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

  • FDA reassures public on the safety of PFAS in the food supply. On June 30, the FDA released an update to the public about its ongoing sampling and testing efforts concerning the possible presence of per- and polyfluoroalkyl substances (PFAS) in the food supply. PFAS are described as a group of over 4,000 manmade chemicals generally resistant to heat, water and oil, which have been used extensively in products such as carpets, clothing, paper packaging, fire-fighting foams and other industrial processes. PFAS are resistant to degradation in the environment. Some may bioaccumulate. Some (disputed) studies demonstrate that exposure to certain PFAS may have a detrimental health effect on human health. The FDA said in its update that its latest set of tests, involving 94 samples of a variety of foods, found that only one of the 94 – a sample of cod – had detectable levels of any type of PFAS. It said that the PFAS levels in the cod did not present a human health concern. Bills have been introduced in a number of sessions of Congress, including the current one, to ban PFAS in food items, and in addition California regulators are moving to address its presence. See some of our earlier coverage of regulatory activity addressing PFAS here.
  • Missouri joins states that continue to permit to-go cocktails. On July 8, Missouri Governor Mike Parson signed a bill into law that permits restaurants in that state to sell to-go cocktails on a permanent basis. Missouri, like many other states, relaxed its liquor sales rules early in the COVID-19 pandemic. With this development, cocktails can be sold on a to-go basis in the state as long as they are sold along with food and in tamper-proof, sealed containers intended to discourage drinking while driving. Some other states that had granted permission for to-go cocktails during the pandemic have returned to earlier prohibitions, while some states have done the same as Missouri and continued to permit them even as the pandemic winds down. See some of our earlier coverage of this story here.
  • Senators introduce Meat Packing Special Investigator Act. A bipartisan team of US senators has introduced legislation that would establish a special investigator within the USDA’s Packers and Stockyards Division to probe anticompetitive activity in the meat and poultry industry. The Meat Packing Special Investigator Act, introduced by Senators Chuck Grassley (R-IA), Jon Tester (D-MT) and Mike Rounds (R-SD), would create the Office of the Special Investigator for Competition Matters, tasked with preventing and addressing anticompetitive practices in the meat and poultry industries by coordinating with the Department of Justice and the Federal Trade Commission. That office would also serve as a bridge between the USDA and the Department of Homeland Security to safeguard the US food supply.
  • Appeals court rejects class action on labeling of honey. The US Court of Appeals for the Ninth Circuit on July 15 affirmed a decision by a US district court and ruled that as a matter of law the current labeling of Trader Joe’s Manuka Honey would not mislead a reasonable consumer. Consumers had alleged in a class action that the honey was mislabeled because it was not derived 100 percent from Manuka flower nectar. The court pointed out, however, that according to the FDA’s definition, the honey did qualify as Manuka honey because its “chief floral source” was the Manuka flower. Manuka honey is a specialized, expensive honey derived from the flowers of the Manuka bush, which is native to Australia and New Zealand. The appeals court said that a reasonable consumer would understand that no honey can ever be derived solely from one floral source.
  • Trial of former Blue Bell CEO is postponed until 2022. On July 14, the US District Court for the Western District of Texas decided to delay the criminal trial of former Blue Bell Creameries CEO Paul Kruse until March 14, 2022. Kruse is charged with fraud and conspiracy for his role in attempting to cover up a deadly 2015 Listeria outbreak that originated in the company’s ice cream. The company itself pleaded guilty in May 2020 to two misdemeanor counts of introducing adulterated food products into interstate commerce and agreed to pay $19.25 million in fines and forfeitures. That was the second-largest fine ever levied by the federal government in a food safety case. Kruse has pleaded not guilty to one charge of conspiracy and six counts of fraud. See our earlier coverage of this story here.
  • Candy company is sued because its fudge doesn’t use butter. On June 23, the Demet’s Candy Co. of Big Flats, New York became the target of a proposed class action that asserts its White Fudge Covered Pretzels are deceptively named and labeled because they do not contain fudge. The complaint says that fudge requires the presence of sugar, butter and milk and that the coating for the pretzels contains sugar, vegetable oils and milk – but no butter. The plaintiffs said they had relied on representations made by the company that the product included fudge and that they would not have paid as much as they did had they known what the actual ingredients were. In addition, the complaint noted that the consumption of vegetable oils is linked to numerous health problems, including increased chances of heart disease and increased cholesterol and that consumption of milk fats like butter does not have the same negative health effects. The complaint was filed in the US District Court for the Southern District of New York.
  • New CSPI report says soda fountain drinks have too much sugar. The nonprofit Center for Science in the Public Interest on July 8 issued a report finding that most soda fountain drinks served by restaurant chains contain more sugar than the amount recommended by the federal government for a full day. The organization looked at the quantity of sugars in full-calorie soda fountain drinks served by the top 20 restaurant chains by revenue. It found that even most “small” drinks exceed the federal Daily Value, which is 50 grams or 12 teaspoons. Most chains, the group said, contain one and a half days’ worth or more into a single “medium” or “regular” drink and two days’ worth into a “large” drink. The report suggested that state and local governments should require menus to include warning icons on items with high levels of added sugar.
  • Court declines to dismiss case on Oregon wine labeling. On July 14, a federal court declined to dismiss a case against Copper Cane Wines & Provisions of St. Helena, California concerning the labeling of its wines. Copper Cane grows its grapes in Oregon, then trucks them to California for production. In 2018, the company was ordered to stop labeling the wines in ways that implied they were produced entirely in Oregon. The company changed its labeling, but many bottles with the original labels remained in stores. A Los Angeles resident then sued the company for false advertising. Copper Cane moved to dismiss the complaint, but the Northern District of California has rejected the motion, ruling that Alcohol and Tobacco Tax and Trade Bureau approval of the new labels does not immunize Copper Cane from possible liability arising from the original labels.