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

FDA will enforce new rule requiring food traceability. As of November 7, the FDA will enforce a strict new food traceability rule. The rule applies to high-risk foods such as cheeses other than hard cheese, crustaceans, cucumbers, finfish, fresh herbs, fresh-cut fruits and vegetables, leafy greens, melons, mollusks, nut butters, peppers, ready-to-eat deli salads, shell eggs from domesticated hens, sprouts, tomatoes, and tropical tree fruits. The rule requires a detailed account of the food’s origins and movements throughout production, processing, and shipping, even as these foods are transformed into other food products or as other foods are added to them. The article pointed out that barcode data systems can offer solutions that trace product origins and destinations from end to end to help compliance with the rule.

Additional funding announced for food security programs in isolated northern communities. Canada’s Minister of Northern Affairs has announced a total of $143.4 million in federal funding over the next two years to expand Nutrition North Canada, a federal government program which helps eligible northern and isolated communities in addressing food security issues. In addition to other programs, the funding will continue food subsidies that were implemented at the beginning of the COVID-19 pandemic and improve financial assistance to food banks and other charities serving remote locations. Funding will also be allocated to projects designed in collaboration with Indigenous partners which are focused on local and Indigenous food production, in an effort to improve local food sovereignty and reduce food insecurity.

USDA approves new genetically modified purple tomato. On September 6, Norfolk Plant Sciences, a British company, received approval from the USDA, after a 14-year application process, to market a genetically modified purple tomato. The company says the tomato is high in anthocyanins, which are compounds that are associated with health benefits and are central in an anti-inflammatory diet. “With respect to Norfolk Plant Sciences’ purple tomato, we did not identify any plausible pathways to increased plant pest risk compared to other cultivated tomatoes and issued a response letter indicating the plant is not subject to regulation,” the USDA wrote. This was the first such response the department has issued under its revised biotechnology regulations. The company said that the approval will help it “find ways of commercializing its research into foods with enhanced healthy compounds for consumers.”

FDA marks observance of National Food Safety Education Month. On September 1, the FDA announced that September 2022 is the nation’s 24th National Food Safety Education Month. September, the agency said, is a time for health educators at the national, state, and local levels to focus attention on the fundamentals of buying, storing, preparing, and serving food as safely as possible. It noted that while the United States has one of the safest food supplies in the world, each year an estimated one in six Americans gets a foodborne illness – but that Americans can help protect themselves and their families by putting into effect the basic principles of food safety. The FDA noted that it offers resources all year round for consumers and educators on a variety of subjects, including learning who is most at risk for foodborne illnesses and how to avoid food waste while maintaining food safety. The FDA emphasized, for example, the risks of cross-contamination, pointing out that raw meat, poultry, eggs, seafood, and flour should not contact foods that do not need to be cooked before eating.

Nonprofit wants FDA to move faster to stop nicotine use by kids. In a call to action issued August 19, the nonprofit Center for Tobacco-Free Kids denounced the vaping industry, saying that the industry has ushered in a “nationwide crisis of youth addiction, fueled by thousands of kid-friendly flavors and massive doses of nicotine.” The group blamed the FDA in part for the crisis, saying that the agency “has missed deadline after deadline to protect kids from these products, leaving flavored e-cigarettes widely available and our kids at risk of nicotine addiction and other health harms.” The FDA, the group charged, “has reported that it has denied marketing applications for over 1 million flavored e-cigarette products. However, the FDA has yet to issue decisions about many of the e-cigarette brands that have the largest market share or are most commonly used by youth.”

Jif plant had a history of Salmonella incidents. On September 6, Axios reported that according to an FDA inspection report, the Jif peanut butter factory responsible for a Salmonella outbreak in May had had a pattern of Salmonella incidents in recent years. The J.M. Smucker-owned plant in Lexington, Kentucky, was shuttered for weeks after a nationwide outbreak triggered a costly recall of the company’s peanut butter and other products. According to the inspection report, officials at the plant recorded 12 instances of Salmonella found in “routine environmental swabbing” and 11 instances of Salmonella found in finished peanut butter from 2017 through 2022. None of these instances resulted in any recalls or illnesses. Smucker spokesperson Frank Cirillo responded that the company “followed our standard food safety protocols to ensure that any potential issue was remediated appropriately. We are confident in the aggressive steps that were taken to address the events.”

