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

  • Four cities will hold referendums this month on taxes on sugary beverages. Looking forward to Election Day, an October 17 survey by PBS NewsHour noted that voters in three California cities and one Colorado city will vote on whether to slap a special tax on sugary drinks such as sodas and sports beverages. In all the localities, costly high-stakes campaigns are pitting health advocates against the beverage and grocery industries. The upcoming votes in San Francisco, Oakland and Albany, California, and Boulder, Colorado, come in the wake of a penny-an-ounce soda tax in Berkeley, California, that took effect last year and a 1.5 cents-an-ounce tax in Philadelphia that is slated to take effect in January 2017. See another recent story about this issue here.
  • FDA receives public comments on use of term “healthy.” A review of public comments the FDA has received on the use of the word “healthy” shows that many commenters view the meaning of the term as a complex issue. The commenters are focusing not so much on a food's level of fat, calories, or added sugar but on whether the food contains GMOs, is sustainable, or contains artificial ingredients. Many commenters also said that the word “healthy” is inherently subjective and should not be allowed as a food claim at all, and many said the term is valuable to consumers only when used in describing an entire diet rather than a single product. The deadline for submission of comments on the term is January 26, 2017. See some of our earlier coverage of this issue.
  • Mars agrees not to use nanoparticles in its products. In response to a letter from the nonprofit Center for Food Safety, on October 27, Mars, Inc., the maker of M&Ms and the top-selling candy company in the world, reiterated its commitment to remove nanoparticles of titanium dioxide from its food products, including many of its most popular candies. Nanomaterials are very small, highly reactive particles of a substance that some say may pose serious and unanticipated health problems. “Studies have shown that the human health risks associated with ingesting nanoparticles of many common food additives far outweigh any utility for producers,” the center said in a statement. Kraft, Dunkin' Donuts and McDonald's have all committed in the past not to use nanoparticles in their products.
  • Nationwide recall for Oreos. Original and mint flavor Oreo Fudge Cremes cookies became the subject of a nationwide recall October 28 for failure to label a key allergen. Oreos contain milk, a known allergen, but milk was not declared on the labels of the cookies as required by law. Only one allergic reaction had been reported in the US or its territories as of the time of the recall. People with an allergy or severe sensitivity to milk run the risk of a serious or life-threatening allergic reaction if they eat the cookies.
  • EPA approves mixture of two herbicides, finds no additional health risks. After nearly a year reviewing data on the possible negative health effects of mixing two herbicides – glyphosate and 2, 4-D – the EPA on November 1 announced it has found no increased toxicity in combining the two products. The EPA therefore has declared it legal to use the combined product in 19 additional states and to spray it on cotton crops. The combination, sold by Dow AgroSciences under the trade name Enlist Duo, has been permitted to be used in 15 states and on genetically engineered corn and soybeans. The agency approved Enlist Duo in October 2014 but withdrew the registration to allow additional review of its possible toxicity.
  • Three GM potatoes move ahead in regulatory process. The USDA has approved commercial planting of three varieties of GM potatoes that have been altered to resist Phytophthora infestans, the pathogen that causes “late blight,” which led to the Irish potato famine. The varieties also feature enhanced storage capacity and reduced browning and bruising, and, AP reports, also have a lower amount of a potential carcinogen created when potatoes are cooked at high temperatures. Two of the potatoes were engineered by the Simplot Co. of Boise, Idaho, creator of the Innate potato, which was deregulated for sale in 2015; the third was created by New Brighton, Minnesota-based Calyxt. All three of the potato varieties only contain potato genes. In the Simplot potatoes, the late blight-resistant gene originates in an Argentinian potato with a natural defense. The three varieties are not shelf ready yet. Next, they must clear the FDA’s voluntary review process and obtain EPA approval.
  • Constitutionality of ag-gag laws under fire. The constitutionality of Utah's “ag-gag” law has been on the US District Court for the District of Utah docket since July 2013. Oral arguments were heard the week of October 24, 2016, and this week some outlets are suggesting that the court may be close to issuing its decision. Ag-gag laws – which aim to curb the undercover work of animal activists – are on the books in eight states, and several are facing challenges. The ag-gag law in Iowa was struck down in 2015 on constitutional grounds; Idaho's version was also struck down in a federal court, but Idaho Attorney General Lawrence G. Wasden has filed an appeal on that decision to the Ninth Circuit. A similar law in North Carolina is also currently being challenged.
