Food and Beverage News and Trends | Insights | DLA Piper Global Law Firm (2023)

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

FDA chief says use of big data may help agency address Americans’ backsliding health. In an October 12 address to the National Food Policy Conference, FDA Commissioner Robert Califf said the nation’s health is now backsliding: Americans’ life expectancy is declining, while more Americans are dealing with lingering chronic diseases. The American diet, he said, has played a role in these negative trends. However, Califf noted that we now “have enormous potential as the world enters the 4th industrial revolution in which digital information is available at scale in real time with potentially unlimited storage capacity. The kinds of large-scale nutritional studies and evaluations of policy interventions that have been limited by cost and logistics are now possible. And rather than talking about matching nutrition to the needs of the individual and family-based health impact, we can now do it.”Califf said that it is therefore essential for the FDA to strengthen the study of diet and nutrition and to collect as much data as possible on these subjects in order to fulfill its mission.

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USDA proposes new changes to limit presence of Salmonella in poultry. On October 14, the USDA proposed sweeping changes in the way chicken and turkey meat is processed – changes that are intended to reduce illnesses from food contamination. Of the more than 2,500 Salmonella serotypes, the USDA noted, the Centers for Disease Control and Prevention has identified three that cause one-third of all human illnesses which are linked to chicken and turkey products, and the USDA said it proposes limiting the presence of these on poultry products. The agency is hosting a virtual public meeting on November 3, 2022, to seek input from stakeholders on the proposed framework. Salmonella bacteria, the CDC says, cause 1.35 million human infections and 26,500 hospitalizations in the United States every year. Of those infections, more than 23 percent are attributed to poultry consumption.

FDA will hold webinar this month on its proposed updating of definition of “healthy” food. On October 7, the FDA announced it will host a webinar on October 21 to provide an overview to stakeholders and the public about its proposed rule to update the definition of the nutrient content claim “healthy.” For the first time, the agency is proposing that the definition of “healthy” products should restrict the amount of added sugars that firms can include in products bearing the “healthy” claim. The agency already restricts the amount of sodium and saturated fat in so-called healthy products. As it revises its definition, the FDA is also researching the effectiveness of a symbol that food companies can use on the front of the package to show that the food meets the “healthy” definition. See our alert on the proposed rule.

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FDA and CDC renew partnership to strengthen food safety in retail environments. On October 4, the FDA and the Centers for Disease Control and Prevention entered into a memorandum of understanding intended to help reduce the occurrence of foodborne illness in retail and food-service establishments. The FDA said the MOU will help increase the consistency and capacity of retail food protection programs across the country, promote a general culture of food safety, and facilitate continued communication between the FDA and the CDC in order to assist its state, local, Tribal, territorial, and industry partners. The FDA pointed out that in the past, its collaboration with the CDC has helped inform the FDA’s work on the Food Code, which serves as a model for safeguarding public health and ensuring that food is unadulterated.

Coalition of consumer, industry and government groups urges major restructuring of FDA food programs. On October 4, a coalition representing a broad array of consumer, industry and government groups wrote to Jane Henney, chair of the Independent Expert Panel – FDA Human Foods Program of the Reagan-Udall Foundation, calling for the FDA’s food oversight functions to be broadly restructured in “a significant culture change that would allow for a focus on illness prevention with improved governance, accountability, and transparency.” The letter reiterated an April proposal to Commissioner Robert Califf to “create an empowered deputy commissioner for food position that would lead a unified foods program.”While such a new position would not solve every problem, the letter said, “it would bring focused leadership and accountability, and a unified structure that clearly establishes internal roles and responsibilities and strengthens the program’s ability to dialogue effectively with its many internal and external stakeholders.”

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Consumer groups’ suit seeks federal labeling requirement for alcoholic beverages. On October 3, a coalition of three consumer groupsthe Center for Science in the Public Interest, the Consumer Federation of America, and the National Consumers League – sued the US Department of the Treasury to try to force the federal government to institute a comprehensive labeling requirement for all alcoholic beverages. While most foods and beverages are regulated by the FDA, alcohol labels are usually regulated by Treasury, which houses the Alcohol and Tobacco Tax and Trade Bureau. The proposed mandatory label would set out alcohol content, calorie, ingredient, and allergen information. The three consumer groups, as well as 66 other organizations and eight individuals, among them four deans of public health schools, filed a petition seeking this kind of labeling back in 2003. In 2005 and 2006, the bureau accepted comments on the issue, but a proposed label has never been finalized. In 2013, the bureau allowed the voluntary use of a “Serving Facts” label. Sally Greenberg, executive director of the National Consumers League, said, “We hope that our lawsuit will bring about the kind of robust labeling of these products that consumers have come to expect on every other food and beverage item they consume.”

