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

Groups file petition with FDA to mandate front-of-package food labeling. The Center for Science in the Public Interest, along with the Association of SNAP Nutrition Administrators and the Association of State Public Health Nutritionists, on August 5 petitioned the FDA to establish a front-of-package labeling system for all packaged foods sold in the United States. Consumers should be able to tell at a glance whether a food or beverage is high in added sugars, sodium, and saturated fat, the regulatory petition said. The new labeling system would replace the current Nutrition Facts on food packaging. “Current food labels create confusion and fail to provide important, useful information to consumers,” said Senator Richard Blumenthal (D-CT), who is among sponsors of legislation that would require the FDA to mandate front-of-package nutrition labeling. The senator added, “The FDA can and should take action to update our food labels, putting essential nutrition information front-and-center and giving people the tools they need to make healthier choices.”

USDA proposes defining standards for organic livestock and poultry. On August 5, the USDA’s Agricultural Marketing Service announced its plans to put into effect a proposed rule that would define the standards for organic livestock and poultry. The agency proposed new requirements for the living conditions, care, transport and slaughter of organic livestock and poultry. “This proposed Organic Livestock and Poultry Standards rule demonstrates USDA’s strong commitment to America’s organic producers,” said Agriculture Secretary Tom Vilsack. “We encourage producers, processors, and consumers to submit written comments about the rule so that we can work together to create a fairer, more competitive, and transparent food system.” The USDA added that the rule, which will be subject to a 60-day comment period, would promote a fairer and more competitive market for organic livestock producers by making sure that all certified USDA livestock products are produced under the same standard.

FDA issues guidance on compliance with its egg rule. On August 10, the FDA issued a final guidance for shell egg producers on how to comply with certain provisions in its final rule that is intended to prevent Salmonella contamination in shell eggs during production, storage and transportation – a rule known as the “egg rule.” This is the fourth such guidance on the egg rule. The purpose of the guidance is to help egg farmers comply with the rule even when they allow their hens access to areas outside the poultry house. The guidance emphasizes that egg producers can provide laying hens with access to areas outside the poultry house– including porches, outdoor runs and pastures – and still be in compliance with the egg rule. In order to be compliant, however, egg producers must take steps to ensure there is no introduction or transfer of Salmonella into or among poultry houses, and the guidance explains how to accomplish this.

Mistrial in Blue Bell listeriosis case. The criminal trial of Paul Kruse, the former CEO of Blue Bell Foods, has ended in a mistrial. On August 15, the jury advised the court that they were hopelessly deadlocked, and the judge, after polling the jurors, declared a mistrial. Kruse was charged with felony conspiracy and wire fraud in an attempt to cover up a deadly Listeria outbreak in 2015 arising from Blue Bell products. Reports indicate the trial jury split 10 to 2; the majority voted to acquit. It is unclear whether prosecutors will seek a new trial.

Keurig agrees to settle class action on recyclability of its K-Cups. As part of a class action settlement approved by a federal judge in July 2022, Keurig agreed to pay a total of $10 million to consumers who purchased its coffee K-Cups during an approximately six-year period ending August 8. The payments are intended to compensate a class of consumers who claim that the company misled consumers about the recyclability of K-Cups. The plaintiffs had alleged that the cups are too small to be recycled by most factories and that they often end up in landfills. They contended that they and other consumers wouldn’t have purchased the cups and would have sought out a recyclable, compostable or reusable alternative if they had known the truth. Keurig had responded that a reasonable consumer would not believe that the cups were fully recyclable, but its motion to dismiss the case was denied.

Grain shipments from Ukraine. European Commission Vice President Joseph Borrell said August 4 that a world food and energy crisis has been caused by Russia’s invasion of Ukraine and its blockade of grain exports from that country – not by worldwide sanctions against Russia. His remarks followed the departure from a Black Sea port of a Ukrainian vessel as part of a United Nations initiative to alleviate the food crisis. At this writing, 16 ships have left Ukrainian ports as part of this Black Sea Grain Initiative, carrying 500,000 tons of foodstuffs to nine countries. The initiative, achieved through a landmark deal brokered in July by Turkey and the United Nations, aims to lower prices of essential foods and ease the global food crisis, especially in the hardest hit, poorest parts of the world.

Consumers seem unfamiliar with the idea behind a “carbon neutral” label. According to a survey by Morning Consult released on July 26, a majority of consumers are not familiar with the concept of carbon neutrality in their foods and beverages. Of 2,210 US adults surveyed about whether they buy products with a carbon-neutral label, 52 percent said they had not seen this label, while only six percent said they always bought products with this label and 14 percent said they sometimes did. Another 14 percent said they rarely picked such products, and nine percent said they never did. In addition, the same survey group was shown three alternative definitions of carbon neutrality and asked to identify the correct one. Only 41 percent of them chose the correct definition, while 29 percent picked incorrect definitions and 30 percent said they did not know the answer.

Is it time for the US food industry to adopt standardized “sell-by” or “best-by” dates? According to an August 12 Wall Street Journal report, many supermarket companies in the United Kingdom are reducing their use of “sell-by” and “best-by” labels, and US stores may not be far behind. In the UK, companies now hope that consumers will use their best judgment in deciding whether to throw out milk, produce and other perishables, rather than simply tossing them if they’re past the date on a label. Unlike the UK, the US has no federal law concerning date labels for food, other than baby food. But the article says that federal agencies, trade groups and some politicians are pushing for companies to discontinue using a wide range of labels with unclear meanings and instead come up with common label standards that consumers will understand. In the US, the FDA in 2019 urged the food industry to adopt a single, standardized “best if used by” label on items that are safe to consume even if their taste or smell may have deteriorated.