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

  • House committee approves law to bar states from requiring GMO labeling. On July 14, a bill that would prevent states from requiring labels on foods that contain genetically modified ingredients was approved by the Agriculture Committee of the US House of Representatives. The bill, introduced by Representative Mike Pompeo (R-KS), would ban states from adopting their own labeling laws for GMOs and would override any such laws that are already in place. It would instead give food manufacturers the option to voluntarily label their products as GMO-free. Since the bill relies on voluntary labeling rather than mandatory labeling, it faces opposition from consumer groups and from many legislators. While the bill is expected to come to a vote in the House this month, it is unclear whether the Senate will consider it. Maine, Connecticut and Vermont currently require the labeling of foods containing GMOs.
  • Whole Foods denies that its use of the term “evaporated cane juice” is misleading. In its response to a class action filed against it in the US District Court for the Eastern District of Missouri, Whole Foods said in a July 2 court filing that the term “evaporated cane juice” is not misleading because consumers “intuitively” know that the cane involved is sugar cane and that “evaporated cane juice” is a sweetener. The suit against Whole Foods, filed in April, alleged that the grocery chain used the term on products such as its Gluten Free All Natural Nutmeal Raisin Cookies to mislead consumers into thinking the products are more healthful than they are. In its 2009 Draft Industry Guidance on Evaporated Cane Juice, the FDA cautioned manufacturers that use of the term “evaporated cane juice” is “false and misleading.” After reopening the comment period for its 2009 Draft Guidance in March 2014, FDA has yet to issue final guidance, though it indicated in a recent letter to a California federal judge that it will not issue further guidance until 2016.
  • FDA will not issue further guidance on evaporated cane juice until 2016. In a July 8, 2015 letter response to a Northern District of California federal judge (filed July 13, 2015), the FDA stated that it will not issue further guidance on evaporated cane juice until 2016. Judge Edward Chen of the Northern District of California has stayed two putative class actions related to use of the term “evaporated cane juice” after FDA reopened the comment period in March 2014. Judge Chen sent a letter directly to FDA in May 2015 asking for an update on FDA’s review of the comments and whether it would be issuing the final guidance within 180 days. FDA responded that it was actively working on a final guidance, but that it could not commit to issuing a final decision within 180 days. FDA anticipates issuing a final guidance before the end of 2016.
  • Blue Bell plans to resume production of ice cream on a trial basis. On July 8, Blue Bell Creameries notified the FDA and state health officials in Alabama that it hopes to begin test production of ice cream in one of its Alabama facilities in the next several weeks. Last April, Blue Bell was forced to recall all of its ice cream because of listeria contamination that was tied to at least three deaths. Test production will go forward on a limited basis as the company strives to confirm that its new procedures, facility enhancements, and employee training have been effective. After the test period is over, Blue Bell will begin producing ice cream for the marketplace. The privately held corporation is believed to be the nation’s fourth largest manufacturer of ice cream. It laid off about 37 percent of its work force in the wake of the recall.
  • FDA extends menu labeling rules for a year. On July 9, the FDA announced a one-year extension, to December 1, 2016, of the deadline for restaurants and other food establishments to comply with federal menu labeling rules. FDA granted the extension after industry associations and senators requested additional time to implement the rule as well as further guidance from FDA for covered establishments. Specifically, requests were made for additional time to retrain staff, design new menu boards and develop software and information systems to help label menu items. FDA indicated that a more detailed draft guidance would be issued in August 2015 related to various questions on the rules. The menu labeling rule requires subject establishments – restaurant-type business with 20 or more locations – to provide calorie content clearly and conspicuously, with additional nutritional information (e.g., sodium, fat, sugar) to customers upon request. The rule at present applies to restaurants, fast food outlets, movie theaters, grocery stores, other locations selling ready-to-eat single-serving foods and vending machines. Find out more about the menu labeling rules in this DLA Piper alert.
  • In another development in this area, the recently proposed Common Sense Nutrition Disclosure Act (HR 2017) would amend the menu labeling rule to apply only to stories getting 50 percent or more of their revenue from covered food items. This would likely exempt grocery and convenience stores. HR 2017 would also deny standing for civil suits regarding violations.
  • Nestle Purina sued over alleged lack of bacon in its pet treats. On July 15, various media outlets reported that a New York consumer has sued Nestle Purina Petcare Co., alleging the company is marketing its popular Beggin’ dog treats as containing a lavish amount of bacon when the product really only has miniscule amounts of that product. The plaintiff sued Nestle Purina after buying Beggin’ treats because he believed bacon was the primary ingredient. Bacon is tenth on the list of ingredients on the product label, behind such ingredients as wheat, sugar and water. The plaintiff alleges that the “product name, Beggin,’ is designed to, and does sound virtually the same as ‘Bacon’ when spoken. The deception is complete.” This case is another in a recent line of filings related to product names and/or vignettes depicted on packaging that allegedly mislead consumers as to the actual contents of the product when comparing the name/vignettes to the products' ingredient list.