Ontario farm fined for failing to take reasonable precautions to protect migrant workers from COVID-19. Scotlynn Sweetpac Growers Inc. has been convicted under Ontario’s Occupational Health and Safety Act for failing to isolate COVID-19 symptomatic workers from others, a lack of COVID-19 screening, and non-enforcement of the use of face masks among workers. A COVID-19 outbreak at the farm was declared in May 2020 after a worker was found to be COVID-19 positive. Further tests revealed that many of the workers were COVID-19 positive, although most were asymptomatic. However, the farm failed to isolate the workers who were symptomatic. In one case, a worker, Juan Lopez Chaparro, who was symptomatic stayed in a shared worker bunkhouse for three days before being admitted to the hospital; Mr. Chaparro later died in hospital. The Ministry of Labour found that the farm had contravened s. 25(2)(h) of OHSA, which requires employers take every precaution reasonable in the circumstances to protect workers. The farm was fined $125,000 for the contravention. In addition, a 25 percent victim fine surcharge was levied as required by the Provincial Offences Act.

Parts of case against Kashi on breakfast bar labeling allowed to continue. On September 9, the District Court for the Southern District of Illinois permitted some legal claims to continue but dismissed others in a case centering on allegations that Kashi misrepresented the ingredients in its “Ripe Strawberry” Soft Baked Breakfast Bars. The court dismissed class-action claims of breach of warranty, negligent misrepresentation, and common law fraud, while allowing unjust enrichment and consumer fraud claims to proceed. In the case, Kashi is accused of misrepresenting the amount of strawberries that the strawberry breakfast bars contain by putting pictures of strawberries on the product’s box and showing the cereal bars’ red filling. Strawberry puree is only the fifth ingredient in the product, behind pear juice concentrate, tapioca syrup, cane sugar and apple powder.

Court declines to dismiss food-deception case against Gorton’s. On August 4, the US District Court for the District of Massachusetts ruled that Gorton’s Inc. must face a class action lawsuit claiming that it markets its tilapia products as “sustainably sourced,” when the fish is actually farmed in China allegedly using environmentally destructive methods. The court dismissed certain claims against the company, but declined to dismiss the case altogether. The court said the mere fact that the fish are farmed in China is not enough to undercut the “sustainably sourced” label, but that the condition of those foreign farms could strengthen the plaintiffs’ case. Tilapia farms in China primarily raise fish using pond aquaculture, in which thousands of fish are crowded into shallow ponds, the complaint says, adding: “To enable the tilapia to survive in these stressful, crowded and unsanitary conditions, they are routinely treated with antibiotics and biocides.”

Referendum challenge may be coming to California legislation. New California legislation, AB 257, signed into law by Governor Gavin Newsom in late August, creates a 10-member Fast Food Council that will regulate working conditions in fast food outlets and raise workers’ wages, possibly as high as $22 an hour with cost-of-living adjustments thereafter. Now, Protect Neighborhood Restaurants, a business coalition, has filed paperwork aiming to place a referendum on the 2024 ballot in hopes of overturning the law. To make that happen, supporters of the referendum have until December 4 to submit 623,000 signatures of registered voters on petitions. If the measure qualifies, AB 257’s provisions would be suspended until the 2024 vote takes place.

Canadians content to rely on “best before” dates, even if it causes food waste. In Canada, only baby formula, meal replacements, nutritional supplements, formulated liquid diets and foods for use in a low-energy diet (sold only by pharmacists and only with a prescription) are required to have true “expiration dates,” after which the food is not to be bought, sold, or eaten. Most other foods have a “best before” or “use by” date, after which the food may not be as fresh or have the same flavour or nutritional content. However, food past its “best before” date may still be sold, purchased, and consumed. In a recent study, Dalhousie University’s Agri-Food Analytics Lab has determined that most Canadians oppose eliminating “best before” dates on food in order to reduce food waste. The study determined that 25 percent of Canadians use “best before” dates, instead of the smell or look of food, to determine whether that food is safe to eat. The study also recommended further research into the public perceptions of “best before” and “expiration” dates.

Science magazine reports that plant based meat alternatives could aid the environment. On September 4, Ars Technica, an online science magazine, asked itself and its readers an important question about the new generation of plant-based meat alternatives: If they can fill a large part of people’s demand for meat, and if they’re as “green” as they claim, would they offer carnivores a way to reduce the environmental impact of their dining choices without giving up their favorite recipes for burgers or steaks? Using publicly available data, the magazine concluded that the production of plant-based “meats” appears to profoundly reduce the use of natural resources. For example, the calculations found that plant-based meats used just 23 percent of the water that would be used for the same amount of beef protein, 11 percent of the water used for pork, and 24 percent of the water used for chicken. A similar result was true for the use of land. The conclusion was that these new products could indeed significantly aid the environment.