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

  • Inspector general criticizes FDA food recall procedures. On December 26, the inspector general of the Department of Health and Human Services released a report charging that the federal food safety recall process is so slow it can take up to 10 months to get unsafe products off all store shelves. Examining a sampling of 30 of the 1,557 food recalls announced between 2012 and 2015, the investigators found the FDA did not always evaluate food-borne hazards in a timely manner or ensure that companies initiated recalls promptly, leaving consumers at risk. "Each and every day is important, because every day the product remains on the shelf, consumers are potentially at risk for serious illness or death," said George Nedder, an assistant regional inspector general at HHS and lead author of the report. FDA Commissioner Scott Gottlieb responded that the system is changing and that he is doing all he can to speed up the recall process.
  • Romaine implicated in cross-border E. coli outbreak. "Avoid Romaine Lettuce for Now," Consumer Reports advised its readers on January 3. The article, posted on its website and social media, said that romaine is the likely cause of an outbreak of E. coli that has sickened nearly 60, and killed two, in the US and Canada. Investigators in both countries are revealing little else about the outbreak, including names of suppliers, growers and retailers that may be part of the supply chain bringing the produce to market; since mid-December, Canadian health officials have been advising consumers in eastern Canada to avoid romaine in favor of other greens. US health officials, in contrast, are not openly saying that romaine is the vector for this outbreak. Food Safety News on January 3 criticized both governments' slow movement, reporting that "the implicated romaine lettuce … is believed to remain in the supply chain." The Canadian grocery chain Sobey's has voluntarily withdrawn all romaine products from its shelves. Consumer Reports notes, "This strain of E. coli (0157:H7) produces a toxin that in some cases can lead to serious illness, kidney failure, and even death."
  • Recall of smoked salmon for Listeria is expanded. Food Safety News reported December 22 that Springfield Smoked Fish Co., based in Springfield, Massachusetts, has expanded a Listeria-related recall of its smoked salmon to included additional brand names and package sizes and types. According to a recall notice on the FDA's website, the company sold the products online to consumers nationwide. It initially had recalled its one-pound pre-sliced Nova Salmon produced on November 24 after tests by the firm showed positive results for Listeria. "The company is working diligently to determine the root cause and continues working with food safety experts to implement corrective actions and preventative measures," the company said on the FDA's website.
  • Food safety groups ask USDA to reject faster chicken-processing speeds. A coalition of food-safety organizations on December 13 asked the USDA to reject a petition filed by the National Chicken Council that would permit chicken slaughterhouse lines to operate at faster speeds than are now permitted. Currently, the lines are allowed to process up to 140 chickens per minute. The groups are concerned that faster processing speeds will lead to unsafe food because it will be more difficult for inspectors to discover contamination with fecal material at the higher speeds. "We question whether a third of a second is adequate time for an inspector to see much of anything, let alone evidence of fecal contamination on a chicken carcass," said Sarah Sorscher, the deputy director of regulatory affairs for the nonprofit Center for Science in the Public Interest. "The faster line speeds have the potential to increase fatigue and injury on the part of workers and raise the probability of a human error that compromises food safety."
  • USDA moves to withdraw organic farming animal welfare rule. The USDA has announced plans to withdraw final rules setting out how animals should be treated if their meat will be sold as "certified organic." The agency stated that the rules exceed its authority to issue animal welfare regulations and that the rules will stunt the organic industry's innovation and growth. The rules, which had been slated to go into effect March 30, 2018, would have required that livestock be given outdoor access year round and be kept in indoor pens that are sufficiently large and comfortable to keep them clean, dry and healthy; poultry would need to be housed in spaces large enough to allow them to move freely, stand normally, and engage in natural behaviors. The Organic Trade Association, which represents producers of organic products, vowed to challenge the Trump Administration's decision in court, and has embarked on a social media campaign in support of that challenge. The move would be "destructive to the whole organic field," the CEO of Pete and Gerry's, a free-range egg company that sells at Whole Foods and other organic grocers, said.
  • FDA is asked to revisit its decision to abolish its Food Advisory Committee. On December 20, ten public interest groups and seven former members of the FDA's Food Advisory Committee sent a letter to the FDA asking it to reinstate that advisory panel. Earlier in December, the FDA announced that it is abolishing the committee, saying that the panel had not met since 2015 and that its functions of outreach to the public and food experts could be handled in other ways. The groups' letter said that the FDA had taken this step "without notice to or consultation with stakeholders" and added that "while we appreciate the outreach FDA does, only an advisory committee meeting can provide helpful recommendations to the agency that are the result of interactive discussion among stakeholders."
