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

  • FDA brings about voluntary recall of coffee product with Viagra-like substance. On July 13, the FDA announced that Texas-based Bestherbs Coffee, LLC is issuing a voluntary recall of a coffee product, New of Kopi Jantan Tradisional Herbs Coffee, because it contains desmethyl carbodenafil, a chemical similar to the active ingredient in Viagra. The FDA noted in the recall notice that this "undeclared ingredient may interact with nitrates found in some prescription drugs, such as nitroglycerin, and may lower blood pressure to dangerous levels." Bestherbs had marketed the instant coffee as a male enhancement product. Both the FDA and the manufacturer said they were unaware of any health problems that may have occurred in people who ingested the product. Bestherbs said it would probably receive a few hundred to a thousand bags of the coffee product, which it would then hand over to the FDA for destruction.
  • Cook County beverage tax is in effect. The new beverage tax in Cook County, Illinois, went into effect on August 2 after a state judge rejected a lawsuit filed by the Illinois Retail Merchants Association against the tax. The penny-per-ounce tax applies to pre-packaged beverages sweetened either with sugar or artificial sweeteners. The tax covers soda, sports drinks, flavored water, energy drinks and pre-made sweetened coffee and tea with less than 50 percent milk content. Custom-made beverages, such as those made by baristas, are not covered. Also not covered are 100 percent fruit/vegetable juices; milk; beverages in which soy, rice, or similar milk substitutes are the primary ingredient; unsweetened drinks to which a purchaser can add, or request that a retailer add, sugar at the point of sale, infant formulas; medical beverages; weight reduction/therapeutic nutritional meal replacements; and any syrup or powder that the consumer combines with other ingredients to create a beverage. The retailers sued on the grounds that the tax violated the state constitution by not taxing similar products in a similar fashion, but the judge rejected that claim. The retailers have vowed to appeal. The tax is expected to bring Cook County some $200 million in 2018.
  • Many locations are taxing sugary sodas, but why are they taxing beverages without sugar? Local ordinances across the United States are targeting sugary sodas for special taxation because of the health problems associated with sugar – but why do some of these initiatives also tax diet sodas? That's the question asked in a July 24 article in Food Navigator magazine. In fact, the article points out, health policy groups like the Center for Science in the Public Interest, which generally support these new taxes, do not think they should be applied to noncaloric beverages. Other health organizations take a more neutral stance. The article said that in Cook County, supporters of the tax noted that even noncaloric beverages may pose health risks, such as cardiovascular disease, metabolic syndrome and obesity. See our recent coverage of this topic.
  • Dueling definitions of "milk" continue before the FDA and the public. On July 31, the Good Food Institute, a nonprofit organization, wrote to the FDA asking the agency to respond to the Soyfoods Association's 20-year-old petition seeking formal clarification, and potentially codication, that permits plant-based products such as soy milk to be labeled with common names such as "milk." The group wrote, "Consumers refer to soy milk as soy milk. The term clearly communicates that soy milk is a form of milk that is made from soy. Likewise, rice noodles are noodles that are made of rice, and gluten-free bread is a form of bread that does not contain gluten. FDA should provide clarity that such straightforward terms are acceptable." The same day, the National Milk Producers Federation responded by saying that despite longstanding efforts by the soy industry and others to advance the use of the term "soy milk," nothing has happened "to allow the combination of soy powder, water, emulsifiers, stabilizers, sugar, sodium and added vitamins to magically become milk." It remains undetermined whether or when the FDA will intervene in the "milk wars."
  • Trade groups file suit against New York menu-labeling rules. Trade associations that represent convenience stores and food retailers filed suit July 14 in New York federal court against New York City's health and consumer affairs departments regarding the city's intent to enforce menu-labeling requirements set to take effect on August 21. The regulations require chain retail food service establishments with 15 or more establishments nationwide to post calorie and other related nutritional information. The lawsuit argues that federal preemption prevents any state or locality from imposing food-labeling requirements that are not identical to those established by Congress and the FDA. FDA recently announced in May 2017 that the federal menu labeling compliance date is extended until May 7, 2018.
  • Mouse warning. The California Department of Public Health is confirming a case of hantavirus following exposure to mice in a state park cabin in Mono County and has reiterated its warning that hantavirus and plague can spread through contaminated food preparation surfaces. Since hantavirus was first identified in 1993, fewer than 700 cases have been identified in the US, but the disease is of concern because the fatality rate is so high – about 30 percent. Plague has become endemic in wild rodents in wilderness areas throughout the US Southwest. This is the CHPH's occupational health toolkit for reducing risk of hantavirus exposure and this is the agency's interactive map of rodent plague surveillance in California. The rodent vectors for hantavirus are deer mice and white-footed mice – not house mice. The CHPH is urging those who own buildings and closed spaces used for manufacturing or storage and shipping of food products to be aware of the potential for food to become contaminated with hantavirus or plague.
  • FDA allows health claim for macadamia nut maker. Royal Hawaiian Macadamia Nut, Inc., announced on July 24 that the FDA has approved its petition to allow a health claim that macadamia nuts can reduce the risk of coronary heart disease under some circumstances. Scott Wallace, the company's CEO, said, "This is a truly a historic day for everyone in the macadamia nut industry. Research about the benefits macadamia nuts have for heart health has existed for decades, and we've worked tirelessly to secure the legal right to share this with the masses." The FDA concluded that the daily consumption of 1.5 ounces of macadamia nuts, in conjunction with a heart-healthy diet, can reduce the incidence of coronary heart disease. The Food Institute wrote on its blog, however, that this ruling "may also open the industry up to more scrutiny from consumers who expect a certain level of transparency from their food brands. If macadamia nut producers want to move more into health claims, they may need to be ready to defend their labeling in and out of the courtroom."
  • Oral arguments to come in appeal in Peanut Corporation of America case. The US Courts of Appeals for the Eleventh Circuit will hear oral arguments in the appeal of the criminal convictions of Stewart Parnell, Michael Parnell and Virginia Wilkerson, all currently in federal prisons for their roles in the 2008-2009 outbreak of Salmonella in peanuts and peanut products. In that outbreak, thousands fell ill and at least nine people died. The subsequent food recall was one of the largest in history. Stewart Parnell, former CEO of the Peanut Corporation of America, was convicted on 67 federal felony counts and is serving a 28-year sentence; his brother, peanut broker Michael Parnell, was convicted on 29 counts and is serving a 28-year sentence; Wilkerson, a PCA executive, was convicted of obstruction of justice and is serving a five-year sentence. These are the harshest sentences ever handed down in a food-safety case. Because the record in the case is so voluminous, Food Safety News reports, the Department of Justice and the defendants’ lawyers agreed that oral arguments would be helpful to the court.
  • Will DC become the next "food court"? The US District Court for the District of Columbia may become another attractive haven for plaintiffs' lawyers filing cases against food companies for mislabeling and similar issues. A July 20 article on the law.com website noted that a case brought by DC-based nonprofit Beyond Pesticides against Mott's applesauce, was filed in DC Superior Court and removed to the US District Court for the District of Columbia. A plaintiff's lawyer was quoted as saying, 'There does seem to be a snowball effect here. [There is] growing case law and the political factor of [President Donald] Trump, and folks using the judiciary to make policy right." Historically, popular jurisdictions for private lawsuits against food companies related to alleged mislabeling and alleged false advertising have been filed in California, New York, Illinois and Florida, but because of the District of Columbia's reputation as a liberal jurisdiction, the growing case law that jurisdiction, and the presence of many liberal public interest groups there, it is becoming a popular venue for such cases.