Food and Beverage News and Trends - March 21, 2025

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

Secretary Kennedy takes first steps to eliminate GRAS exception. Health and Human Services Secretary Robert F. Kennedy, Jr., has directed the FDA to explore a possible rulemaking that could eliminate the Substances Generally Recognized as Safe (GRAS) Final Rule. Under the current GRAS exception to the food additive petition process, manufacturers can self-affirm that the use of a substance is GRAS without notifying the FDA. While FDA strongly encourages companies to submit its substantiation for a GRAS conclusion through the agency’s GRAS Notification Program, it is not required. This voluntary self-affirmation process has allowed hundreds of chemicals to be added to US-made foods without FDA oversight. Secretary Kennedy would like to replace this system with one in which, before incorporating a new ingredient into a food, manufacturers would be required first to publicly notify the FDA about the way they intend to use the ingredient and to provide safety data about the ingredient. The HHS press release about this development also forecasts further moves by the department that would entirely end the GRAS exception: “HHS also is committed to working with Congress to explore ways legislation can completely close the GRAS loophole.”

Secretary Kennedy meets with CEOs of major food companies. Secretary Kennedy held a closed-door meeting with food industry leaders, reportedly pressing them to reduce food additives in the food supply, and, in particular, those “FD&C colors” that are required to be batch certified by FDA. In his Making America Healthy Again Executive Order, the Secretary has asserted that certain food ingredients contribute to chronic disease, with a particular concern about how these ingredients impact children. It has been reported that Secretary Kennedy has prioritized removing these colors from the food supply before he leaves office, either voluntarily by industry or through government action. Many members of the food industry are pushing back on this effort.

President ends two key food safety committees. Two USDA food safety advisory committees have been eliminated by the Trump Administration. Members of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) and the National Advisory Committee on Meat and Poultry Inspection (NACMPI) were informed of the termination by the USDA on March 6. The NACMCF was established in 1988 by the Secretary of Agriculture to provide federal, state, and local food safety agencies with an interagency approach to microbiological criteria and food safety issues. Its work informs that of the USDA’s Food Safety and Inspection Service, the FDA, Department of Commerce, National Marine Fisheries Service, and the Department of Defense Veterinary Services. The NACMPI, established in 1971, advises the Secretary of Agriculture on inspection program activities at the state and federal levels. On March 16, Senator Richard Blumenthal (D-CT) called on USDA Secretary Brooke Rollins to restore the committees. Calling their elimination “dangerous and irresponsible,” he stated, “This Administration’s misguided attempt at ‘reducing bureaucracy’ threatens to halt any progress made toward strengthening the safety of our food supply.”

Senate confirmation hearing on Makary nomination. On March 6, the Senate Health, Education, Labor, and Pensions Committee (HELP Committee) held a confirmation hearing on the nomination of Dr. Martin Makary to serve as FDA Commissioner. In his written testimony, Dr. Makary stated that he wants to create a “smarter FDA that works for all Americans,” and praised President Donald Trump and HHS Secretary Robert F. Kennedy, Jr., for creating a “generational opportunity to usher in radical transparency and to facilitate more cures, meaningful treatments and diagnostics to empower people to take care of their health.” Emphasizing the importance of science, he said, “If confirmed, I hope to ensure the FDA holds to the gold standard of trusted science, transparency, and common sense to rebuild public trust and ‘Make America Healthy Again.’” In his opening remarks, Makary talked about food and human health, stating, “Childhood obesity is not a willpower problem, and the rise of early-onset Alzheimer's is not a genetic cause. We should be, and we will be addressing food as it impacts our health.” Later in the hearing, he elaborated on this: “Half of our nation's children are sick and nobody has really been doing anything meaningful on this front until we have gotten new momentum and enthusiasm from Secretary Kennedy and President Trump to finally address the root causes of these diseases.” During the hearing, senators pressed Makary about a number of issues. When questioned about the safety of the food supply, Makary indicated that chemicals in the food supply, including color additives, need to be re-examined. While not within FDA jurisdiction, Makary also expressed concern about chemicals in the school lunch program. In response to questions about the recent mass firings at the FDA, Makary stated of the firings, “I have not been involved in any of the decisions regarding any of the personnel changes recently, but if confirmed, you have my commitment that I will do an assessment.” Dr Makary is a surgical oncologist and researcher; he is chief of islet transplant surgery at Johns Hopkins University’s School of Medicine. On March 13, the HELP Committee voted to advance his confirmation.