  • Study suggests public health benefits from warnings on sugary beverages. A new study by the Johns Hopkins Bloomberg School of Public Health suggests that warning labels on sugar-sweetened beverages are linked to a decrease in the prevalence of obesity in three major US cities. The study, published December 14, used computer modeling to simulate grocery purchasing in the three cities – Baltimore, Philadelphia and San Francisco. It found that the warning labels, which mentioned the effect of sugar on diabetes, tooth decay and obesity, led to small decreases in obesity or overweight, ranging from under 1 percent to just over 4 percent. The researchers concluded that while the warnings had "a positive impact on obesity and overweight prevalence, it is not the sole solution to the obesity epidemic, as addressing many other factors is key." San Francisco already has an ordinance requiring such labels wherever sugary drinks are sold.
  • Seattle beverage tax goes into effect. January 1 was the effective date of a new tax on sugary beverages in Seattle. The city approved the 1.75 cent per ounce tax in June. The tax does not affect diet drinks, but applies to any non-alcoholic beverage that contains any caloric sweetener, thus affecting many fruit drinks as well as sodas. Retailers and many consumers had opposed the tax, as did unionized beverage-industry workers and critics who said the tax would be regressive and fall mostly on the poor. Advocates of the tax said its primary motive is to discourage people from buying sugary drinks and thus to reduce the rates of type 2 diabetes, hypertension, heart disease and tooth decay. Revenue from the tax is expected to total $15 million, some of which is targeted for a program to enable low-income people to buy fresh fruits and vegetables at farmers markets and grocery stores.
  • Are taxes on red meat next? Could red meat become the next product – after sugary beverages, tobacco and alcohol – that is subject to special taxation? A new report from an investor group called the FAIRR (Farm Animal Investment Risk & Return) Initiative discusses the possibility that meat could soon be taxed internationally in the same manner. Food Dive magazine, in its December 14 issue, notes that red meat's popularity in the United States, with per capita consumption of 71 pounds per year, could create great resistance to a tax of this sort, although it might take root abroad.
  • Hep A in the news. On December 29, a second employee at a Tim Horton's restaurant in Monroe, Michigan was diagnosed with hepatitis A, and state health officials are again urging anyone who ate at that location to see a physician and be vaccinated. Other workers at that restaurant are being tested, and health officials have extended free vaccination clinics for those lacking health insurance. Between August 2016 and December 20, 2017, 630 cases of Hep A were diagnosed in southeast Michigan – 20 of those people have died. Meanwhile, in San Diego, on January 2, the Board of Supervisors voted in a special meeting to extend the state of emergency it declared last summer regarding its own outbreak of the same strain of Hep A; that outbreak seems to be slowing down. The Hep A outbreak is also affecting the states of Utah, Colorado, Nevada, Arizona and Kentucky. The outbreak is worrisome because Hep A is easily transmitted by food, beverages and contaminated surfaces and objects. The hardest hit in this outbreak are homeless people and drug users, but as much as a third of the infected are neither. See our most recent coverage of the outbreak.
  • Bigelow Tea is sued for allegedly having glyphosate in its green tea. On December 15, the Organic Consumers Association sued Bigelow Tea, alleging that the company misrepresents its green tea as "all natural" when, OCA charges, it contains trace levels of the herbicide glyphosate. Bigelow vowed to defend itself vigorously against what it termed a "frivolous" lawsuit. The lawsuit was filed in the Superior Court for the District of Columbia three days before the EPA issued a draft risk assessment concluding that glyphosate was not likely to cause cancer in human beings. Bigelow's president and CEO, Cindi Bigelow, responded to the filing by saying that the lawsuit was "irresponsible" and "scaremongering" and also noted that the company does not use glyphosate on its tea plants. She said that the levels of glyphosate alleged in the lawsuit were so low that they may be a result of airborne contamination from neighboring growing areas. She also noted that the company's own tests had shown zero levels of the herbicide in the green tea.
  • Mrs. Smith's pie manufacturer sued over butter claims. A federal class action filed January 2 in the US District Court for the Eastern District of New York alleges that Mrs. Smith's brand frozen pies are marketed deceptively because the company that makes and sells them, Schwan's, refers to the pies as "Made With Real Butter," while they actually contain a butter blend that includes palm oil. According to the complaint, "When consumers see the word 'butter' they expect there won't be artificial ingredients to the extent there would be if butter was not prominently represented – in other words, it provides a 'halo' to the products."
  • Op-ed contends that opposition to GMOs is "heartless" and "inhumane." In a December 27 op-ed in The Washington Post, former Indiana Governor Mitch Daniels wrote that opposition to the marketing of GMOs is an example of "anti-science" beliefs, since no harm to human health has been found from the consumption of GMO food. Daniels, who is a Post columnist and president of Purdue University, also argued that it is immoral to oppose the sale and consumption of GMOs because they are indispensable to feeding the poor and hungry across the world. "It's time to move the argument to a new plane. For the rich and well-fed to deny Africans, Asians or South Americans the benefits of modern technology is not merely anti-scientific. It's cruel, it's heartless, it's inhumane – and it ought to be confronted on moral grounds that ordinary citizens, including those who have been conned into preferring non-GMO Cheerios, can understand," Daniels wrote.