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

  • Blue Bell resumes ice cream production in Alabama. The Alabama Department of Public Health on August 6 said that Blue Bell Creameries may resume producing and selling ice cream made in its Sylacauga plant. The company has demonstrated to state inspectors that it is meeting all state public health requirements. In April, Blue Bell recalled all of its ice cream and shuttered its three plants because of listeria contamination linked to at least 10 illnesses and three deaths. The company is still striving to bring its plants in Oklahoma and Texas back on line in keeping with agreements with health officials in those states. The privately held corporation is believed to be the nation’s fourth largest manufacturer of ice cream.
  • GMA petitions FDA on partially hydrogenated oils. Earlier this year, the FDA announced that it no longer recognizes partially hydrogenated oils (PHOs) as safe for use in foodstuffs, reclassifying PHOs as a “food additive” but adding that the industry could file food additive petitions in cases where “industry or other interested individuals believe that safe conditions of use may be prescribed.” On August 5, the Grocery Manufacturers Association announced that it had petitioned the FDA to approve using PHOs in low levels in food. It said appropriate uses at very low levels could include using PHOs as color and flavor carriers and as a way to deliver textures that other oils cannot provide, such as flakiness in dough. The GMA petition stated, “GMA’s position remains that PHOs are generally recognized as safe on the basis of their common use in foods for decades.”
  • Push to ban sale of powdered caffeine. Calling it a “deadly product,” Senator Sherrod Brown (D-OH) on August 5 led a group of Democratic senators urging the FDA to ban the online sale of powdered caffeine. Pure and highly concentrated caffeine is sold online as a dietary supplement. The Center for Science in the Public Interest, citing deaths from caffeine powder overdoses, last year petitioned the US Department of Health and Human Services to ban its sale in bulk and called on the FDA and HHS to ban its retail distribution and to set limits on strength, serving size and labeling to cut the risk of accidental overdose. In December, the FDA suggested it is considering halting online sales of powdered caffeine, but it has not acted.
  • Idaho ag-gag law found unconstitutional. A federal court on August 3 struck down Idaho’s ban on secretly recording videos at factory farms. The court stated that in passing the law, state legislators unconstitutionally criminalized free speech “to protect industrial animal agriculture by silencing its critics.” This is the first time a so-called “ag-gag” law has been struck down. The Idaho law – a response to whistleblowers’ graphic undercover videos of abusive practices – made it a misdemeanor, punishable by up to a year in prison plus damages that would have included paying publication damages for double the economic loss suffered by a business as a result of a video – to surreptitiously film in an agricultural facility or to misrepresent one’s identity to gain entrance to an agricultural facility. The court commented that agricultural facility operations that affect food and worker safety are not exclusively private but are “matters of public concern,” and added that “laws against trespass, fraud, theft and defamation already exist.” The suit was brought by a coalition of civil liberties advocates, journalists and animal rights activists. Seven other states have ag-gag laws, including Iowa, Kansas, Missouri, Montana, North Carolina, North Dakota and Utah.
  • FDA seeks information on manufacture of cheeses from unpasteurized milk. On August 3, the FDA formally requested comments from the public to assist the agency in identifying and evaluating measures that might minimize the impact of harmful bacteria in cheeses made from unpasteurized milk. Saying it is concerned about possible health risks, such as Listeriosis, associated with the consumption of such cheeses, the FDA said it wants to learn more about the manufacturing techniques used by cheese makers today, including manufacturers of artisanal cheeses. The comment period is open for 90 days after the notice.
  • ConAgra removes BPA from cans made in the US and Canada. On July 30, ConAgra Foods announced that it has removed BPA from all of its cans manufactured in the US and Canada. BPA is used as a liner to coat the inside of metal cans. Concerns have been raised about BPA’s health effects, although the FDA has found it safe for human consumption at low levels. Some imported ConAgra cans will continue to use BPA, but the company said it is working with the suppliers to convert to other can liners by early 2016.
