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

  • Vermont AG defends the state’s GMO statute. On August 8, the Vermont attorney general filed a motion to dismiss a case brought by food trade groups against the state’s newly enacted statute requiring GMO foods be labeled. The attorney general asserted that the statute withstands all five claims challenging its constitutionality. Among those claims, plaintiffs argue that the statute interferes with freedom of speech rights under the First Amendment and attempts to regulate interstate commerce. The case was filed in federal court in Vermont.
  • New “natural food” trade group is formed. A new trade organization has been formed with the mission of defining the meaning of the term “natural” as applied to food products. The Organic and Natural Health Alliance (ONHA) has announced its plans to define “natural” in a way that takes consumers’ views and impressions into account. The group will formally launch itself at the Supply Side West trade show in Las Vegas in October 2014.
  • Colorado to vote on GMO labeling measure. This November, Colorado voters will have the opportunity to vote on a ballot initiative that, if passed, would require companies that sell food with GMOs to label them as “Produced With Genetic Engineering.” If passed, the measure would take effect on July 1, 2016.
  • Congressional members weigh in on food labeling regulations. Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) are concerned that the FDA’s final food labeling regulations under review at the Office of Management and Budget (OMB) do not adequately reflect the intent of the Affordable Care Act (ACA). According to their letter to OMB, the FDA should expand the type of establishments subject to the regulation by including food outlets and concessions at movie theatres, amusement parks, bowling alleys and other entertainment venues. Harkin and DeLauro are also concerned that the “80/120” to be used to calculate nutritional information is too strict and should be replaced with the reasonable basis standard. The final regulations have been under review at OMB since April.
  • Stevia manufacturer agrees to settle suit over “natural” claims. On August 18, Merisant and its subsidiary Whole Earth Sweetener Co., which market the stevia product Pure Via, agreed to settle a class action alleging the companies were misleading consumers by marketing the product as “natural.” Nearly a year ago, Cargill, which markets the Truvia brand of stevia, agreed to settle a similar suit. While the Pure Via marketers will pay $1.65 million in the settlement, they do not intend to stop using the “natural” claim. This is one of hundreds of pending civil suits that challenge the use of the word “natural” by food companies.
  • Whole Foods hit by lawsuits on sugar content of yogurt. On August 1, 8, and 11, consumers sued Whole Foods in three states – Massachusetts, New Jersey and Pennsylvania – alleging the company significantly misstated the amount of sugar in its 365 Everyday Value plain Greek yogurt.Consumer Reports magazine says the yogurt contains 11.4 grams of yogurt per serving, while the company’s own tests, conducted by an outside lab, say it is only 2 grams. Whole Foods says it is looking into the discrepancy.
  • Washington Post feature alleges FDA oversight of food additives is too lax. In a lengthy feature on August 17, the Washington Post asserted that because of lax regulation by the FDA, numerous food additives are being used in foods on the market that have not been adequately vetted for their impact on human health. The article called into question the FDA’s 1997 decision to expand approval of food additives under the GRAS (Generally Recognized as Safe) program, contending that most new additives are being introduced into the food supply without rigorous scientific review of their safety.
  • USDA considers adopting federal standard for honey. The US Department of Agriculture, in a Federal Register notice on August 15, announced that it is soliciting comments on how a federal definition for honey would be in the interest of consumers, the honey industry, and US agriculture. In the notice, the proposed definition of honey is “the natural sweet substance produced by honey bees from the nectar of plants … which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in the honeycomb to ripen and mature.”