Food and Beverage News and Trends
This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- Suspend imports of fresh beef from Brazil, US cattle group says. On November 12, the Denver-based National Cattlemen’s Beef Association (NCBA) sent a letter to US Agriculture Secretary Tom Vilsack calling for the immediate suspension of fresh beef imports from Brazil. This would restore a suspension of such imports which ended in early 2020. Brazil’s inspection of beef, the NCBA says, does not meet US inspection standards nor the scientific and transparency standards of the international community; the NCBA particularly pointed to concerns about bovine spongiform encephalopathy, the incurable, fatal disorder popularly nicknamed mad cow disease. “NCBA has long expressed concerns about Brazil's history of failing to report atypical BSE cases in a timely manner,” said NCBA Vice President of Government Affairs Ethan Lane. “It’s time to keep fresh Brazilian beef out of this country until USDA can confirm that Brazil meets the same consumer and food safety standards that we apply to all our trade partners.”
- USDA extends comment period on cell-cultured meat. On November 12, the USDA’s Food Safety and Inspection Service announced an extension of the period for public comment on the labeling of meat and poultry products produced from cultured cells derived from animals under the department’s jurisdiction. The department will use these comments to inform future regulatory requirements for the labeling of such food products, which are not yet on the market. The extension ended December 2. The department said, “This extension should provide interested stakeholders sufficient time to submit comments and information regarding the labeling of meat and poultry products comprised of or containing cultured cells derived from amenable livestock and poultry. The public will also have an additional opportunity to comment on these issues during future rulemaking.”
- Nonprofit group urges action on food priorities by FDA nominee. On November 12, the nonprofit Center for Science in the Public Interest (CSPI) acclaimed President Joe Biden’s nomination of Dr. Robert Califf to head the FDA. In doing so, the group called for the new commissioner, once he is confirmed, to act on several food priorities. Noting that “excess sodium in the diet promotes hypertension, heart disease, and early death,” it urged action on the FDA’s voluntary sodium reduction goals. The group also observed that “improving food labels and using new labeling tools – such as mandatory front-of-package symbols – would help Americans reduce their risk of diet-related disease by making it easier to select healthy foods” and urged the new commissioner to act in that area.
- Onion recall continues to expand. A recall of onions which began in September after diners in several states fell ill is expanding yet again. On November 23, two importers new to the recall – Potandon Produce of Idaho Falls, Idaho and Alsum Farms & Produce, Inc. of Friesland, Wisconsin – are voluntarily recalling an array of onions. Implicated in the overall recall are white, yellow, and red onions, sold both loose and bagged, under various brands, to groceries, institutions, and restaurants. The common factor among all the recalled onions is their origin in the state of Chihuahua, Mexico. As of this writing, almost 900 people in 38 states and the Commonwealth of Puerto Rico have fallen ill, and 138 have been hospitalized. See our earlier coverage of this recall.
- Case against King’s Hawaiian is thrown out. On November 8, a lawsuit alleging that King’s Hawaiian Holding Co. misleads consumers about the source of its sweet rolls was dismissed in the US District Court of the Northern District of California. The court found that a reasonable consumer would not believe merely from the name of the company and the packaging that the rolls, manufactured in Torrance, California, are made in Hawaii with traditional Hawaiian ingredients. Two consumers had brought a purported class action alleging that the packaging of the rolls is misleading. Their main points were that the package includes the phrase “Est. 1950, Hilo, Hawaii” and a crown logo that they say resembles the crown of a pineapple. “Plaintiffs believed the Product is currently made in Hawaii. Further, plaintiffs believed that the Product contained ‘Hawaiian ingredients,’ including pineapple juice, honey, and sugar,” the suit said. The judge pointed out that neither pineapple nor honey was found on the list of ingredients and that the California source was clearly stated.
- Meadow Gold is sued over its Hawaii operations. On November 24, a food supplier based in Hawaii filed a lawsuit against Hawaii-based Meadow Gold Dairies claiming that the company is falsely marketing its milk sold in Hawaii, which comes from the mainland, as a local Hawaiian product. The lawsuit was filed in the US District Court for the District of Hawaii. Chad Buck, the head of the Hawaii Foodservice Alliance, which brought the case, says that Meadow Gold’s milk is shipped to Hawaii from California – but that Meadow Gold’s advertising and labeling are deceptive and lead consumers to believe that they are purchasing milk that is produced on the islands. The packaging and advertising for Meadow Gold products include the phrases “Hawaii’s Dairy” and “Made with Aloha.” “We have never claimed that all our milk is local, but we do consider ourselves Hawaii’s Dairy because we are committed to Hawaii and its community and will continue to be while we work toward building a more sustainable operation,” Meadow Gold said in a statement.
