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

  • KIND challenges food industry to disclose hidden sweeteners. KIND, manufacturer of "wholesome, delicious, healthy snacks," this month called on American snack makers to disclose all the sweeteners they use in their products.Responding to consumers' growing aversion to sugar in prepared foods, many companies are turning to alternative sweeteners, which may be difficult for consumers to identify.KIND, which prides itself on transparency, has launched a "national mobile index" setting out the types and amount of sweeteners in an array of popular snacks, cereals and yogurts. Some popular snacks marketed as healthy options actually contain more sugar than a cookie; and some of the profiled products contain less sugar than a comparable KIND product.
  • FDA agrees to exclude allulose from sugar count in Nutrition Facts Label. On April 17, the FDA ruled that allulose, a rarely used sugar with low energy value that is found in some plant products, will not count in the "total sugar" or "added sugar" tally on the new Nutrition Facts Label. The FDA was responding to a petition filed by London-based Tate & Lyle, a manufacturer of allulose ingredients. "Our regulatory, legal, nutrition and marketing teams have worked with the FDA to show the potential health benefit that allulose could have for U.S. consumers, if labeled in a clear and appropriate way," said Abigail Storms, Vice-President of Global Strategic Marketing at Tate & Lyle. "It's very rewarding to receive this decision and unlock the great potential that allulose has to reduce calories in a significant way while delivering great taste and functionality."
  • Study says Nutrition Facts changes could prevent or postpone diseases and save billions. A study in the medical journal Circulation concludes that the disclosure of added sugars on the Nutrition Facts panel could generate substantial health gains, such as helping to prevent hundreds of thousands of cases of diet-related diseases, and save the US healthcare system tens of billions of dollars in the coming decades. The study, led by researchers at the Friedman School of Nutrition Science and Policy at Tufts University and the University of Liverpool, estimates that labeling could prevent or postpone nearly one million cases of diseases such as stroke and type 2 diabetes over 20 years. The net savings in terms of healthcare would be $31 billion over that time period, according to the researchers. If food companies were to responsively cut added sugars in their products because of the information they were required to disclose on the label, the changes could further prevent or postpone nearly three million cases of cardiovascular disease and diabetes over 20 years. In that case, the healthcare cost savings would jump to $57.6 billion over the same time frame. See the abstract of the study here.
  • Food association says public not perplexed by terms like "soy milk." The Plant Based Foods Association, which represents makers of such foods as soy milk and almond milk, has released a review of more than 7,000 public comments submitted to the FDA about the use of dairy terms for plant-based milk products. According to the Association, the review, released on April 22, found that 76 percent of the commenters supported continuing to allow dairy terms in labeling of plant-based products like almond milk. The Association, however, opposes new restrictions on such foods' labels. The group's executive director, Michele Simon, said, "These results send FDA officials a clear message: Do not restrict plant-based food companies from using words in the English language that consumers recognize and understand." At the start of the comment period, then FDA Commissioner Scott Gottlieb said that the agency "has concerns that the labeling of some plant-based products may lead consumers to believe that those products have the same key nutritional attributes as dairy products, even though these products can vary widely in their nutritional content."
  • Some food companies and groups urge go-slow approach to salt reduction plan. The FDA is set to announce new voluntary standards for the salt content of processed foods, but some segments of the food industry are pushing back. Politico magazine reported on April 12 that some food companies are developing a last-ditch attempt to get the Administration to pause the salt-reduction effort, taking issue with other food companies that support this FDA action. Groups such as the American Bakers Association, American Frozen Food Institute, International Dairy Foods Association, North American Meat Institute, National Restaurant Association and SNAC International, a trade association that represents more than 400 snack manufacturers, are part of the effort. They are hoping to meet with officials of the Office of Management and Budget to slow down adoption of the standards. The Sustainable Food Policy Alliance, which represents several major food companies, is opposing any change in the FDA's plans.
  • New bill would permit direct wine and beer sales to consumers in Alabama. Another bill has been introduced in the Alabama state legislature to permit residents of that state to have wine and beer shipped to their homes for the first time. Alabama is now one of only seven states that prohibits shipments of wine and beer directly to consumers. Instead, consumers must order through the state and have the products shipped to a state wine and spirits store, where they can pick them up. However, under the bill, only small breweries that are licensed in the state and produce less than 1,500 barrels of beer per year would be allowed to ship directly to consumers. For wineries, the limit is 24,000 gallons a year. Overall, consumers would be limited to 24 cases of beer and 24 cases of wine per year.