FDA announces initiative to ensure safety and adequacy of the domestic infant formula supply. On March 18, FDA announced Operation Stork Speed, an initiative designed to enhance “the ongoing quality, safety nutritional adequacy, and resilience of the domestic infant formula supply.” Under this initiative, the agency will undertake a number of steps that include: reviewing the nutrients required to be in infant formula, increasing testing for heavy metals and other contaminants “in infant formula and other foods children consume," extending the personal importation policy, increasing transparency including communicating regularly with stakeholders as significant developments occur (including information regarding nutrients and health outcomes), discussing clearer labeling, and collaborating with the National Institutes of Health (NIH) and other scientific bodies to address priority scientific research gaps regarding short- and long-term health outcomes associated with formula feeding in infancy and childhood across the lifespan.

Canadians boycott US groceries. In response to the US Administration’s tariffs imposed on goods and products and statements interpreted by Canadians as challenges to Canada’s sovereignty, many Canadians are beginning to boycott US products or seek out Canadian product options. “American products we are selling as a percentage of our total sales are rapidly dropping,” Michael Medline, CEO of Canadian grocer Empire Co. Ltd., said on March 13. “We have heard loud and clear from our customers that they want Canadian products.” Empire owns two major Canadian grocery chains, Safeway and Sobeys, which typically source 12 percent of their products from the US, but, Medline said, that percentage is falling “and will continue to, as we shift our supply” away from US products. Medline’s comment come as consumers across Canada are increasingly turning away from US-made and -grown goods. A recent survey by the Angus Reid institute found that 85 percent of Canadians said they either were already boycotting US products or were planning to do so, replacing them with other items. Notably, boycotts of food and beverage purchases are at the forefront. Of the respondents, 98 percent said they were skipping purchases of US goods and were seeking out “made in Canada” groceries and beverages. Provincial liquor boards, such as the Liquor Control Board of Ontario – one of the world’s largest purchasers of wines and spirits – have moved American-made products off store shelves into storage and are not planning further purchases for the time being. Some boycotters are particularly targeting products from Republican-led states – Kentucky bourbons and Florida orange juice, for instance. Grocery chains are rolling out in-store labeling programs to identify Canadian-made products. The website Made in CA has recently seen a surge in traffic, and consumers are downloading apps like Maple Scan and Buy Beaver to help them identify the provenance of foods and other products. In the coming months, the persistence of these consumer moves will likely be watched closely, on both sides of the border.

USDA, CDC, FDA rehire probationary workers, for now. On March 11, the USDA announced that the 6,000 probationary employees it had terminated since early February all had their jobs back, in keeping with a Merit Systems Protection Board stay and several court orders that found reasonable grounds to believe the terminations were unlawful. The MSPB ordered the USDA to return the fired workers to their jobs for 45 days while an investigation continues. On March 4, multiple news sources reported that the FDA was moving to rehire some workers, in particular employees overseeing the safety of food ingredients and responding to the H5N1 bird flu outbreak. Also on that day, about 180 employees who had been terminated from the CDC received an email about their employment status, with a subject line that said, “Read this e-mail immediately,” notifying them that their termination notices had been rescinded and that they should return to work on March 5. Many of these returning employees have reportedly been placed on administrative leave, meaning they are being paid but are not being allowed to carry out any work. A court order issued late on March 17 by the US District Court for the District of Northern California is requiring that fired probationary workers be returned to their old jobs rather than be placed on administrative leave. A fresh wave of federal employee firings across many agencies is expected in the coming days, in keeping with a February 26 Administration memorandum, “Guidance on Agency RIF and Reorganization Plans Requested by Implementing The President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.”

