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

Bill introduced in US Senate to tighten FDA regulation of GRAS substances.

On May 31, Senator Edward Markey (D-MA), joined by Senators Richard Blumenthal (D-CT) and Elizabeth Warren (D-MA) introduced a bill intended to increase federal regulation of substances that are designated as GRAS, or “Generally Recognized as Safe.” The proposed legislation calls for stricter regulation of GRAS substances and for the creation of a new office at the FDA to assess the safety of chemicals in the nation’s food supply. “The only mystery families should encounter at mealtime is what’s for dinner, not what’s in dinner,” Markey said in introducing the bill. “Americans deserve to know that the food at their kitchen table is safe for themselves and their families to eat . . . It is long past time we revise existing food safety measures and close the loophole allowing manufacturers to self-regulate what new substances can enter our food supply.”

Seeking feedback on Canadian policies for labeling e-commercefood products.

During the COVID-19 pandemic, online purchasing of food significantly increased – but many consumers found that it was difficult to obtain accurate, consistent information about the food they were buying online.While there are strict regulations setting out the mandatory information required on the physical labels of foodstuffs, in Canada these guidelines do not apply to e-commerce. Health Canada and the Canadian Food Inspection Agency now propose to develop guidelines adopting nutritional labeling principles for foods sold online. Comments may be submitted via this page.

Appeals court rejects challenge to FDA ban on sale of raw butter.

On June 10, the US Court of Appeals for the DC Circuit, affirming a lower court, ruled against a farmer who had asserted that the FDA’s regulation banning the interstate sale of raw butter violates the federal Food, Drug, and Cosmetic Act. The appeals court found that the FDA acted reasonably when it concluded that raw butter was too dangerous to be sold interstate. The court pointed out that when Congress set a standard of identity for butter, it explicitly prevented the FDA from altering that definition. It noted that the plaintiff in the case contended that the pasteurization requirement for butter does alter that definition in violation of the law. But, the court concluded, “That is incorrect: The pasteurization rule did not amend the statutory standard of identity for butter, either formally or functionally. Raw-cream butter, though unpasteurized, is still ‘butter,’ notwithstanding the FDA’s determination that its interstate sale would threaten public health.”

Sixteen senators ask US government to oppose a challenge to California’s Prop 12.

Sixteen Democratic US senators wrote to US Solicitor General Elizabeth Prelogar on June 2, asking her to support California’s Proposition 12 in an upcoming challenge in the US Supreme Court. The proposition sets humane standards for certain egg, pork and veal products sold in California, and the National Pork Producers Council is challenging it on the grounds that it violates the Commerce Clause of the US Constitution. In March, the Supreme Court agreed to hear the case. The senators wrote that a ruling against Proposition 12 “could allow large, multi-state corporations to evade numerous state laws that focus on harms to their constituents, including those addressing wildlife trafficking, climate change, renewable energy, stolen property trafficking, and labor abuses.”

New resources for Canadian healthcare professionals to apply Dietary Guidelines.

A new food guide resource from the government of Canada, “Applying Canada’s Dietary Guidelines,” aims to support health professionals and policymakers as they implement Canada’s Dietary Guidelines. The additional information provides advice on better aligning policy with the Dietary Guidelines recommendations and developing programs to achieve nutritional adequacy. It also includes ways to help health professionals and policymakers promote dietary shifts while respecting diverse cultures and food traditions as well as nutritional advice for different life stages. Late this year, Health Canada will host webinars for health professionals and policymakers on using “Applying the Guidelines.”

Agricultural lands not compromised by November floods.