Former Blue Bell Creamery head will face a new criminal trial. Former Blue Bell Creamery president Paul Kruse will be tried for a second time in a Texas federal court next April for his actions in 2015 during a deadly listeria outbreak that shut Blue Bell down and led to the recall of all its ice cream products. Earlier this year, a federal jury was unable to reach agreement on Kruse’s fate – that case ended in a mistrial. The charges against Kruse involve his alleged suppression of key information about the outbreak as it was continuing. The company itself pled guilty to two counts of distributing adulterated food products in violation of the Federal Food, Drug, and Cosmetic Act and agreed to pay nearly $20 million in criminal penalties to resolve False Claims Act allegations regarding ice cream products manufactured under unsanitary conditions and sold to federal facilities.

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No early release for former peanut executive.Stewart Parnell, former CEO of the Peanut Corporation of America,will likely not get out of prison until 2038. On October 17 the District Court for the Middle District of Georgia denied Parnell’s motion to vacate his sentence. Parnell has been seeking release via a so-called Motion 2255, a Writ of Habeas Corpus, alleging that the attorneys originally representing him and his brother Michael were incompetent. The court flatly rejected this contention. In 2015,Parnell was sentenced to 28 years in federal prison for knowingly selling salmonella-tainted peanut products, and his brother Michael Parnell, a peanut broker, was sentenced to 20 years. The Parnells’ actions resulted in a massive nationwide salmonella outbreak in 2008 and 2009 linked to hundreds of illnesses and the deaths of 9 people; it led to one of the largest food recalls in US history. Their sentences are the harshest ever handed down in a food safety case. Prosecutors had sought life in prison for Stewart Parnell, who was convicted of more than 70 criminal charges. The brothers remain incarcerated in federal prison – Stewart in West Virginia and Michael in New Jersey. A final decision on Michael Parnell’s Motion 2255 is to come.

California’s Proposition 12 faces test in US Supreme Court. On October 11, the US Supreme Court held oral arguments in a case targeting California’s Proposition 12, which prohibits the sale in California of pork, eggs, veal, and other animal products in that state if the products come from farms using caged systems, regardless of what state the farms are in. The National Pork Producers Council is arguing that the California law violates the US Constitution’s so-called Dormant Commerce Clause because it discriminates against out-of-state commerce. Proponents of the law say that it is simply designed to set standards for foods sold in California, while opponents of the law say that it serves as a road map for legislators in both red and blue states to export their moral judgments across state lines. The challenge to the proposition failed in the lower federal courts.

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Court blocks enforcement of Arkansas food labeling law, deems it unconstitutional. On October 11, the District Court for the Eastern District of Arkansas issued an order finding an Arkansas food labeling law unconstitutional and permanently blocking its enforcement. The lawsuit had been brought by Turtle Island Foods, manufacturer of Tofurky products. The law held that food manufacturers could not use any terminology commonly associated with meat to describe their product unless the product came from harvested or domesticated animals. The court found that Arkansas could not bar Tofurky from using words like “sausage,” “hot dog” and “burger” when accompanied by terms like “vegan” or “plant-based,” ruling that the challenged provisions of the Arkansas law unconstitutionally limited Tofurky’s commercial free speech rights. It further found one provision of the law to be unconstitutionally vague on its face and prohibited its enforcement statewide, ensuring that it cannot be used to prosecute other plant-based food companies. Joining Turtle Island Foods in the case were the Good Food Institute, the Animal Legal Defense Fund, and the American Civil Liberties Union.

California’s Proposition 12 faces test in US Supreme Court. On October 11, the US Supreme Court held oral arguments in a case targeting California’s Proposition 12, which prohibits the sale in California of pork, eggs, veal, and other animal products in that state if the products come from farms using caged systems, regardless of what state the farms are in. The National Pork Producers Council is arguing that the California law violates the US Constitution’s so-called Dormant Commerce Clause because it discriminates against out-of-state commerce. Proponents of the law say that it is simply designed to set standards for foods sold in California, while opponents of the law say that it serves as a road map for legislators in both red and blue states to export their moral judgments across state lines. The challenge to the proposition failed in the lower federal courts.

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Will added-sugar warnings impact parent choices for their kids’ drinks?Added-sugar warnings, especially those that disclose added-sugar content in teaspoons, may reduce parents’ purchases of high-added-sugar beverages for their young children, according to research published October 13 in the medical journal JAMA Network Open. Researchers from the Harvard T.H. Chan School of Public Health, the Center for Science in the Public Interest, the Perelman School of Medicine at the University of Pennsylvania, and the Johns Hopkins Bloomberg School of Public Health assessed the effects of five front-of-package disclosures on high-added-sugar fruit drinks commonly purchased by households with children. They especially looked at 100 percent vitamin C claims, images of fruit, disclosures about percentages of juice and teaspoons of added sugar, and warnings about high added sugars. The purchasing changes were primarily attributed to parents switching from fruit juices to watered-down fruit juices with no added sugars.

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