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

  • FDA clarifies its stance on cheese making. On June 13, the FDA issued a clarification stating it “does not have a new policy banning the use of wooden shelves in cheese-making, nor is there any requirement in effect that addresses this issue.” Artisanal cheese makers had been perturbed by an earlier letter that seemed to represent an FDA policy position that the use of wood for aging cheese poses a significant risk of bacterial contamination.
  • Chobani faces lawsuit over “Greek yogurt” name and label statements. On June 19, two New York men sued Chobani Greek Yogurt, claiming that its name and packaging are deceptive since it is not made in Greece but in the United States. The lawsuit, filed in federal court in Brooklyn, also claims consumers are being deceived by the “0%” claim for the yogurt, which refers to zero percent fat, and that consumers believe it may mean the product has zero calories or sugar.
  • Food safety auditor continues to fight lawsuits over deadly 2011 cantaloupe contamination. Victims of a deadly outbreak of food contamination in cantaloupe in 2011 are pursuing first-of-its-kind litigation against a food safety auditor, Primus Group Inc., which had been hired by farmers to evaluate their food-safety practices and gave them a 96 percent rating. Primus has responded that it has no duty of care to the ultimate consumers of the farm’s products. To date, nine courts in seven states have split over the question; 60 additional cases are pending.
  • Peanut executive’s defense involves inability to trace the course of company’s product.In a federal felony case regarding tainted peanuts that caused nine deaths and 700 illnesses, attorneys for Stewart Parnell, the former Peanut Corporation of America president and CEO, are asserting there is no way to prove a deadly pathogen in peanut butter cheese crackers came from their client’s specific product because the end product’s manufacturer mixed peanuts from many sources, making the ultimate source of the deadly peanuts untraceable. The case goes to trial July 14.
  • FDA is viewed as unlikely to regulate caffeine in confectionery products. The founder of a company that manufactures a caffeine-containing chocolate bar says that despite some FDA statements last year that it was looking into the effects of caffeine on young people, it is unlikely the agency will regulate caffeine levels in confectionery products. Last year, Wrigley’s voluntarily paused production of a caffeine-containing chewing gum while waiting on the FDA’s position. The FDA has said it has not decided what it will do about the issue because the scientific literature on caffeine is so vast.
  • Industry awaits release of sodium guidelines. While the food industry eagerly awaits FDA’s policy on reduced salt levels, there is little indication that the agency’s proposed voluntary guidelines will be released by its 2013 goal, which is the end of this year. In 2015, the FDA intends to implement its complete plan to promote the broad and gradual reduction of added sodium in the food supply. The agency has asserted that overconsumption of sodium is a “significant public health issue.” There is speculation that the guidelines will be similar to the New York City-led National Salt Reduction Initiative aimed at reducing sodium in food by 25 percent by 2014, which was supported by over two dozen companies.