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

  • Judge appears to cast doubt on the case against glyphosate. March 14 was the final day of testimony in a hearing before Judge Vince Chhabria of the US District Court for the Northern District of California centering on whether Monsanto's popular herbicide Roundup causes cancer. The active ingredient in Roundup is glyphosate. The judge is not expected to decide the case for some time, but at the hearing he was skeptical about the experts who testified that glyphosate is a human carcinogen. Judge Chhabria said, "I do have a difficult time understanding how an epidemiologist in the face of all the evidence that we saw and heard last week" can conclude that glyphosate "is in fact causing" non-Hodgkin lymphoma in human beings. He added that, in his view, the evidence that glyphosate is causing that disease in humans at current exposure levels is "pretty sparse." More than 300 cases involving the alleged toxicity of glyphosate have been brought together in that district before that judge. See our alert, "New glyphosate decision forces Prop 65 to reckon with federally accepted science."
  • Two senators seek end of USDA catfish inspection program. Most types of fish are subject to health regulation by the FDA, but catfish, in contrast, is subject to regular inspection by the USDA. On March 19, Senators John McCain (R-AZ) and Jeanne Shaheen (D-NH) sent a letter to US Trade Representative Robert Lighthizer seeking his support for an end to the USDA catfish inspection program. The senators noted that Vietnam recently launched a World Trade Organization complaint against the United States over the catfish program and that, if the United States loses the WTO battle, US agricultural exports to Vietnam could be imperiled. They said the program is "duplicative" and constitutes "a damaging trade barrier."
  • USDA withdraws rule on organic livestock. As expected, on March 12 the Trump Administration canceled an organic livestock rule finalized in the last days of former President Barack Obama's Administration. The USDA withdrew the Organic Livestock and Poultry Practices rule because it took the view that the rule would have exceeded the department's authority and constituted a costly burden on organic producers. The department said it has a narrow authority under law to regulate the food that animals eat and the vaccines and antibiotics they receive, but that this authority does not extend to broader issues of animal welfare. The rescinded rule addressed a variety of practices involving transport, slaughter and living conditions for organic animals and poultry, including access to outdoor spaces. See some of our earlier coverage of this story. In response to the withdrawal, on March 21 several nonprofits sued the USDA in the Northern District of California, arguing that the withdrawal will weaken organic food production standards.
  • FDA releases clarifying documents for new Nutrition Facts labels. On March 1, FDA commissioner Dr. Scott Gottlieb released policy documents designed to clarify and implement the agency's upcoming update to the Nutrition Facts labels for food packaging. They include guidance on how companies should treat added sugars, serving sizes and dietary fibers on the new labels. For example, companies that sell products with honey, maple syrup and cranberry in them can add explanations on the labels about the quantity and function of these added sugars. "All of these guidances are reflective of the feedback we heard about the desire for more information on these important topics," Gottlieb said in a statement. He wrote, "The Nutrition Facts label hasn't been meaningfully updated in decades, and so in transitioning to this new, more informative label, it is important that we provide careful guidance to food manufacturers and to consumers." Gottlieb said the agency is launching a major educational campaign for consumers about the new label.
  • Judge dismisses slack-fill case against candy company. On February 28, the District Court of the Northern District of Illinois dismissed a slack-fill lawsuit against Fannie May Confections Brands. The case was brought by two individuals who said they had purchased Fannie May's Mint Meltaways and Pixies last year and that the boxes contained, respectively, 33 percent and 40 percent empty space. They alleged that Fannie May had engaged in deceptive practices by misrepresenting the amount of product in the boxes. However, the court found the plaintiffs had failed to adequately allege a risk of future harm and had failed to prove that the packages they had not purchased were substantially similar to the packages they had purchased.
  • Salt Institute says it's often too little salt, not too much, that is harmful to health. The Salt Institute, which represents manufacturers of salt products, held a full-day workshop March 7 to publicize its view that there is insufficient scientific evidence to justify a governmental campaign to reduce salt consumption in the United States. The group did so as part of its effort to influence the salt-intake provisions of the 2020-2025 Dietary Guidelines for Americans. The group said in a statement that it is often low sodium in the diet, rather than too much sodium, that is harmful to Americans. "Contrary to the government's current recommendations of a maximum of 2,300 mg/day of sodium, evidence indicates people on low sodium diets may place themselves at risk," it said. "Peer-reviewed research has shown that low-salt diets can lead to insulin resistance, congestive heart failure, cardiovascular events, iodine deficiency, loss of cognition, low birth weights, and higher rates of death."