  • Article takes aim at states' regulation of alcohol sales. An April 12 op-ed in the National Review denounces many states' alcohol regulation regimes as anti-consumer and designed only to protect entrenched economic interests, then questions whether such laws are constitutional. The article, by Caleb Whitmer, an associate at the nonprofit organization Consumers' Research, particularly criticizes current alcohol laws in Mississippi and Tennessee. "This year marks the 100th anniversary of the beginning of Prohibition. While that odd chapter in American history officially concluded with the 21st Amendment's ratification in 1933, the restless ghosts of a 14-year national experiment in teetotallery still haunt the country's bars, liquor stores, and breweries," Whitmer wrote. "Today, the labyrinth-like legal apparatus constructed in Prohibition's wake is just as likely to provide protection for entrenched alcohol interests as it is to encourage the responsible distribution and sale of beer, wine, and spirits." The US Supreme Court is currently wrestling with the proper balance between the 21st Amendment and the Commerce clause's prohibition of economic protectionism in the case, Tennessee Wine and Spirits Retailers Association v. Blair anticipated to be decided this fall. Oral arguments in that case were heard in January.
  • Oregon moves to protect its wine against outside competitors. On April 17, the Oregon state Senate passed three bills designed to protect the brand identity of Oregon pinot noir and the specific regions where grapes are grown for that wine. The issue arose in the summer of 2018, when California-based Copper Cane LLC started describing its pinot noir wine as originating in three viticultural areas in Oregon. Due to the controversy, company has agreed to rebrand its wines. The Oregon Wine Board had previously ruled that if a wine label claims or implies that it is from an American Viticultural Area (AVA) within Oregon, 95 percent of the grapes in that wine must be from that appellation of origin.
  • TB raises maximum fine for nondisclosure, due to an inflation adjustment. On April 11, the Alcohol and Tobacco Tax and Trade Bureau ("TTB") announced that because of an inflation adjustment mandated by Congress, the maximum fine under the Alcohol Beverage Labeling Act (ABLA) is being increased from $20,521 to $21,039. This provision will apply only to violations that occur after April 11, 2019. Among all the laws enforced by the TTB, the adjustment applies only to the mandatory health warning provision of the ABLA, which sets forth the familiar warning that pregnant women should not drink alcoholic beverages and that the consumption of alcoholic beverages can cause health problems and impairs a person's ability to operate a motor vehicle. The original fine set forth in the statute, before inflation adjustments, was $10,000.
  • Group sues USDA over possible fecal contamination in poultry. On April 16, the Physicians Committee for Responsible Medicine, which represents 12,000 doctors, filed a lawsuit against the USDA, claiming that the department was ignoring serious questions about fecal contamination in poultry. The case was filed in the US District Court for the District of Columbia. The group is pressing for new rules that would prohibit the sale of raw meat contaminated with feces and that would ban the term "wholesome" from being used on inspection labels. It is proposing a new label on meat products that would include the phrase "may contain feces." A USDA spokeswoman responded that the department's Food Safety and Inspection Service has a "zero tolerance policy for fecal material on meat and poultry." She said, "FSIS on-line inspectors check for fecal contamination on each poultry and livestock carcass at the post-mortem inspection step, and FSIS off-line inspectors conduct fecal zero tolerance checks on a statistically valid sample of carcasses randomly selected throughout the production shift."
  • Melon recall is latest linked to Indianapolis facility. At least 93 people across the Midwest have fallen ill in an outbreak of Salmonella traced to precut melon produced at the Indianapolis facility of Caito Foods, Inc. The fruit was sold by major groceries in Alabama, Illinois, Indiana, Kentucky, Michigan, Minnesota, Missouri, Ohio and Wisconsin. The Indianapolis Star reported on April 17 that this was the fourth disease outbreak linked to the Caito factory in the last 10 months. One other recall involved salmonella, one listeria, and another cyclospora. In the latest outbreak, 23 people have been hospitalized to date.