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

  • Commentator says “food addiction” is a misleading term that should not be used in food debates. Is there such a thing as a food addiction? First Lady Michelle Obama has used the term to support federal regulation of sugary and salty snacks. But Glenn Lammi, chief counsel of the Washington Legal Foundation, commented in an op-ed in Forbes that the term is scientifically inaccurate and meaningless, drawing attention away from the real problem of obesity in America and giving people a “moral hazard” excuse to not change their health habits. Lammi, in his September 30 article, says the term is being used simply to “demonize” unhealthy products.
  • CSPI recommends changes in food supplied by vending machines on public property.The Center for Science in the Public Interest, in a release dated October 2, urged federal, state and local governments to provide healthy food in vending machines on their property. A new study by the organization of 853 vending machines on 260 state and local public properties found that 58 percent of the drinks sold were sugary sodas and that the machines were mostly stocked with soda, candy, chips, cookies, snack cakes and other sweet baked goods. California and several other jurisdictions have already started to remove high-fat snacks from vending machines on their properties.
  • Wal-Mart moves to dismiss class action on cranberry pomegranate juice. On October 2, Wal-Mart filed a motion to dismiss a class action filed against it in federal court in Florida for allegedly deceptively marketing its Great Value brand cranberry pomegranate juice. Wal-Mart is asserting that the plaintiffs’ state law claims are preempted by the federal Food, Drug, and Cosmetic Act (FDCA), as modified by the Nutrition Labeling Education Act, which expressly preempts any state law claim that would impose food labeling requirements not identical to those of the FDCA. Wal-Mart says the product is a “flavored juice blend” that contains apple and grape juices and follows all federal regulations for labeling.
  • Federal judge remands case against Bumble Bee Foods to state court. On October 16, a federal judge in California declined to dismiss a class action accusing Bumble Bee Foods of misrepresenting its tuna and other products as “rich in natural Omega-3” and instead remanded the case to California state court. In 2012, a consumer sued Bumble Bee in federal court, saying the company’s statements about its Omega-3 content were similar to those the FDA has rejected in other cases as violative of labeling laws. That case was dismissed, but in 2014 the case was refiled in state court, limited to California consumers. Bumble Bee sought removal to federal court. US District Judge Lucy Koh granted the plaintiffs’ motion to remand the case to state court and denied as moot Bumble Bee’s motion to dismiss or stay the lawsuit.
  • FDA says produce safety rules will take longer than expected. At an October 17 Produce Marketing Association Fresh Summit workshop in Anaheim, California, Food and Drug Administration officials said the process of writing new food safety regulations for the produce industry will not be completed by the end of 2015, even though the agency had set that as its deadline. The officials said the project, which involves education and dialogue between government and industry, will go on past the end of next year. Supplemental rules for the project carry a comment period that ends in mid-December 2014. These rules deal with setting microbial standards for agricultural water, clarifiying which operations are subject to the produce safety rule, relaxing the raw manure rules and changing exemptions from the produce safety rule.
  • CSPI and Pew take aim at poultry inspection rules. The Center for Science in the Public Interest and The Pew Charitable Trusts issued a report on October 20 that is sharply critical of USDA rules on poultry inspection that just went into effect. “While CSPI supports modernizing meat and poultry inspection, USDA has adopted an incomplete solution without the scientific backing necessary to assure consumers that poultry will carry fewer hazards, like Salmonella and Campylobacter,” Caroline Smith DeWaal, food safety director at CSPI, said. The rules, which allow poultry processors to opt into the new inspection system, have drawn flak because some say the USDA adopted them without engaging in a comprehensive review and assessment of alternative approaches to modernizing the inspection system.
  • Organic producers and consumer advocates face off over chocolate milk ingredient. The latest dispute over the USDA’s definition of “organic” food relates to chocolate milk. Large organic dairy producers use a substance called gellan gum to prevent the chocolate flavoring from separating from the milk in the grocery store refrigerator. Consumer advocates say this thickening agent is not needed and that it should not appear on the list of synthetic materials allowed in “organic” foods. The issue will come up at the next regular meeting of the National Organic Standards Board in Louisville on October 28-30. The 15-member board has the task of advising the Department of Agriculture’s National Organic Program.