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

  • WHO announces support for taxes on sugary drinks. The World Health Organization recently took a formal position in favor of the levying of taxes on sugary beverages as a public health measure to reduce obesity and the associated diseases. It concluded “there is reasonable and increasing evidence that appropriately designed taxes on sugar sweetened beverages would result in proportional reductions in consumption, especially if aimed at raising the retail price by 20 percent or more. There is similar strong evidence that subsidies for fresh fruits and vegetables that reduce prices by 10–30 percent are effective in increasing fruit and vegetable consumption.” The finding will lend credence to efforts in localities throughout the United States to legislate such taxes. On October 11, the nonprofit Center for Science in the Public Interest endorsed the WHO recommendation and said that voters in local November 2016 elections should be aware of what it termed “Big Soda’s tidal wave of misleading advertising, calling the proposed soda taxes ‘grocery taxes.’”
  • Meanwhile, in Chicago. On October 13, Toni Preckwinkle, Cook County Board president, proposed a penny-per-ounce soda tax as part of the 2017 budget. If approved, the tax “would generate a projected $74 million in 2017, and about $150 million a year after that,” reported the CBS news affiliate in Chicago, adding, “However, it could be a tough sell to Chicago taxpayers,” who are already facing an array of other tax increases and already pay the highest sales tax in the US. See some of our earlier coverage of related stories here.
  • Judge dismisses claim of undue industry influence on nutrition policy. A federal magistrate judge on October 12 dismissed a lawsuit filed by the nonprofit Physicians Committee for Responsible Medicine alleging too much industry influence on federal nutrition policy. The lawsuit pointed to instances such as an egg-industry representative sitting on the federal Dietary Guidelines Advisory Committee (DGAC), a panel that puts forth official government recommendations concerning Americans’ diets. The lawsuit contended that the DGAC thus violated the Federal Advisory Committee Act, which declares that such advisory committees “will not be inappropriately influenced by the appointing authority or any special interest.” However, the Northern District of California ruled that there are no legally enforceable guidelines for determining how much industry influence is too much and thus that the complaint must be dismissed as non-justiciable. Since Congress has set forth “no meaningful standard” to judge such influence, the court ruled, it therefore lacked jurisdiction to rule on the complaint.
  • EPA postpones its review of the safety of glyphosate. The EPA on October 17 postponed its scientific review of the carcinogenicity of glyphosate. The agency recently named nine members to serve on a scientific advisory panel that was scheduled to meet next week to discuss the herbicide, which is the active ingredient in Monsanto’s Roundup. The review of the chemical’s human health impact is a key part of the registration process under the Federal Insecticide, Fungicide, and Rodenticide Act. The EPA said it is postponing the meeting “due to recent changes in the availability of experts for the peer review panel. Given the importance of epidemiology in the review of glyphosate’s carcinogenic potential, the agency believes that additional expertise in epidemiology will benefit the panel and allow for a more robust review of the data.” The review will take place later in 2016.
  • Appeals court reverses lower-court ruling, permits “All Natural” case against Dole to proceed but affirms decertified class. On September 30, the US Court of Appeals for the Ninth Circuit reversed a US District Court’s denial of class certification in a case that alleges Dole’s use of the phrase “All Natural Fruit” on some of its products is misleading under California state law. The plaintiff says the fact that the fruit products contain synthetic citric and ascorbic acids means they are not “All Natural.” Citric and ascorbic acids are naturally found in fruit, but they are also manufactured on a large scale in chemical and microbial processes. Dole asserted that the term on the label was meant to apply to the fruit used in the products, not to all ingredients in the products. The Ninth Circuit found that the evidence, including the label, the plaintiff’s testimony, consumer surveys, the FDA’s nonbinding policy on the use of the word “natural,” and FDA warning letters, could allow a jury to conclude that the label is misleading to a reasonable consumer. In this unpublished ruling, the court resurrected the four-year-old lawsuit and held that the plaintiff could seek injunctive relief on behalf of the class. Notably, the Ninth Circuit also affirmed decertification of plaintiff’s damages class on the grounds plaintiff’s damages model was insufficient.
  • CSPI issues low grades to Americans on their daily diets. Providing a “report card” on the typical American diet for the first time in three years, the nonprofit Center for Science in the Public Interest concluded that when it comes to selecting healthy foods and maintaining a balanced diets, Americans could be doing much better. On September 29, the group’s nutrition director, Bonnie Liebman, wrote that “it’s clear that Americans aren’t now following, nor have they ever followed, the advice dished out by the Dietary Guidelines for Americans and other health authorities. Americans are eating the diet recommended by food manufacturers and restaurants’ marketing departments, which encourage overconsumption of everything except for fruits and vegetables.” The average American, CSPI said, consumes 2,500 calories per day, up from 2,000 in the 1970s. The report singled out excessive consumption of beef and of sugary soft drinks as qualifying for a “D+” grade, the poorest one that was given.
  • Animal industry group criticizes recommendation on “judicious” use of veterinary antibiotics. The Animal Agriculture Alliance has criticized a report issued October 4 by the nonprofit Pew Charitable Trusts which argued that the FDA’s current steps for reviewing the labels on animal drugs, such as antibiotics, were inadequate. The Pew report said about one in three of the labels for these drugs do not meet FDA standards under the agency’s new rule on the matter, which will take effect on January 1, 2017. The standards aim to ensure “judicious use” of antibiotics in a way that will improve animal health without encouraging the rise of drug-resistant bacteria. The Animal Agricultural Alliance said the FDA’s guidance is adequate as it stands and that the additional steps recommended by Pew could prevent veterinarians and farmers from treating sick animals. It said that it’s inappropriate to question vets’ judgment on how to properly treat animals.
  • California law restores to its counties the right to regulate the growing of GM crops. On September 13, California Governor Jerry Brown signed into law a state bill repealing a previous law that had prohibited any California county from regulating the growing of GM products without the consent of the state agriculture secretary. Opponents of the law that was repealed said it improperly removed the appropriate role of the counties in the democratic process and that it interfered with the rights of farmers who want to grow non-GM crops, because pollen from nearby GM farms would contaminate their fields. The state law in California was unaffected by the federal law passed earlier this year on GM labeling. That federal law preempts states and counties from enacting any regulation relating to the labeling of genetically engineered seeds in interstate commerce, but it has no effect on counties’ regulation of the cultivation or planting of GM seeds within their jurisdictions.