Food and Beverage News and Trends - September 8, 2023

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

HHS to DEA: reclassify marijuana to Schedule III. In a non-public letter sent earlier this week, the US Department of Health and Human Services recommended to the US Drug Enforcement Administration that marijuana be re-classified under the Controlled Substances Act from Schedule I to Schedule III. The recommendation is a step towards changing the legal status of marijuana, which was originally classified Schedule 1 in 1971. Moving marijuana from Schedule I to Schedule III would change the cannabis industry landscape in many ways. Our Cultivate blog post, HHS to DEA: marijuana should be Schedule III – what this means for the cannabis industry, tells you more.

FDA names new deputy commissioner for human foods. The FDA has named James Jones as its deputy commissioner for human foods, a new role created by the agency in its ongoing reorganization. Jones, who has spent more than 30 years at the Environmental Protection Agency, will have the responsibility of setting and advancing priorities pertaining to food safety and innovative food products, including those from new agricultural technologies. Jones was a member of a panel convened by the Reagan-Udall Foundation that conducted an evaluation of the agency’s response to the infant formula crisis and recommended structural changes to its food program. “Our proposed reorganization is the largest undertaking of its kind in recent history for our agency,” said FDA Commissioner Robert Califf. “Under Jim’s leadership, we will build a stronger organization that will be integrated with other components of the FDA and focused on keeping the foods we regulate safe and nutritious, while ensuring the agency remains on the cutting edge of the latest advancements in food science and nutrition.”

EPA rejects a call to further regulate animal feeding operations. The EPA has rejected two petitions that called on the agency to impose stricter regulation on CAFOs – concentrated animal feeding operations. The petitions had originally been submitted by environmental and animal rights groups in 2017 and 2022. Instead, the agency announced on August 15 that it will establish a federal advisory committee to study the matter. The pork industry and other food industries expressed support for the rejection. “America’s pig farmers applaud the Environmental Protection Agency and the Biden Administration’s denial of two baseless petitions seeking dramatic changes to long-standing and well-designed regulatory systems to protect the environment and provide affordable food for the world,” said Scott Hays, a Missouri pork producer who is the president of the National Pork Producers Council. The EPA said it will form a federal advisory subcommittee on the topic in 2024.

New resource for importers seeking to participate in the Voluntary Qualified Importer Program. The FDA has added additional information on its website to help importers seeking to avoid unexpected delays at US points of import entry for their shipments of human and animal foods. The Voluntary Qualified Importer Program expedites the review and import entry process. Participating importers must pay a user fee (covering the agency’s administrative costs) and must meet eligibility criteria.

Canadian food regulators clamp down on contaminated lettuce. Several outbreaks of E.coli illness have been associated with romaine lettuce imports from producers located in a particular geographical area in the United States encompassing the California counties of Santa Cruz, Santa Clara, San Benito, and Monterey. The Canadian Food Inspection Agency (CFIA) has responded by enacting temporary license conditions for any romaine lettuce imported from the United States. The conditions differ based on where the lettuce originates. The CFIA has stated that these temporary license conditions will be required from September 28, 2023 to December 20, 2023.

ECCC notice addresses environmental impact of food packaging. Environment and Climate Change Canada (ECCC) is proposing a Pollution Prevention Planning Notice (P2 Notice) that aims to reduce the environmental impact of primary food packaging – that is, plastic packaging that comes into direct contact with food. This proposal targets parties who have the most control over the sale, design, and marketing of plastic-packaged foods, thereby exempting small businesses from the plan’s requirements. The P2 Notice would apply to persons who generate grocery retail sales in Canada over $4 billion annually, as well as persons who operate a chain of supermarkets, grocery stores, supercentres, and/or warehouse clubs engaged in retailing grocery products. The ECCC has advanced this proposal in response to concerns over plastics littering public spaces, as well as the Government of Canada’s intention to move towards zero plastic waste. By implementing requirements on the applicable parties to meet certain targets established by the Minister, the P2 Notice would seek to ensure that plastic food packaging is designed to be reused, recycled, or composted. Interested parties were invited to comment on the proposal until August 30, 2023.

FDA is looking at possible change to orange juice standard of identity. The FDA said on August 16 that it is considering changing the standard of identity for pasteurized orange juice to lower the beverage’s minimum Brix level from 10.5 percent to 10 percent. Brix levels indicate the percentage of soluble solids in a liquid; they are often used to measure the dissolved sugar content in beverages. This change has lately been a priority of Florida citrus growers, who say that the average Brix level of their product has declined since the standard was first set 60 years ago, in part because citrus greening disease has spread to nearly every orange grove in Florida, affecting crop yields, and because weather impacts of climate change have also reduced crop yields and reduced sugar content. In July 2022, indeed, the Florida Citrus Processors Association and Florida Citrus Mutual petitioned the FDA to “bring the pasteurized orange juice standard into alignment with the existing properties of the mature oranges used for juice production” and with international standards. The FDA said it would consider making this change, including examining whether consumers would accept orange juice that may be less sweet.

