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

  • Study shows decline in soda consumption in Philadelphia in wake of new tax. A study published online April 12 in the American Journal of Preventive Medicine by researchers at Drexel University found what the authors called a notable effect of Philadelphia's tax on sugary beverages. The tax went into effect in January 2017, and within two months, residents of Philadelphia were about 40 percent less likely to be drinking soda and similar beverages than were people living elsewhere, and they were 58 percent more likely to drink bottled water. However, the decrease did not apply to sweetened fruit beverages, which are taxed like soda under the law, possibly because consumers still regard those fruit drinks as more nutritious. A court challenge to the tax by the American Beverage Association and the Pennsylvania Food Merchants Association is continuing and is awaiting argument before the state's highest court.
  • StarKist is sued over heart association's logo on its products. A proposed class action complaint filed in the US District Court for the Northern District of New York on April 4 alleges that the American Heart Association's "Heart-Check Mark" logo on StarKist tuna products is deceptive because the association does not disclose that the logo is actually a paid endorsement. The plaintiff in the suit against StarKist said that the presence of the logo creates the misleading impression that StarKist products are more healthful than other brands of tuna. A spokesperson for the heart association responded that the logo is only given to products that meet the high health standards of the FDA and the association itself. Concerning the financial arrangements, the spokesperson said, "Participating food manufacturers pay administrative fees per product to cover program operating expenses. Revenues cover the expenses of the program itself, which include product testing and certification, program management and oversight, legal and contract fees, program marketing and staff resources."
  • USDA decides to continue to permit carrageenan in organic products. The USDA has decided to continue to allow carrageenan as an ingredient in organic products, even though carrageenan itself is not organic. The agency wrote in the Federal Register on April 4 that public comments convinced the department that fully effective organic substitutes for carrageenan do not exist. The National Organic Standards Board, which advises the USDA, had recommended that carrageenan be removed from the list of permitted ingredients, pointing to substitutes like guar gum and xanthan gum. Carrageenan, which is extracted from seaweed, is used as an emulsifier in such foods as ice cream and high-protein drinks. Many established manufacturers of organic products had urged the USDA to reject the Standards Board's advice and to continue to permit the use of carrageenan in products with the organic label.
  • Romaine warning. The CDC has expanded its warning about romaine lettuce contaminated with E.coli and grown in the Yuma, Arizona region to cover all types of romaine – "whole heads and hearts of romaine lettuce, in addition to chopped romaine and salads and salad mixes containing romaine." Moreover, the CDC adds that because labels often do not list the location of origin of produce, "Consumers anywhere in the United States who have any store-bought romaine lettuce at home should not eat it and should throw it away." As of this writing, 53 people in 16 US states have fallen ill with the implicated strain of E.coli, and 35 of them have been hospitalized – almost 60 percent, twice the usual rate for E. coli outbreaks. Investigators have been unable to pinpoint a specific source of the tainted romaine – no particular brand, supplier, distributor or grower. On April 25, Food Safety News reported that the investigation is being stymied by "a lack of traceability information from romaine lettuce growers and their customers" leaving investigators searching through a supply chain quagmire. On April 17, a New Jersey woman who had been hospitalized for two weeks with E.coli sued Panera Bread and Freshway Foods, alleging that she fell ill after eating romaine supplied by Safeway to Panera. On April 14, grocer Giant Eagle recalled all its cobb, garden and caesar salads, "acting out of an abundance of caution" although no illnesses have been linked to its products. The romaine growing season in Yuma is nearly over – at this point, most romaine sold in the US is beginning to come from California.
  • Olive oil producer agrees to settle class action on its labeling and production processes. On April 3, Deoleo USA, the manufacturer of Bertolli olive oil, settled a class action filed against it in 2014 by agreeing to pay $7 million and to change its packaging and testing protocols. The complaint alleged that the company misrepresented its products by labeling them as "imported from Italy" and also questioned whether the oil could actually be considered "extra virgin" after being exposed to sunlight and heat and being subjected to further degradation while sitting on store shelves. The company has already stopped using the phrase "Imported from Italy" on its products and has agreed not to use that or any similar phrase unless the oil is made entirely from olives grown and pressed in Italy. In addition, it is now bottling its olive oil in dark green bottles and is shortening its "best by" period in order to ensure that the oil's quality is not degraded. The settlement was filed in the US District Court for the Northern District of California.
  • Hep A in the news. The nationwide outbreak of Hepatitis A continues to expand. Many of the most significant recent developments involve infected food service workers – in Michigan, Utah, Indiana and Kentucky. In the Louisville, Kentucky area, officials have been striving to stay ahead of the outbreak for months. They are reminding the public that people can be ill and shedding the virus for as long as two weeks before experiencing any symptoms and are urging everyone to get vaccinated. More than 14,000 people have been vaccinated in that area this year; some media outlets are noting that many Kentuckians cannot afford the typical $25 per shot fee. The Kentucky outbreak has infected more than 300 people and at least three have died. In Michigan, more than 800 have fallen ill, and at least 25 have died. And finally, on April 24, the principal of Royal Oak High School in Michigan sent parents a letter informing them that a student has been diagnosed with a confirmed case of Hepatitis A and advising: "Please watch your child for any symptoms of Hepatitis A over the next several weeks. If your child develops Hepatitis A, they should be kept home."
  • USDA grants extension of time for comment on "meat" definition. On April 19, the USDA's Food Safety and Inspection Service granted a request by the North American Meat Institute (NAMI) for an extension of the deadline for comment on a petition filed by the United States Cattlemen's Association to define the terms "beef" and "meat." The cattlemen's group wants the USDA to make a rule declaring that plant products, as well as cell-cultured products derived from animals, are excluded from the federal definitions of "beef" and "meat" and cannot legally be called by those names. In its request for the deadline extension, the NAMI wrote, "The regulation of alternative protein products, both plant-based and lab cultured, animal based, is a topic of great interest among Meat Institute members and the packer and processor community generally. These new, emerging products must be regulated appropriately to ensure they are not only wholesome and safe for consumption, but also labeled and marketed in a manner that ensures a level playing field in the marketplace."
  • Baltimore: water, milk and juice to be default offerings on kids' menus. On April 19, Baltimore Mayor Catherine Pugh signed a bill that requires restaurants in that city to offer water, milk and 100 percent juice as the default options for drinks in all kids' meals. Customers will still be able to order other drinks, such as sodas, upon request, but menus should specify water, milk and juice as the default. With this legislation, Baltimore becomes the 10th and the largest US city to pass legislation of this type. The legislation was supported by the state health department and by Sugar Free Kids Maryland. Many large restaurant chains, such as McDonald's, Burger King, Wendy's, Dairy Queen, IHOP and Applebee's, have already removed sugary drinks from their kids' menus.
  • GAO recommends additional safeguards against food contamination. The Government Accountability Office wrote in an April 18 report that the USDA's Food Safety and Inspection Service should prioritize better documentation, add timelines to its list of tasks and better regulate the use of on-farm practices to reduce Salmonella contamination. The GAO noted that although the food supply is generally safe, Salmonella and other illnesses remain a problem. The study was conducted at the request of US Senators Dianne Feinstein (D-CA), Richard Durbin (D-IL) and Kirsten Gillibrand (D-NY). The senators sent the GAO report and four additional questions to Secretary of Agriculture Sonny Perdue, seeking a response by May 7.