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

  • Washington Post editorializes against Chipotle’s decision to ban GMOs from its food. In an April 29 editorial, The Washington Post sharply criticized Chipotle’s decision to remove food with genetically modified organisms from its menus. “Thus has a leading food company added its imprimatur to a global propaganda campaign that is not only contrary to the best scientific knowledge but also potentially harmful to vulnerable populations around the world,” the Post’s editorial board wrote. The editorial said GMOs have never been shown to be harmful to human health and that no one should confuse Chipotle’s actions with real corporate responsibility.
  • California bill to require warning labels on sugary drinks dies in committee. On April 29, a bill that would have required warning labels on sugary soft drinks failed to move forward in the California legislature. The state Senate’s health committee voted 4-1 to approve the bill, but the bill needed five votes to advance. Four other senators were present during the vote, but they chose not to weigh in on the bill. The bill would have required drinks with more than 75 calories per 12 ounces to bear this label: “STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” Health advocacy groups had made the bill a priority and expressed disappointment that it failed. 
  • Seven senators urge full funding of FDA food safety activities. On April 30, seven US senators issued a letter urging the Senate Appropriations Committee to fully fund the FDA’s food safety activities that are authorized by the Food Safety Modernization Act (FSMA). Since it was signed into law in 2011, the senators pointed out, the FSMA has received less than half the funding it requires to be fully implemented. The senators wrote that the act “was enacted to bring our nation’s food safety system into the 21st century by enabling our agencies to prevent food contamination rather than reacting once illnesses have occurred. Prevention is key given that food borne pathogens cause an estimated 48 million illnesses and 3,000 deaths annually.” The signers of the letter were Senators Dick Durbin (D-IL), Richard Blumenthal (D-CT), Dianne Feinstein (D-CA), Al Franken (D-MN), Kirsten Gillibrand (D-NY), Amy Klobuchar (D-MN) and Brian Schatz (D-HI). 
  • Scientists issue letter expressing concern over a common type of food-packaging chemical. More than 200 scientists from 38 countries issued a statement on May 1 calling for reductions in the global production and use of a class of chemicals found in thousands of grease- and water-resistant industrial and consumer products, including food packaging. The chemicals, known as polyfluorinated and perfluorinated substances (PFASs), resist heat and help materials repel water, oil, and stains. They also are nearly indestructible, persisting in the environment for decades. Although some studies have purported to show that at least two of these chemicals may cause liver and reproductive damage in wildlife and lab animals, industry groups contend that these chemicals are safe as currently used. 
  • Senators introduce bill to modify school lunch requirements. On May 1, two US senators introduced a bill that would somewhat reduce the stringency of federal school lunch nutrition requirements. Senators John Hoeven (R-ND) and Angus King (I-ME) introduced the Healthy School Meals Flexibility Act, which would provide permanent flexibility for schools to comply with the USDA’s sodium and whole grain requirements under the National School Lunch and Breakfast programs. The bill would cut back the current USDA requirement that 100 percent of grains used in school lunches and breakfasts be whole grain-rich; instead, 50 percent of grains offered in school meals would be whole grain-rich. The proposed act would also prevent the USDA from requiring further sodium reductions in school meals. The senators say the changes are necessary so that school lunches can include foods that children are more likely to eat, such as tortillas, biscuits and pasta. 
  • Apple association president makes food safety his first priority as FDA report looms. Jim Bair, president of the U.S. Apple Association, said on May 11 that food safety is his top priority this year. Last winter, three people died and 34 were hospitalized in a multistate listeria outbreak traced to caramel apples grown in the US and processed in a California packing plant. Bair said the apple industry is anxiously awaiting an FDA report on the outbreak, due for release soon. Bair described the outbreak as “a wake-up call” and said, “Everyone is working hard and fast to take a fresh look at operations and do better where we can. It’s a real war effort at the moment.” 
  • Organic trade group petitions USDA to set up industry program to promote organic sector. On May 12, the Organic Trade Association formally petitioned the USDA to begin taking steps to conduct a vote on and implement a research and promotion check-off program for the organic industry. If approved, the program could raise more than $30 million a year to promote organic farming practices and to encourage the use of organic foods. In addition to requiring USDA approval, the program needs the approval of a majority of organic stakeholders – farmers, processors and handlers – before it can be set up. The move comes at a time when organic foods are becoming increasingly popular yet many consumers seem to still be confused about the meaning of such terms as “organic,” “all natural” and “GMO free.” One CEO of an organic snack company said, “As an industry we haven’t done a great job explaining to shoppers what it means to be organic and the benefits of organic.” 
  • Kind is hit by consumer class action regarding snack labeling. Less than a week after the FDA sent a letter to Kind LLC warning that some of the company’s snacks featured an illegal “healthy” labeling claim regarding saturated fat content, a California consumer filed suit against Kind in the US District Court for the Central District of California. Relying heavily on the FDA’s letter, Brandon Kaufer filed a putative class action composed of all United States purchasers of four flavors of Kind’s snack bars: Fruit & Nut Almond & Apricot, Kind Plus Dark Chocolate Cherry Cashew + Antioxidants, Fruit & Nut Almond & Coconut, and Kind Plus Peanut Butter Dark Chocolate + Protein. According to the complaint, Kind “specifically targets” health conscious consumers by using statements like: “There’s healthy. There’s tasty. Then there’s healthy and tasty. At Kind, we believe you deserve both.” Kind has not yet responded to the complaint.