- Plant-based producers take new approach in suit over Oklahoma labeling law. A new strategic approach is livening up a lawsuit seeking to invalidate Oklahoma’s Meat Consumer Protection Act. Under the law, manufacturers of products like Tofurky that imitate meat products but are made from plant sources may use words like “beef” or “meat” on their labels, but must indicate in font that is the same size as the product name that the products are plant-based and not derived from animals. On November 9, Turtle Island Foods, the maker of Tofurky, replaced Upton’s Natural as the manufacturer plaintiff in the case and filed a new complaint drawing on an array of constitutional grounds, alleging that the law, which focuses on labeling, imposes "additional burdensome, impractical, and unclear disclosure requirements on plant-based meat producers that go beyond federal law." The new complaint argues that with this law, Oklahoma is violating FDA regulations governing product labeling; creating new rules when there is no legitimate consumer confusion; and adding to a conflicting nationwide patchwork of state laws. Tofurky is partnering with the Animal Legal Defense Fund and the Plant-Based Foods Association in the lawsuit.
- Golden Butter crackers lawsuit dismissed. On November 9, the US District Court for the Southern District of New York dismissed a proposed class action against Pepperidge Farm, Inc., concerning the packaging of the company’s Golden Butter crackers. The plaintiff had contended that the crackers’ packaging was misleading or deceptive: while the product does in fact contain butter, the complaint said, consumers who see the packaging are misled into thinking that they are buying “a cracker which is all or predominantly made with butter.” According to the complaint, the crackers also contain vegetable oils. The court found that the ingredients list for the product confirmed that butter predominated over other oils and fats and that “a reasonable consumer could believe the phrase ‘Golden Butter’ refers to the product’s flavor and was not a representation about the ingredient proportions.”
- Salt is a preservative – but what does that mean for labeling? On November 19, Del Monte Foods, Inc., was sued in a US district court because it allegedly engages in false advertising in claiming that its Farmhouse Cut Green Beans contain no preservatives when they in fact contain salt, which is a preservative. The proposed class action, which was filed in the US District Court for the Southern District of Illinois, alleges violations of Illinois consumer laws and federal warranty laws. According to the complaint, Del Monte is charging a premium price for the product while attempting to appeal to a set of consumers, such as the named plaintiff, who are increasingly seeking foods without preservatives. In addition to its use as a flavoring, salt has been used as a preservative in some foods for millennia.
- Harvard study: for heart health, use less sodium, more potassium. Lower consumption of sodiumis associated with lower risk of cardiovascular disease in most populations, including in the US, a new study conducted at the Harvard School of Public Health and published on November 13 in the New England Journal of Medicine has concluded. The researchers found that higher sodium intake, as measured by multiple 24-hour urine samples, was significantly associated with higher cardiovascular risk. Every 1,000 mg-per-day increase in sodium excretion was associated with an 18 percent increased risk of cardiovascular disease; in contrast, for every 1,000 mg-per-day increase in potassium excretion, the risk of cardiovascular disease was 18 percent lower. Potassium, the researchers noted, can help relax blood vessels and increase sodium excretion while decreasing blood pressure. Rich sources of potassium include fruits, leafy greens, beans, nuts, dairy foods, and starchy vegetables like winter squash, the article said. You may also be interested in our recent note on a massive study in China that came to similar conclusions, Using salt substitute cuts stroke risk, study finds.
- CSPI seeks to limit soda to the soda aisle. On November 3, the nonprofit Center for Science in the Public Interest (CSPI) launched a consumer campaign titled “Keep Soda in the Soda Aisle.” The idea behind the campaign, according to the group, is to get the nation’s top 20 grocery chains and major soda companies to “stop tempting customers with sugary drinks at every turn and threatening community health.” The grassroots campaign is intended to keep soda and other sweet drinks in one place in a store, rather than at the ends of aisles, checkout lanes and miscellaneous displays. “We encourage businesses to listen to the voices of their customers and create the healthier shopping environment they demand,” said Sara John, the senior policy scientist at the group. “CSPI stands ready to work with them to limit soda to the soda aisle, and to replace sugary drinks with healthier alternatives throughout the stores.”