgoing a high-calorie food because of their awareness that it is high in calories. Many public health advocates think these calculations should not be included because they add to the costs of the rule, changing the cost-benefit calculus and making the rule more vulnerable to a court challenge.
  • Six major school districts say they will stop buying poultry that is not certified antibiotic-free. The Urban School Food Alliance, which represents schools in six major cities that feed 3 million students a year, announced December 8 that it will move to buying only antibiotic-free poultry. The cities in question are New York City, Chicago, Dallas, Miami-Dade County, Los Angeles and Orlando. In addition to the requirement that chickens be given antibiotics for therapeutic purposes only, the districts will also mandate that the chickens be raised on an all-vegetarian diet and that suppliers follow the National Chicken Council’s animal welfare guidelines. The alliance has indicated that it intends to use its $530 million in annual purchasing power to drive down prices and to bring about better food quality.
  • Rejection of Oregon GMO labeling initiative survives recount. Oregon voters’ rejection of a state initiative to require labeling of foods with genetically engineered ingredients survived a mandatory recount that had been triggered by the closeness of the initial results from November 4. The recount actually increased the lead that the “no” votes had, albeit modestly. With all precincts reporting, the initiative ended up trailing by only .06 percent, or less than 850 votes.
  • Chefs meet with lawmakers to discuss federal GMO legislation. On December 2, a group of about 20 chefs – including such celebrity chefs as José Andrés, Tom Colicchio and Art Smith – met with about 60 lawmakers on Capitol Hill to gather support for federal legislation in 2015 that would require labeling of foods that contain genetically modified ingredients. Bills to that effect were introduced in the current Congress by Representative Peter DeFazio (D-OR) and Senator Barbara Boxer (D-CA) and are expected to be reintroduced next year. Representative Mike Pompeo (R-KS) introduced a related bill in the current Congress that would prohibit states from setting any GMO standards.
  • Report says advertising of unhealthy soft drinks to kids remains a problem. On November 19, the Rudd Center for Food Policy and Obesity, an affiliate of Yale University, reported that beverage companies spent $866 million in 2013 to advertise unhealthy drinks, and children and teens were among their key targets. According to the report, “companies still have a long way to go to improve their marketing practices and the nutritional quality of their products to support young people’s health.” The report, funded by the Robert Wood Johnson Foundation, said the overall level of marketing of unhealthy drinks to youth declined significantly from 2010 to 2013, but it also noted that black and Latino children see more than twice as many ads for unhealthy drinks as white children.