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

  • What impact will the listing of glyphosate under Prop 65 have on food companies? On July 7, glyphosate, the active ingredient in common herbicides, was added to California's Prop 65 list. This means that starting in July 2018, Prop 65 warning labels will be required in California on products that may contain glyphosate. According to Food Navigator, the effect on companies that sell packaged foods that might contain trace levels of glyphosate residue is unclear. A California state regulatory official has said the state has proposed, and intends to finalize, a threshold amount of 1,100 micrograms, and that food companies should be able to rely on this safe harbor.
  • Schumer calls for FDA investigation of "snortable chocolate." Senator Charles Schumer (D-NY) wrote a letter to the FDA on July 8 asking federal regulators to investigate a product he called "snortable chocolate" to determine whether it should be regulated as a drug. Schumer said the product, Coco Loko, is composed of raw cacao powder infused with a "special energy blend" and has proven popular with teens. "I can't think of a single parent who thinks it is a good idea for their children to be snorting over-the-counter stimulants up their noses," Schumer said in the letter. "This suspect product has no clear health value." The company's website says that the product triggers "a steady rush of euphoric energy and motivation that is great for party goers to dance the night away without a crash. It is even used by athletes to give them the natural competitive edge."
  • USDA sets forth target dates for GMO disclosure rule. The USDA has announced that it plans to set forth a draft of its new rule on the labeling of genetically modified organisms in the fall of this year and that it is "working hard to meet the schedule in order to issue a final rule on the law in July 2018." In addition, a USDA spokesperson said that a study by Deloitte on the feasibility of using electronic means, such as QR codes, to make the congressionally required disclosures will be completed and delivered by July 28.
  • Senator seeks labeling requirement for GM salmon. On July 11, Senator Lisa Murkowski, an Alaska Republican, reintroduced a bill that would require that genetically modified salmon be labeled as such. Alaska is known for the harvesting of wild salmon, and Murkowski has referred to genetically modified salmon as "Frankenfish." The disclosure law passed last year by Congress for GMO food products, Murkowski says, does not fully satisfy her concerns on the labeling of salmon. The bill would also require the Secretary of Health and Human Services to obtain a third-party independent scientific review of the FDA's environmental assessment for genetically modified fish. See our earlier coverage of FDA approval of GM animals here and here.
  • The face of foodborne disease is changing. Emerging pathogens are reaching ever more deeply into daily life, a panel of expert scientists said during the International Association for Food Protection conference on July 12 in Tampa. Food Safety News reports that the speakers – Rosa Pinto of the University of Barcelona, Richard Bradbury of the CDC and Doriliz De Leon of the FDA – said new foodborne threats are expanding their ranges and "are leaving few places to escape in an ever smaller world." Foodborne Hepatitis A, for instance, once accounted for 4 percent of all Hep A cases; now the figure is 20 percent. The experts also pointed to such parasites as Cyclospora – since 2012, the cause of annual outbreaks traced to cilantro from Puebla, Mexico – and Anisakiasis, a worm transmitted via infected shrimp or fish, which often needs to be removed surgically. The speakers' message was optimistic: protections under the Food Safety Modernization Act, they said, will help the FDA better shield American consumers, and they noted a greater willingness on the part of companies and food safety agencies to address foodborne risks.
  • FDA expands funding to help states implement Produce Safety Rule. To forward the FDA's implementation of the Food Safety Modernization Act's Produce Safety Rule, the agency is giving 43 US states and territories nearly $31 million. The funding, announced on July 19 by Barbara P. Glenn, CEO of the National Association of State Departments of Agriculture, is a significant expansion beyond 2016 funding levels of about $20 million. "Congress envisioned the states and FDA working together as an integrated food safety system when it passed FSMA," Dr. Glenn stated. "Congress' commitment to fund FDA and FDA pointing the funds to the states is an important milestone." The Produce Safety Rule establishes science-based minimum standards for safe production and harvesting of fresh fruits and vegetables. Large growers will need to comply with the rule starting in January 2018; smaller producers will receive additional time.
  • What is "milk"? Even the federal government is divided. As the regulatory wars between manufacturers of dairy milk and makers of plant-based beverages continue, the Associated Press reported July 3 that even the federal government is itself divided about the proper name for products like soy milk. USDA, the report said, prefers to use the common terms "soy milk" or "almond milk" in educational materials for the public, while the FDA, at least in internal documents, points to the legal definition of "milk" as a "lacteal secretion" from cows. The dairy industry and members of Congress from dairy regions have formally asked the FDA to term nondairy "milk" as misbranded because it does not meet the legal definition.