This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
• Idaho ag-gag law back in court. In 2015, a federal court struck down Idahos ban on secretly recording videos at factory farms – the so-called ag-gag law that aimed to block the undercover work of animal welfare activists. In April this year, it is expected that the Ninth US Circuit Court of Appeals will hear Animal Legal Defense Fund et al v. Idaho Attorney General Lawrence G. Wasden – Idaho's appeal of that 2015 ruling. The case will turn on First Amendment issues. Steven L. Olsen, Idaho's Chief of Civil Litigation, argues that "even if otherwise qualifying for First Amendment protection, such recording is subject to the right of landowners to control the use of their property." ADLF argues that activists' clandestine recordings "warrant rigorous First Amendment protection." Iowa, Kansas, Missouri, Montana, North Carolina, North Dakota and Utah each have their own ag-gag laws.
• FDA extends comment period on use of term "healthy" in food labeling. On December 30, 2016, the FDA announced that it is extending the comment period on the use of the term "healthy" in food labeling for 90 days. Rather than end on January 26, 2017, the period will now end on April 26, 2017. "We have received requests to extend the comment period," the agency wrote. "The requests conveyed concern that the current 120-day comment period does not allow sufficient time to develop meaningful or thoughtful comments to the questions and issues we presented in the notice." The FDA announced that after the comment period ends, it will hold a public meeting on the topic. Among the questions on which the FDA is seeking comment are what types of food, if any, should be allowed to bear the term "healthy," and the nature of consumers' understanding about the meaning of the term "healthy" in connection with food.
• FDA announces that all applications for veterinary drugs now comply with its requirements. The FDA announced on January 3, 2017 that all pending applications before it for the use of animal drugs now comply with the requirements that it set forth for those drugs in 2016. Specifically, the FDA specified that all such drugs may be used only under the supervision of a licensed veterinarian and that no drugs may be used for the promotion of growth in animals. The agency wrote that it "appreciates the cooperation of the animal pharmaceutical industry for meeting its commitment to fully align all affected products" with the agency's recommendations. The agency began the process of regulating these drugs in 2013. Groups that monitor the use of animal antibiotics and their possible effect on drug resistance in humans applauded the FDA's announcement.
• Columnist urges quick action by appeals court on food cases. A January 4, 2017, op-ed article in Forbes magazine by Glenn Lammi of the nonprofit Washington Legal Foundation contends that the US Court of Appeals for the Ninth Circuit should act quickly to dismiss several food-related lawsuits pending in that jurisdiction, especially those related to the use by manufacturers of partially hydrogenated oil (PHO). PHO is a main source of dietary trans fats. In the article, Lammi sharply criticized that appeals court, writing that it "takes an especially plodding approach to hearing arguments and issuing decisions. That has held true for class actions involving food ingredients and labeling, an area where the lower courts are in desperate need of appellate court guidance. Even worse, when the Ninth Circuit has gotten around to ruling on food cases, it has often released short 'unpublished,' i.e. non-precedential, decisions."
• Consumers feel "sticker shock" from new Philadelphia soda tax. Philadelphia's new tax on sodas and other sugary drinks went into effect on January 1, 2017, and consumers are already feeling the pinch. A $1.77 gallon of sweetened tea had $1.92 in taxes added to it, for a total price of $3.69. A 12-pack of diet green tea went from $4.99 to $8.03, including the new tax. According to press accounts, there were instances in which consumers said they were changing their buying habits and purchasing bottled water instead.
• Raw camel milk in the news. The FDA in late December issued a warning to Samuel P. Hostetler, owner of Missouri-based Hump-Back Dairys, to cease distribution of raw camel milk and raw camel milk products across state lines, in violation of 21 CFR 1240.61(a). In a letter to the FDA in September 2016, representatives of Hostetler argued that the regulation, which bans interstate sales of raw milk products, did not apply to camel milk, as it only referred explicitly to "food products made exclusively or principally from the lacteal secretion obtained from one or more healthy milk-producing animals, e.g., cows, goats, sheep, and water buffalo."