Food and Beverage News and Trends - November 8, 2024

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

CVM finalizes guidance document on animal feed ingredient enforcement policy. FDA’s Center for Veterinary Medicine (CVM) has finalized GIF #293, its guidance document on its enforcement policy for animal feed ingredients. In August this year, the Memorandum of Understanding (MOU) between the FDA and the Association of American Feed Control Officials (AAFCO) expired. GIF #293 aims to fill a regulatory gap by clarifying FDA's enforcement regarding animal feed ingredients that are not approved as food additives under the Federal Food, Drug, and Cosmetic Act and not Generally Regarded as Safe (GRAS), but are listed in the 2024 AAFCO Official Publication. Furthermore, FDA has requested public comment on its animal Food Additive Petition and GRAS Notification programs as it considers how to improve the path to market for new animal food ingredients and better serve public health. Comments are due by December 9, 2024.

Canadian consultation on proposed compositional requirements for infant foods. Health Canada is seeking comments from interested stakeholders on its proposal for compositional requirements for infant foods and foods currently regulated as foods for special dietary use. The requirements would affect infant formula, medical foods for ages one or more, medical foods represented as a total diet replacement for weight reduction, conventional infant foods, gluten-free foods and formulated nutritional foods, which are all are regulated under Divisions 24 and 25 of the Food and Drug Regulations. Interested stakeholders include health professionals, industry stakeholders, non-governmental organizations, academics and researchers, all levels of government, and consumers including patients and caregivers. The input gathered from the consultation process will help develop regulations that are anticipated to be published in spring 2026. Interested stakeholders may submit their comments to bns-bsn@hc-sc.gc.ca by December 23, 2024.

Phthalates in food packaging: latest FDA response. The FDA has affirmed its 2022 Final Rule to remove 25 plasticizers in various food contact applications, as well as its denial of a consumer group petition to amend or revoke regulations for the food contact use of 28 phthalates. While FDA’s actions preserve the status quo for the use of these phthalates, the agency noted that phthalates are included on FDA’s List of Select Chemicals in the Food Supply Under FDA Review in the future. See our alert.

USDA will kick off new program to promote organic dairy products in schools. The USDA’s Agricultural Marketing Service (AMS) has announced the Organic Dairy Product Promotion program, a $15 million promotional initiative that is expected to create business opportunities for small and mid-sized organic dairies by expanding access to organic dairy products in K-12 schools across the nation. Under the program, the universities that currently support the Dairy Business Innovation initiatives will develop region-specific projects to distribute organic dairy products to schools and youth-focused programs and institutions, “connecting producers to new, local markets and providing youth with healthy, fresh dairy products from nearby farms,” said USDA Under Secretary Jenny Lester Moffitt. The program will be funded by the government-owned Commodity Credit Corporation.

FDA publishes Supplement to 2022 Food Code. On November 4, the FDA published the Supplement to the 2022 Food Code, updating the 2022 Food Code. The Food Code is the model for retail food regulations in all 50 states, the District of Columbia, and other territories, providing science-based controls for reducing the risk of foodborne illness in retail and food-service establishments. Among the updates are provisions on disinfection of food contact, nonfood-contact, and equipment surfaces; clarifications of how and when containers can be refilled and reused in a food establishment; updated testing requirements for reinstating food employees diagnosed with certain illnesses; and new provisions that address when a Food Safety Management System is required.

California standardizes food package dating. California Governor Gavin Newsom has signed into law AB 660, standardizing food package date labeling with the goal of reducing food waste. Food labels will say either “best if used by” to indicate peak product freshness or “use by” to indicate when a food product is no longer safe to eat. In addition, retailers may longer use “sell by” stickers; these labels, which can confuse shoppers, are used by retail outlets to show when stock needs to be rotated.

Health Canada updates List of Permitted Food Enzymes. On October 30, Health Canada’s Food and Nutrition Directorate authorized the use of lipase from Aspergillnus niger strain PLR in the manufacture of bread, flour, whole wheat flour, pasta (dry and fresh), and unstandardized bakery products (eg, steamed bread, tortillas, waffles, and pizza dough). The enzyme can be used for the production of refined edible fats and oils by degumming. Lipase from other sources was already permitted for use in these foods; this is the first time a niger strain PLR has been a permitted source for a food enzyme in Canada. The Directorate’s decision was based on a premarket safety assessment that considered allergenicity, chemistry, microbiology, molecular biology, nutrition, and toxicology.

FDA's updated compliance guide on Scombrotoxin now available. FDA’s final Compliance Policy Guide (CPG) addressing the adulteration of fish and fishery products with Scombrotoxin is now available. Scombrotoxin, also known as histamine, may be found in improperly refrigerated or handled fish; Eating such contaminated fish can trigger scombrotoxin fish poisoning (SFP), an allergic-type reaction. FDA notes that certain fin fish, like tuna, are more likely to become contaminated with the toxin. The CPG will help FDA staff address adulteration associated with decomposition and/or histamine identified during surveillance sampling and testing and will increase consumer protections related SFP by lowering the levels of histamine in fish at which the FDA may take action. SFP continues to cause the highest number of illnesses associated with finfish in the United States. See the Compliance Policy Guide here.