  • Campaign is launched to prevent new soda taxes in Washington state. On February 26, the beverage industry kicked off a campaign to prevent the spread of soda taxes in Washington state. Seattle adopted such a tax this year. The campaign is not intended to reverse that measure but to promote a statewide initiative that would prohibit new beverage taxes in other localities in the state. The ballot committee is sponsored by the American Beverage Association and supported by organizations including the Korean American Grocers Association, Washington Food Industry Association, Washington Farm Bureau and Joint Council of Teamsters. A spokesman said that the group will be called Yes! To Affordable Groceries.
  • Lawsuits filed over chicken salad contamination. The number of confirmed victims in a multistate outbreak of salmonella has risen to 170 across seven states, and, says the CDC, 62 have had symptoms so severe they required hospitalization. The outbreak is linked to chicken salad sold at Fareway grocery stores and produced by Triple T Specialty Meats Inc. of Ackley, Iowa. On February 9, the Iowa Department of Inspections and Appeals informed Fareway about the contamination, and the chain removed the chicken salad from its stores, but Triple T did not recall the salad until February 21. On February 28, two Iowa residents filed lawsuits against Fareway and Triple T. This brings to at least six the number of lawsuits rising from this outbreak.
  • CDC identifies dried coconut in salmonella outbreak. On March 21, the CDC warned the public not to eat several brands of dried coconut: Natural Grocers Coconut Smiles Organic, International Harvest Inc. Go Smile! Raw Coconut, and Go Smiles Dried Coconut Raw. All of these brands have been recalled by the manufacturer. The dried coconut was distributed in at least 19 states through the Natural Grocer chain, and regulators are working to determine whether other outlets may also be involved. At this writing, 13 people in eight states have fallen ill in the outbreak, and three have been hospitalized. The CDC notice urges consumers to discard any remaining supplies of those brands and to wash and sanitize the places where they were stored. This outbreak is not related to another current outbreak of salmonella in frozen coconut.
  • Hep A in the news. Large outbreaks of the same strain of Hepatitis A continue to make headlines across the US. Southeast Michigan remains the hottest spot of this nationwide outbreak – since August 1, 2016, Michigan has seen 771 confirmed cases of the same strain of Hep A, and 22 of those people have died. Early this month, Hepatitis A was confirmed in a food handler who worked at an Olga's Kitchen restaurant in Monroe. The county health department is urging anyone who visited the restaurant between February 24 and March 7 to be vaccinated; meanwhile, county and state health officials are expanding their outreach efforts, including mobile vaccination clinics, to restaurant workers and those in susceptible populations. In Kentucky, the Hep A outbreak is growing. While the state typically sees about 20 cases a year, so far in 2018 the Louisville area alone has seen more than 140. On March 14, Dr. Jonathan Ballard, the director of the division of Epidemiology and Health Planning for the Kentucky Cabinet for Health and Family Services, said the state has seen a drastic increase in cases in the last few weeks, mainly affecting adults ages 20 to 49. Late in 2017, the CDC gave thousands of Hep A vaccines to Louisville; since then, more than 4,700 people at highest risk, among them inmates and jail staff, have been vaccinated. On March 21, four Hep A victims filed suit against Waffle House, Inc. in Boyd County; a restaurant worker infected with Hep A worked in two Waffle House restaurants in that county. It also appears that the implicated strain of the virus is spreading from Kentucky to Indiana. The Louisville Courier-Journal reports that since November 2017, Indiana has confirmed 37 cases statewide, and of those, 14 people reported visiting Kentucky before their illness onset. Indiana has not yet declared an outbreak. In California, on March 6, the Los Angeles City Council moved ahead its plan to offer Hep A vaccinations to city employees who come into regular contact with homeless people. In San Diego, where the Hep A state of emergency was lifted in January, county officials are urging those who had the first round of Hep A vaccines a few months ago to get the second shot in the series. And in Berkley, writing in the Daily Californian, health worker Finn Black said that while the outbreak has not reached Berkley, he has been involved for months in vaccination outreach in the homeless community to prepare for this possibility. He called on the city to think of the problem at a high level and for the long run: "What we don't want is temporary port-a-potties and handwashing stations that are taken away once the HAV epidemic is declared over – people need consistent access to sanitation and housing, or disease outbreaks will happen over and over again."