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

  • Four major companies announce voluntary GMO labeling. Four major food companies – Con Agra Foods, Kellogg’s, General Mills and Mars, Inc. – announced in mid-March that they will voluntarily label all their food products that contain GMOs. This news comes less than a week after supporters of GMO labeling in the US Senate defeated a bill that would have prohibited states from requiring the labeling of GMO products. According to some observers, the actions by these companies and others may be paving the way to an industry-supported voluntary consensus in favor of GMO labeling.
  • Vermont AG announces safe harbor policy on state’s GMO labeling law. On March 24, the Attorney General of Vermont announced the state’s new safe harbor policy regarding enforcement of its GMO labeling law, scheduled to take effect July 1, 2016. The Attorney General clarified that between July 1 and December 31, the office will not bring enforcement actions related to the labeling requirement or seek fines for products that lack the proper labeling, unless there is evidence that a manufacturer distributed a mislabeled product after July 1. As of January 1, 2017, the office will take the position that all products must bear appropriate labels, regardless of their distribution date. However, the Vermont Attorney General indicated that the state’s priority will be willful violations of the law. The Attorney General does not expect to bring enforcement actions based solely on a company’s failure to remove improperly labeled products that were distributed before July 1, 2016.
  • Politico article describes lengthy and complex battle by Michelle Obama and allies to change the way Americans eat. It all began with Michelle Obama’s concern about what her daughters were eating. In a detailed March 17 article, Politico magazine told the story of how the First Lady’s food and health initiatives, which began almost as soon as her husband was elected President, have had a major effect on the American diet. “Obama and her bulldog personal chef engineered and enacted the most aggressive food policy agenda in living memory – a modern example of how a White House spouse can use her unelected platform to wage a genuine Washington policy fight,” the article says. In addition to dramatic changes in the federal school lunch program, the article links Obama’s initiatives to massive calorie-cutting on the part of America’s largest food and beverage manufacturers, who “cut 6.4 trillion calories out of the food supply, in part by tweaking their recipes.”
  • Three manufacturers recall major brands of tuna for possible contamination. Bumble Bee Tuna, as well as Tri-Union Seafoods LLC, the manufacturer of Chicken of the Sea canned tuna, and H-E-B, which produces Hill Country Fare branded tuna sold in markets in Texas, are all voluntarily recalling some of their five-ounce canned tuna products. The recalls, announced the week of March 14, occurred after the companies discovered in routine inspections that the tuna may have been undercooked as a result of an equipment malfunction in the commercial sterilization process. The companies each said that although there have been no reported illnesses in connection with the affected tuna, the improper procedures could result in contamination by spoilage organisms and, thus, in life-threatening illnesses.
  • Judge dismisses lawsuit on bread crumb labeling. On March 17, a California federal court ruled that a woman who claimed that Kroger-brand bread crumbs were deceptively labeled as containing no trans fats can’t proceed with her potential class action lawsuit against the Cincinnati-based grocery chain. The Southern District of California found that although the plaintiff bought the bread crumbs 90 times over 15 years, she never established that her purchases were “substantially based” on the allegedly deceptive labeling. In dismissing the suit with prejudice, the court noted that the plaintiff never read the package label until this year.
  • FDA finds that two illnesses and one death resulted from raw chocolate milk. The FDA has found, through the whole genome sequencing process, that two illnesses in 2014 resulted from Listeria contamination of raw chocolate milk. One of those illnesses resulted in the death of a senior citizen in Florida. The milk in question was produced by Miller’s Organic Farm in Bird-in-Hand, Pennsylvania. On March 21, the Centers for Disease Prevention and Control reiterated its warning to consumers that they should not eat raw milk or other raw dairy products and should only consume dairy products that have been pasteurized.
  • Foodborne parasite linked to greater risk of suicide. New research published in the March issue of The Journal of Clinical Psychiatry links infection with a foodborne parasite, Toxoplasma gondii, to mental and emotional problems, including suicide. Food Safety News reports that researchers confirmed a relationship between T. gondii infection in humans and self-directed aggression – that is, suicidal behavior – and other psychiatric disorders. The T. gondii parasite is popularly associated with cats, but, in fact, the CDC says, the most frequent source of human infection is consuming undercooked meat from infected animals – especially pork, lamb and venison. The CDC calls T. gondii a “top cause” of foodborne illness in the US.
  • Two more companies phase out the use of BPA in food packaging. On March 29, in separate announcements, Del Monte Foods and the Campbell Soup Company joined other major companies phasing out the use of BPA (bisphenol A), a chemical widely used in food packaging. The FDA has stated BPA is safe for humans in the small quantities that might occur in foods, but some studies have shown possible adverse effects, including effects on the brain or prostate gland of infants and children. Beginning with Del Monte’s fresh pack production in 2016, which starts in May and runs through October, all its fruit and tomato products, as well as nearly 100 percent of vegetable products under the Del Monte brand, will convert to non-BPA linings. Campbell’s launched its non-BPA liners with its popular Chunky Classic Chicken Noodle soup in March, when it shipped 2 million cans of soup with the new liners. By mid-2017, it plans to have moved its entire product line – more than 600 recipes and nearly 2 billion cans a year – to non-BPA liners.
  • Pro-soda-tax group attempts to expand its successes beyond Berkeley. A group in Berkeley, California, that successfully obtained a soda tax approval in that city in 2014 is trying to expand its reach to other cities. The Ecology Center has created a 13-minute online video that explains how soda tax advocates won approval of the tax, known as Measure D, and is distributing the film widely to state, local and national groups. According to the group, the CDC says that half of Latino and African American youth will get diabetes in their lifetime, and studies show that ingesting one serving of sugar-sweetened beverages daily significantly increases the risk of type 2 diabetes. Lauren Kane, a spokeswoman for the American Beverage Association, replied, “Elsewhere, soda tax proposals have been rejected 40 times across the country in the past eight years. Beverage taxes remain highly unpopular because the majority of Americans oppose discriminatory taxes that single out one item in the grocery cart.”
  • HHS Secretary urges Combatting Antibiotic-Resistant Bacteria panel to act. HHS Secretary Sylvia M. Burwell on March 30 advised the Presidential Advisory Council on Combatting Antibiotic-Resistant Bacteria that she expected it to answer two key questions during its meetings on March 30-31 in Washington, DC: how should the US government prioritize its investments to maximize impact in reducing antibiotic resistance? And what is the best way to incentivize the development of new therapeutics? The council was formed a year ago to tackle the rise in antibiotic resistant infections. The CDC reports that the US sees more than 2 million antibiotic-resistant infections every year, including many caused by foodborne pathogens.
  • FDA’s right to approve genetically modified animals as food is challenged. A coalition of environmental, consumer and recreational fishing organizations is suing the FDA in the Northern District of California, charging that when the agency approved a genetically modified salmon as fit for human consumption, it overstepped its authority. George Kimbrell, senior attorney for the Center for Food Safety, said, “FDA’s decision is as unlawful as it is irresponsible.” In 2015, the FDA approved the engineered fish under a provision of the 1938 Federal Food, Drug, and Cosmetic Act. The Wall Street Journal notes that AquaBounty, the company that developed AquAdvantage salmon, has downplayed the possibility its fish could escape and interbreed with wild fish – one of the environmental risks cited in the suit. “This case is about protecting our fisheries and ocean ecosystems,” Kimbrell added. “But it’s also about the future of our food: FDA should not, and cannot, responsibly regulate this GE animal, nor any future GE animals, by treating them as drugs under a 1938 law.” Other genetically engineered animals are being crafted for human consumption, among them a carp being developed in China and tilapia being developed in Cuba.