California agency rejects petition on labeling synthetic food dyes. On October 30, the California Department of Public Health denied a 2022 petition from the Center for Science in the Public Interest, which had requested that a warning label be provided in the state on foods containing synthetic food dyes. The CSPI said that in denying the petition, the California agency “had completely disregarded” an assessment of the evidence completed by its sister agency, California’s Office of Environmental Health Hazard Assessment (OEHHA), part of the California EPA. The nonprofit said that the OEHHA’s 2021 report had concluded that synthetic dyes “can cause or exacerbate neurobehavioral problems in some children” and that its 300-plus-page report represents the most rigorous assessment regarding the effects of dyes on behavior in children undertaken to date. Last year, California banned four substances from food – brominated vegetable oil, potassium bromate, propylparaben, and FD&C Red Dye #3.

Court denies injunction against Florida ban on cultivated meat. On October 11, the District Court for the Northern District of Florida denied a request by food technology startup Upside Foods for a preliminary injunction against Florida’s law banning the sale and manufacture of cultivated meat, also known as lab-grown meat, in the state. Florida’s SB 1084, which came into effect on July 1, makes the manufacture, sale, or distribution of cultivated meat in Florida a second-degree felony. The court found that Upside Foods had “failed to meet its burden to establish that it is substantially likely to succeed on the merits of its express preemption claims” under the federal Poultry Products Inspection Act, which the company believes preempts the new Florida law. An attorney at the Institute for Justice, which represents Upside Foods, said, “Today’s ruling has no bearing on the final resolution of this case. We always expected the bulk of the lawsuit to be decided on its merits, and that’s exactly where we’re headed.” Upside Foods received FDA and USDA approval last year allowing it to operate as a meat establishment and process, package, and sell its cultivated chicken in the US.

Combating global food insecurity: A conversation with The Global FoodBanking Network's Lisa Moon. In the latest episode of our Beyond the Curve podcast, DLA Piper's Kathleen Ruhland and Lisa Moon, President and CEO of The Global FoodBanking Network, discuss the nonprofit’s work combating food insecurity around the world, challenges food banks face, and how they support the world’s most vulnerable communities. Listen here.

Beef trade group criticizes dietary panel’s thoughts on Americans’ diets. In an October 22 letter, the National Cattlemen’s Beef Association criticized a preliminary recommendation from the US Dietary Guidelines Advisory Committee that proposed replacing some of the beef in Americans’ diets with vegetable proteins. “The preview meeting of the Dietary Guidelines Advisory Committee this week stands out as one of the most out-of-touch, impractical, and elitist conversations in the history of this process,” said Ethan Lane, the group’s vice president of government affairs. “We would laugh at the suggestion that beans, peas, and lentils are going to replace lean red meat and fill all the nutrient gaps Americans are facing if it weren’t such a dangerous and deceptive idea.” The letter followed a meeting the group had with the committee of 20 nutrition experts.

Avian flu update. The week of October 28 saw considerable activity in reporting on the spread of H5N1, the avian flu virus:

• H5N1 has been confirmed in commercial dairy facilities in Utah, which, the USDA reports, becomes the fifteenth state where the virus has been found on commercial dairy farms.
  
  
• USDA also reported that since March, 54 commercial poultry farms have tested positive for H5N1 in 15 states. In the period from October 1 to November 1, the agency reports, the virus was found in 9 commercial flocks and 6 domestic flocks in the US, leading to the culling of 4 million birds. Since H5N1 was first detected in a commercial US flock in February 2022, nearly 105 million commercial birds have been affected.
  
  
• USDA also reported on November 1 that the total number of human H5N1 infections in the US now stands at 41. Most recently, three cases were confirmed in California and six more in Washington state. The CDC states that its influenza surveillance systems show no indicators of unusual influenza activity in people, including H5N1, and it continues to affirm that the current public health risk is low.
  
  
• The USDA reported on October 30 that a pig in Oregon has been found to be infected with the H5N1 avian flu virus – the first known infection in swine in the US. Observers are concerned about this development because swine are understood to play a critical role in the evolution of flu viruses.
  
  
• In Canada, as of November 4, H5N1 has been found in both commercial and noncommercial poultry farms in British Columbia, which has reported 15 infected premises, and Saskatchewan, which has reported one. The Canadian Food Inspection Agency (CFIA) notes that this is the third autumn in a row in which Canada has seen upswings in H5N1 poultry infections spread by migrating birds. In Canada, when HPAI is confirmed in poultry through lab testing, the CFIA designates the affected area as an infected premise and places it under quarantine; it may also establish a primary control zone around the infected premise, allowing the movement of poultry, products, and equipment within a 10-kilometre radius only under permit. It also reports the information to the World Organisation for Animal Health. A CFIA spokesperson stated, “The continued detections of HPAI in both wild and domestic birds in Canada is a strong reminder for anyone raising birds to remain vigilant of HPAI and ensure they have effective biosecurity measures in place.”