  • GMA files comments on FDA's proposed sodium guidance. The Grocery Manufacturers Association, in formal comments filed with the FDA on October 17 concerning the FDA's announced short-term voluntary sodium reduction goals, said the two-year period set by the FDA to achieve such reductions doesn’t provide companies with enough time. The GMA also asked the agency to change the wording of its sodium guidance to avoid “a wave of frivolous litigation.” The GMA said that reformulating food products to retain the useful functions of sodium while reducing the overall amount of sodium would take at least four years. The GMA also urged the FDA to subdivide food categories differently, taking into account the varying functions of sodium in each of the products in the category, and then to seek additional public comment. For example, the GMA said, existing categories such as “nuts and seeds” or “processed cheeses” are actually composed of a variety of products that require and use sodium in distinctly different ways.
  • Dietary-supplement executive says new registry will be important step in transparency. Bill Frankos, Herbalife's senior vice president for global product science, said in an interview on October 21 that the soon-to-be-launched OWL (Online Wellness Library) for food supplements will be very important in offering transparency and rebuilding consumer trust in supplements. The OWL, a user-friendly database of dietary supplements, is being developed by the Council for Responsible Nutrition, a dietary-supplement industry trade group, to give consumers accurate information. Nine supplement manufacturers are now beta-testing the OWL program, which is being administered by Underwriters Laboratory. CRN has made participation in the database a condition of membership in the association. “It was clear to us, given all of the negative media, that we needed to provide a place where consumers could go for accurate and up-to-date information,” Frankos said.
  • Los Angeles schools reinstate flavored milk on a limited basis. On October 18, the Los Angeles Unified School District, reversing a five-year-old policy, voted to permit some of its schools to offer students flavored milk, such as chocolate or strawberry milk. The board approved a pilot program that will study the effects of reintroducing flavored milk in a small group of schools, all of which must volunteer to take part in the experiment. With more than 650,000 students, Los Angeles is the nation's second-largest public school district n. Under the plan, 21 schools would be treated as behavioral science laboratories to see whether students would be more likely to accept regular milk if sugary varieties were also offered, and to explore other issues of student preference. Board members said that although plain milk is more healthful than flavored milk, students were rejecting plain milk, leading to tremendous waste – more than 600 tons per day going to landfill. Five years ago, parents and health advocates had lobbied for the ban on flavored milk, contending that it raised the risk of childhood obesity and other illnesses.
  • Popcorn maker agrees to stop using insecticide that is harmful to bees. On October 3, the nonprofit Center for Food Safety (CFS) lauded the recent decision by Preferred Popcorn, a farmer-owned company that provides popcorn to popular brands and movie theaters, to remove certain insecticides from its supply chain. The most widely used class of insecticides for popcorn, neonicotinoids, popularly known as neonics, is now regarded as harmful to bees and to the environment in general. A year ago, CFS launched a campaign calling on popcorn makers to discontinue the use of neonics. Preferred Popcorn is the third manufacturer to agree to stop using these insecticides. “The momentum has continued to grow over the past year, and we're now happy to applaud Preferred for not only agreeing to completely remove neonics from their supply chain by 2017, but also for their leadership in launching the addition of a certified organic popcorn line to their inventory,” CFS said.
  • Hormel denies allegations in class action that its “All Natural” claim is misleading. Hormel, the food company known for its deli meats and snacks, responded to a class action about its allegedly misleading “All Natural” claims by saying its products are not mislabeled in any way. “We stand behind Hormel Natural Choice products 100 percent,” a Hormel spokesperson said. “Hormel Natural Choice deli meats are minimally processed and contain no artificial ingredients or preservatives, in accordance with USDA requirements, and that's clearly stated on the package. We are confident that this lawsuit is without merit.” The class action against Hormel, filed in the US District Court for the Southern District of Florida on October 11, claims that Hormel manufactures products with cultured celery powder and baking powder and then improperly labels these foods as “100% Natural” and “no preservatives.” In fact, the complaint states, the products contain such synthetic ingredients as monocalcium phosphate, sodium acid pyrophosphate, and sodium aluminum sulfate, and these ingredients are not acceptable in an “All Natural” food.
  • Supreme Court may consider DeCoster egg sentencing. In July, the Eighth US Circuit Court of Appeals upheld the three-month jail sentences of father and son Austin “Jack” DeCoster and Peter DeCoster for misdemeanor food safety violations at Quality Egg, their Iowa-based egg production company; Food Safety News reports that the DeCosters pled guilty as “responsible corporate officials” for allowing salmonella-adulterated food from their egg production businesses to enter interstate commerce. The DeCosters have appealed their sentences, saying they had no personal knowledge of the violations at the time they occurred. Now the United States Supreme Court is deciding whether it wishes to hear their petition. Pending the disposition, the Court of Appeals has put its ruling against the DeCosters on hold. The DeCosters' conduct, federal investigators charged, caused a massive nationwide salmonella outbreak in 2010 which sickened more than 1,900 people across the US and led to the recall of 550 million eggs.