Proposed changes to tuna standard of identity. On August 25, the FDA formally proposed updating the way in which tuna is weighed for commercial purposes and the type of packing medium allowed under the tuna standard of identity. The agency said the proposal could give consumers more transparency about the quantity of fish in cans and could allow manufacturers to innovate more easily to meet consumers’ tastes and preferences. The agency proposed substituting the “drained weight method” for the old “pressed cake weight” that is currently required. Leading tuna companies originally suggested this change eight years ago, on the grounds that the current test is archaic and difficult to perform.

FDA concludes agreement with Ecuador on safety of imported shrimp. On August 24, the FDA concluded the signing of a Regulatory Partnership Arrangement with Ecuador’s seafood regulatory authority to enhance the safety of shrimp imported from Ecuador to the United States. In this first-of-its-kind agreement, the FDA and the Ecuadorian Vice Ministry of Aquaculture and Fisheries will work more closely to reinforce food safety practices along the entire supply chain, taking advantage of already existent commodity-specific oversight to strengthen food safety before and at the port of entry. In remarks during the signing ceremony, Don Prater, acting director of the FDA’s Center for Food Safety and Applied Nutrition, described the arrangement as the “culmination of a lot of work and relationship-building between both of our agencies.” Ecuador is one of the leading exporters of shrimp to the US.

Debate over bill that would nullify California Proposition 12. Disputes in Congress over the controversial Ending Agricultural Trade Suppression (EATS) Act are expanding. The EATS Act aims to overturn California Proposition 12 and nullify a recent US Supreme Court decision that upheld it. Prop 12 set in-state standards for the sale of certain egg, veal, and pork products – most notably, it bans the sale of pork in California from farms anywhere in the country that confine pregnant pigs in “gestation crates” for almost their whole lives. (See our coverage of the Supreme Court decision here.) The EATS Act would effectively overturn Prop 12 and block states and local authorities from setting standards for the sale of agricultural products. On August 21, a bipartisan group of more than 150 members of the US House of Representatives signed a letter to the leaders of the House Agriculture Committee opposing the EATS Act. The letter emphasized the importance of letting states and localities make their own rules regarding food and other matters, as California did with Proposition 12. The letter said, “The EATS Act goes beyond overturning Proposition 12 to threaten many other state laws. The bill is particularly draconian in that it aims to negate state and local laws even if there is no federal standard to take their place, creating an overnight regulatory vacuum.” The letter went on to state that the act could “harm America’s small farmers, threaten numerous state laws, and infringe on the fundamental rights of states to establish laws and regulations within their own borders.” Meanwhile, proponents of the Act are saying that it will help to modernize agricultural law while protecting farmers. “So, if you’re a farmer in Iowa, who has to spend a lot of money to comply with new California regulations, you can get some relief from the state of California under the EATS Act,” said Mary-Thomas Hart, Chief Counsel of the National Cattlemen’s Beef Association. “I think that the EATS Act is that necessary first step that we have to take.“

Two senators ask FDA to justify a major aspect of its proposed reorganization. On August 24, Senators Dick Durbin (D-IL) and Richard Blumenthal (D-CT) wrote to the FDA regarding the agency’s proposed changes to the Office of Dietary Supplement Programs (ODSP). Earlier this year, the agency announced plans to relocate the ODSP into a new Office of Food Chemical Safety, Dietary Supplements, and Innovation - part of a major restructuring of the FDA based on proposals made by the Reagan-Udall Foundation. In their letter, the senators expressed concern whether, after the reorganization, the FDA would have sufficient resources to pursue oversight and enforcement of the dietary supplement industry. The industry itself has already expressed skepticism about the proposed reorganization.

Burger King must face lawsuit accusing it of misrepresenting the size of its burgers. On August 23, the US District Court for the Southern District of Florida denied Burger King’s motion to dismiss a lawsuit filed in 2022 by customers who accused the company of misrepresenting the size of its popular Whopper and Big King sandwiches with photos showing the meat patties as larger than what customers receive. The four named plaintiffs allege that they and millions of others suffered financial damages when the sandwiches they received were smaller than was depicted in ads and the stores’ menu boards. The court noted “a seemingly substantial difference between what was promised and what was sold (or was not)” and ruled that the plaintiffs may proceed with their claims accusing the fast-food company of breach of contract and negligent misrepresentation. The plaintiffs specifically accused Burger King of portraying burgers with ingredients that “overflow over the bun,” making it appear that the burgers are 35 percent larger and contain more than double the meat than customers actually get.

Company recalls ice cream because of possible listeria contamination. On August 9, Brooklyn-based Real Kosher Ice Cream issued a recall of all flavors of its Soft Serve On The Go ice cream and sorbet cups after two people who ate its vanilla-chocolate flavor were hospitalized. The products, the FDA reports, have the potential to be contaminated with Listeria monocytogenes. The Soft Serve On The Go cups are sold in stores in 19 US states and the District of Columbia as well as some international outlets. On August 28, media outlets reported that the dessert product was manufactured at Ice Cream House, LLC, in Brooklyn.