Despite devastating flooding last November, the integrity of agricultural land in British Columbia remains strong, say scientists from BC’s agricultural ministry. Massive flooding in the Sumas Prairie – a low-lying flatland straddling British Columbia and Washington state – triggered concerns that water polluted by ‎manure, fertilizer, fuel, and oil tanks might harm soil quality, hindering food ‎production. Following soil sampling and analysis, scientists from BC’s agriculture ministry determined that the flooding did not compromise the sampled agricultural lands. Beneficial insect life also remains healthy. An agriculture consulting team believes leaked fuel ‎remained on top of the floodwater and either evaporated or washed away, while the deep cold snap that ‎followed the flood killed any manure-related bacteria.‎ But while contamination doesn’t seem to be an issue, many farmers continue to deal with extensive flood-related ‎damage, and both governments and residents are still considering how to move forward. Abbotsford, BC, for instance, is working with an array of governments, among them the provincial and Canadian federal government, Semá:th, Màthexwi and Leq’á:mel First Nations leadership, and Whatcom County, Washington, to determine short- and long-term paths forward.

California judge rejects broad pesticide-spraying program.

In a victory for food-safety advocacy groups, a California judge on May 19 ruled that a broad California state pesticide spraying program is unlawful. The judge found that state officials failed to adequately study and minimize the public health threat from pesticides and failed to properly inform the public about the risks of spraying. The ruling by a state court trial judge came in a lawsuit brought by the city of Berkeley and 11 public-health, conservation, and food-safety organizations, including the Center for Food Safety. “The state must prioritize providing more resources to help farmers transition to practices that reduce the need for pesticides and instead promote ecologically based farming practices that protect people and the Earth,” said Rebecca Spector, West Coast director of the Center for Food Safety.

Smucker is hit with lawsuits stemming from Jif peanut butter contamination.

On May 26, J.M. Smucker Co. was sued by a consumer over the current Salmonella outbreak linked to the company’s Jif peanut butter. The plaintiff in the lawsuit, which was filed in the US District Court for the Northern District of Ohio, asked that a judge declare it a class action on behalf of victims of the outbreak. Sixteen people from 12 states have fallen ill thus far after eating the peanut butter or products that contained it, and two have been hospitalized. Similar lawsuits have been filed in the US District Court for the Eastern District of Kentucky and in state court in Georgia. Meanwhile, the recall continues to expand to affect an array of products incorporating the implicated peanut butter, among them a peanut butter cup ice cream, various candies, apple and peanut butter snack trays, and a protein bar.

Bulk peaches recalled due to possible Listeria contamination.

On May 25, the Brookshire Grocery Co, based in Tyler, Texas, issued a voluntary recall of bulk yellow flesh peaches that had been available in stores in April and May 2022 because they have the potential to be contaminated with Listeria monocytogenes, an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. The peaches are a product of Chile. No illnesses have yet been discovered as a result of consumption of the peaches. The recall was a result of random sampling conducted at Brookshire’s distribution center by the Texas Department of State Health Services after some of the peaches that were shipped to stores tested positive for Listeria.

CSPI supports convening a White House conference on hunger, nutrition, and health.

The nonprofit Center for Science in the Public Interest, on May 26, sent a letter to President Joe Biden supporting his plan to convene a White House Conference on Hunger, Nutrition, and Health. Pointing out that the first such conference took place more than 50 years ago, the group said challenges to the nation’s health and nutrition have only grown since then. It said that the nation now faces “an epidemic of diet-related disease, COVID-19-related morbidity partly associated with diet, a food environment that makes the healthy choice the harder choice, and much more.” It also noted that “hunger, nutrition insecurity, and diet-related chronic diseases disproportionately affect people of color as well as low-income, rural, and other underserved populations.” The conference, CSPI said, “can be a catapult to an improved food system infrastructure that is equitable, just, resilient, and sustainable.”

New study points to difficulties in achieving consumer acceptance of bioengineered foods.

A June 9 blog post by the nonprofit Center for Science in the Public Interest summarizes a recent study about consumer sentiment concerning bioengineered and gene-edited food that was conducted by the Food Industry Association Foundation. A key takeaway from the report, according to the nonprofit group, is that “the more transparent the food manufacturers are about the technologies used to produce food and the more information provided about why the technology is being utilized, the more likely consumers will purchase those [bioengineered] products.” The nonprofit also concludes that there is still a “difficult road that gene-edited and bioengineered foods need to navigate for consumers to prefer them over organic, non-GMO, and conventional products.”