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

  • Kellogg will voluntarily label its GMO-containing products. On March 23, Kellogg Corp. became the latest major food manufacturer to announce that it plans to voluntarily label those products that it sells that contain GMOs. The announcement comes about three months before a first-of-its-kind GMO-labeling statute becomes effective in Vermont. “At our core, Kellogg believes in transparency and that people should know what’s in their food and where it comes from,” said Paul Norman, president of Kellogg North America, in a statement. “As a company that sells food in every state, we know that an inconsistent patchwork of labeling laws like the one that goes into effect July 1 in the State of Vermont is confusing and will increase grocery costs for American families and our business.” This year, Campbell Soup, General Mills and Mars have all announced decisions to provide GMO labeling.
  • Senate continues to deadlock over GMO labeling legislation amidst lobbying efforts. On April 12, Politico reported that biotech industry representatives were set to visit Capitol Hill that day to discuss GMO labeling issues with leaders of the Senate Agriculture Committee. Some US senators are trying to reach a deal on how best to block Vermont’s mandatory GMO labeling law from taking effect on July 1. Although the US House of Representatives has passed a bill removing states’ authority to legislate in the area and creating a uniform federal standard for GMO labeling, the measure has stalled in the Senate. Committee Chairman Pat Roberts (R-KS) supports a measure similar to the House-passed bill, while ranking minority member Debbie Stabenow (D-MI) wants to retain states’ power to approve labeling requirements. Republicans are hoping to convince a small group of Senate Democrats to permit Senate consideration of the bill that would preempt Vermont’s law. See earlier coverage of the Congressional efforts here.
  • Blue Bell remains uncertain of precise causes of contamination a year ago. Blue Bell Creameries LP told federal inspectors on April 3 that although it now has in place a set of procedures to prevent Listeria contamination, it still doesn’t know precisely how that bacteria contaminated its Brenham, Texas, plant nearly a year ago. The company recalled all of its frozen desserts from grocery stores last April and nearly went out of business before resuming sales in August. “We identified and implemented specific corrective actions to address the likely source, and adopted comprehensive facility-programs to enhance our overall ability to confront any possible sources of contamination,” Blue Bell spokesman Joe Robertson said. The company did conclude that contamination at its Broken Arrow, Oklahoma, facility was probably due to a drainage system that likely carried Listeria into a storage room housing equipment for use in food production.
  • FDA proposes standard for inorganic arsenic in children’s rice cereal. The FDA is seeking public comment on the possibility of setting a maximum allowable limit for inorganic arsenic in rice cereals for infants and toddlers. Inorganic arsenic can cause neurological and developmental problems in young children. The FDA’s new draft guidance, announced April 1, would set a limit or “action level” of 100 parts per billion for the cereals. The FDA said the standard would be parallel to the level set by the European Commission for rice intended for the production of food for infants and young children. Relative to body weight, the FDA said, the consumption of rice by infants is about three times as great as it is for adults.
  • Will FDA soon propose voluntary reductions in the sodium content of food? Politico reports that the FDA may soon tackle the issue of reducing Americans’ sodium intake. Food companies and advocacy groups have been waiting since the start of the Obama Administration for the agency to come up with voluntary sodium reduction targets. Politico reported April 3 that such targets, for sodium in processed foods, from soup to potato chips, are expected to be released as early as this summer. Although these targets would not be mandatory, some food producers are concerned about the idea of governmental pressure to reduce the use of salt, an ingredient that gives processed foods such as breads, crackers and sauces much of their taste.
  • Sugar is making a comeback in the market as a more natural, less processed food. The Wall Street Journal reported on March 30 that many food companies, noticing new consumer resistance to artificial sweeteners and to high-fructose corn syrup, are touting the fact that their products are made with sugar. Many products now list “cane sugar,” “real sugar,” or “bagged sugar from cane” as ingredients, in an effort to convey the idea that their product has undergone minimal processing and is made from ingredients that can be found in a home kitchen. Sales in the United States of sugar labeled “organic” rose 15 percent for the year ending February 20, 2016, according to market-research firm Nielsen, while sales of sugar labeled “natural” rose 10.5 percent.
  • FDA moves to revoke approval of a veterinary drug used in pigs. On April 13, the FDA’s Center for Veterinary Medicine filed a Notice of Opportunity for Hearing regarding the antibiotic carbadox – a critical step in revoking the approval of the drug’s use in the US. Carbadox, used to control swine dysentery and bacterial enteritis as well as to promote weight gain, leaves behind a residue that has been linked to cancer in humans. The drug was approved by the FDA in 1972 and has been used in the US since then. Its manufacturer, Phibro Animal Health, says the drug is safe, but FDA reports that the company has not submitted any proof that there is a safe way to use it. Chemistry World notes that carbadox has been banned in the EU since 1999 and in Canada since 2004, and is not permitted for use on food-producing animals in Australia. In 2014, the Codex Alimentarius Commission – the main global body advising the UN and World Health Organization – concluded “there is no safe level of residues of carbadox or its metabolites in food that represents an acceptable risk to consumers.”
  • Industry publication report: in today’s food world, transparency is key. The lead story in the current issue of Food Processing magazine, published online on April 11, concludes that in today’s economic and social environment, what consumers are primarily looking for from the food industry, more than just the concepts of “organic” or “natural” foods, is transparency. In a survey of food and beverage industry thinking, Lauren Hartman, product development editor, writes that among the best and most effective practices today are companies encouraging “consumers’ ability to engage a food company by asking questions through a company website and receiving straight answers in a timely fashion,” “offering the results of third-party audits publicly,” and offering information “in easy-to-understand language.” According to current consumer surveys, she says, “replacing artificial ingredients with clean ingredients is just the beginning. Food companies realize this is heading to a new level of communication.” The article concludes by quoting Charlie Arnot, CEO of the Center for Food Integrity: “Simply put, if you increase transparency, you will increase trust. Authentic transparency can transform relationships that have been tarnished by suspicion and reduce the fear of the unknown.”