  • CSPI endorses New York City proposed salt disclosure on menus. On July 29, the Center for Science in the Public Interest endorsed New York City’s proposal to require warning icons on chain restaurant menus next to items with a tablespoon or more of salt. The proposal would make New York City the first jurisdiction to impose such a requirement. City officials are concerned that excess sodium in the diet promotes high blood pressure, stroke and heart disease. If the city Board of Health approves the measure, it could go into effect as soon as December 2015.
  • Confectioners group opposes labeling requirement for added sugars. The National Confectioners Association has taken a position against the FDA’s current proposal to place percentage daily values for added sugar on food labels. The Confectioners Association says that this change would be unnecessary and may confuse consumers. The FDA has proposed that 12 teaspoons of added sugar per day should become the basis for a daily value that appears on the Nutrition Facts portion of a food label. The Center for Science in the Public Interest says this would be “a major public health victory that would greatly benefit consumers.” The vice president for public affairs of the Confectioners Association said in a July 28 interview, however, that since science shows that the human body does not distinguish added sugars from naturally occurring sugars, any additional labeling requirements in this area concerning “added sugar” would only cause confusion.
  • Would tough sentences in food contamination cases backfire? According to a July 26 commentary article in the National Law Journal’s Litigation Daily, the current effort to impose very substantial sentences on peanut company executives who sold products that were contaminated with salmonella may backfire. These penalties may actually have an ultimately detrimental effect on food safety, writes commentator and longtime journalist Jenna Greene. This is because food executives “will be afraid to issue broad-based voluntary recalls – and virtually all recalls are voluntary – if it means they could spend the rest of their lives in prison.” Greene writes that although this type of sentence would send “an unequivocal message that food safety matters,” this outcome “doesn’t seem likely to lead to safer food.” Sentencing in US v. Parnell is set for Sept. 21 before US District Judge W. Louis Sands in the Middle District of Georgia.
  • Soda trade group sues San Francisco in federal court over warning labels. The American Beverage Association, the leading US trade group for soft drinks, sued the city of San Francisco in US District Court for the Northern District of California on July 24, alleging that the city’s new mandatory warning labels on sugary-soda advertisements violate the First Amendment. The new regulations are set to take effect in July 2016. The complaint says that the city “is trying to ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public ‘dialogue’ on the topic – in violation of the First Amendment.” The warning label, one of the toughest in the nation, reads, “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.” The city has not yet responded to the complaint.
  • House passes bill prohibiting states from imposing labeling requirements concerning GMOs. On July 23, the US House of Representatives, by a substantial margin, passed a piece of hotly contested legislation that would prohibit states from approving mandatory labeling laws for foods containing genetically modified organisms (GMOs). The Safe and Accurate Food Labeling Act of 2015, which passed the House by 275-150, would instead create a federal standard for the voluntary labeling of foods with GMO ingredients. Proponents say the legislation would establish a uniform nationwide approach to the labeling of foods containing GMO ingredients, while opponents assert that the bill would deny consumers the right to know what is in their food. Opponents refer to the bill as the Denying Americans the Right to Know Act. Prospects of passage in the US Senate are uncertain.
  • Most Iowa egg farms continue to regroup after bird flu epidemic. Don’t expect egg prices to decline any time soon. In the wake of this spring and summer’s major egg shortage and spike in egg prices caused by bird flu, the Iowa Department of Agriculture reported that most of the 77 farms in that state that were affected by the disease are still weeks away from introducing new flocks of chickens. Iowa is the nation’s largest egg producer, and the bird flu outbreak killed 31.5 million turkeys and chickens there. Although the last reported case of the disease occurred in late June, the department said on July 23 that the process of disinfection is still continuing on most Iowa chicken farms. The USDA reported that in June egg production in Iowa declined by 44 percent from the previous year and egg production nationwide declined by nine percent.