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

  • California judge finds Roundup to be a possible cause of cancer. On January 27, a California state judge issued a tentative ruling that Roundup, the broadly used herbicide manufactured by Monsanto, is a possible cause of cancer in humans. Fresno County Superior Court Judge Kristi Kapetan still must issue a formal decision in the case. Monsanto is challenging a state administrative ruling that it must use a warning label on the product, whose active ingredient is glyphosate. Independent tests have found residues of glyphosate in many commonly consumed foods. In California alone, glyphosate is used on more than 250 kinds of crops. The EPA says the product has “low toxicity,” and Monsanto has affirmed on many occasions that it is safe. However, the International Agency for Research on Cancer, a Lyon, France-based branch of the UN World Health Organization, has classified the chemical as a “probable human carcinogen.” Monsanto said in a statement that it will challenge the judge’s tentative ruling.
  • Lawsuit challenges marketing and trade name of almond milk. A California consumer, Cynthia Cardarelli Painter, is suing Blue Diamond Growers, the maker of Almond Breeze Almond Milk, on the grounds that it deceptively advertises that its almond milk products are nutritionally equivalent to or even better than cow’s milk. The complaint says that Blue Diamond’s products lack many of the essential nutrients and vitamins in cow’s milk. The complaint also says that since almond milk does not have the same nutritional benefits as milk, Blue Diamond should be required to label its almond beverages as “imitation milk.” The case was filed in California Superior Court in Los Angeles. The plaintiff seeks to represent a nationwide class of individuals who purchased Blue Diamond almond milk at any time in the past four years.
  • Plant-based product manufacturers respond to dairy industry “attacks.” On February 2, the Plant Based Foods Association, which represents manufacturers of plant-based products such as soy milk and almond milk, responded to what it termed “unfounded attacks” on its industry by the dairy industry. The dairy industry and many members of Congress from dairy states have recently asked the FDA to enforce the “standard of identity” for dairy milk and to prevent makers of plant-based products from calling them “milk.” In letters to the FDA, the Plant Based Foods Association asserted that its products are currently properly labeled with their “common or usual name” and that the FDA should not take action. In a related development, Senator Tammy Baldwin (D-WI) and Representative Peter Welch (D-VT) introduced companion bills that would prohibit plant-based food companies from using any dairy terms whatsoever on their labels.
  • Cookie dough manufacturer warned by FDA regarding listeria contamination. The FDA on January 10 issued a warning letter to Aspen Hills Inc., a company in Garner, Iowa, that manufactures frozen cookie dough and other products. In September 2016, Blue Bell Creameries, which bought cookie dough from Aspen Hills, found the product contaminated by listeria. During a subsequent investigation, the FDA made recommendations to Aspen Hills for making its manufacturing procedures safer. The January letter from the FDA acknowledged those steps, but said that the company still failed to meet requirements of federal law. The FDA gave Aspen Hills until February 2 to clean up the problems or to face possible seizure of its products.
  • Nonprofit group asks FDA to define “disqualifying levels” of added sugars. The Union of Concerned Scientists petitioned the FDA on January 27 to define “disqualifying levels” of added sugars that would prevent retailers and manufacturers from labeling or advertising such high-sugar products as “healthy.” The group did not set forth a specific “disqualifying level.” The nonprofit group wrote in its petition, “With the accumulating scientific knowledge linking sugar consumption to weight gain and several chronic diseases—type 2 diabetes, cardiovascular disease, high cholesterol, and high blood pressure, the FDA should amend its rules so that food companies can no longer make health or nutrient claims on foods with high sugar amounts.” The FDA recently requested comments on how it should define the term “healthy.” The organization’s petition will likely come up at the FDA’s scheduled March 9 meeting on the issue. The FDA is accepting comments on the “healthy” issue through April 26, 2017.
  • CSPI criticizes proposed law on nutrition disclosures. On February 2, the Center for Science in the Public Interest denounced the pending Common Sense Nutrition Disclosure Act. It said that if this bill becomes law, restaurants could “manipulate serving sizes to make calorie counts look better, allowing them to list calories for half a muffin or tiny slices of pizza, and weaken enforcement and consumer protection.” A similar bill passed the US House of Representatives in 2016 but did not gain Senate passage. Among other things, the bill would permit pizza establishments that operate primarily in response to phone-in or online orders to list their calories only on their website and not in the store itself.
  • Article urges steps now toward compliance with new Nutrition Facts label requirements. A February 6 article in Food Processing magazine points out that a major makeover of the required Nutrition Facts Panel on product labels is coming soon. The revisions reflect the first revision by the FDA of the required disclosures under the Nutritional Labeling and Education Act of 1990 in almost 20 years. Most food and beverage companies will need to be compliant by July 26, 2018, the article said, which makes 2017 the key year to prepare for compliance. Among other things, calorie counts will now be listed in large, bold type; the definition of a “single serving” will be more realistic, based on what people actually eat; and the amount of “added sugars” in a product will have to be disclosed.