Agricultural groups sue USDA over Administration moves. A coalition of agricultural and environmental advocacy groups has sued the USDA in the US District Court for the Southern District of New York over the January 30 removal of climate-related resources from federal websites and the withholding of grant funds promised to farmers. The Northeast Organic Farming Association of New York, the Natural Resources Defense Council, and the Environmental Working Group allege that the massive data purge, which has removed hundreds of datasets, funding resources, and informational and planning tools from federal websites, violates multiple federal laws and deprives farmers of essential guidance. The suit, filed on February 24, also seeks the release of conservation grant reimbursements – payments which the USDA recently canceled. Many of the recipients of such grants have already invested in climate resilience and conservation projects. Next, on March 13, a coalition of organic farmers, assisted by the nonprofit group Earthjustice, brought suit in the US District Court for the District of Columbia seeking a court order to compel the USDA and the Trump Administration “to lift their unlawful and indefinite freeze of Congressionally appropriated funds for farmers, non-profit organizations, and other USDA grantees.”

West Virginia passes sweeping ban on food dyes, preservatives. On March 14, the West Virginia Senate overwhelmingly approved a bill banning certain synthetic dyes and preservatives from commercially sold foods, including as ingredients in meals served by schools or school nutrition programs. West Virginia HB 2354 aims to ban the dyes FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6, along with the preservatives butylated hydroxyanisole and propylparaben. It allows exceptions for bake sales and small business sales. This is not the first state-level bill that would remove dyes from commercial foods. California’s AB 418 bans four substances: brominated vegetable oil, potassium bromate, propylparaben, and FD&C Red Dye #3; its AB 2316 bans six additional dyes from foods served on school menus, targeting Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2 and Green Dye No. 3. The West Virginia bill, like others of its type that are emerging around the nation, is backed by Republicans who have joined HHS Secretary Kennedy’s Make America Healthy Again movement to improve the US food supply.

Climate change is coming for bananas. Banana plantations across the Caribbean and Latin America could see “dramatic” reductions in “suitable” growing areas by 2080 as the planet heats up, “along with yield declines” – and attempts to adapt to those changes could be limited by socioeconomic and other factors, concludes a study published this month in the journal Nature Food. Annual global trade in bananas and plantains is valued at $11 billion, “exceeding that of any other exported fruit,” the report notes. It goes on to state that as the climate warms, suitable production sites will “shrink dramatically (by 60% overall)” with some countries more affected than others. For instance, “Colombia and Venezuela are predicted to become almost entirely suboptimal for export production.” Limited areas of Bolivia, Brazil, Mexico, and Nicaragua “are the only regions that are likely to become substantially more suitable for production in the future,” and Ecuador is the only country that overall will see optimal banana-growing conditions actually improve. The report goes on to predict that, as suitable growing areas shrink, banana growing will also be constrained by socio-economic factors such as availability of labor in a hotter world, export market access, and government subsidies. The report also predicts “a larger reorganization of international trade flows, with as yet unexplored consequences for local agricultural economies in producer countries to maintain demands for nutritional diversity in non-producing countries.” See the study here.

Avian flu update.

• At this writing, 986 US dairy herds across 17 states have been infected with H5N1, 755 of them in California; nearly 166.5 million birds have been culled in US commercial poultry operations. In the wild, the virus has rampaged around the globe, infecting nearly 500 wild bird species as well as 48 mammal species, among them elephant seals, rats, foxes, cougars, and polar bears.


• On March 7, the US Department of Justice’s Antitrust Division announced it is investigating major US egg producers to determine whether they are colluding over egg supplies and pricing. Numerous media outlets are reporting the rise of egg smuggling – a March 16 headline in The Economic Times stated, “Eggs are now the new hottest smuggled item into the US, even more than drugs,” and a March 18 headline by The Independent stated, “More egg products seized at the border than fentanyl since the start of this year.”


• Two raw cat food products manufactured by Savage Pet have been recalled due to the potential of contamination with H5N1. The products, large 84 oz. Chicken Boxes and small 21 oz. Chicken Boxes with the lot code/best before date of 11152026, were sold by retailers in California, Colorado, New York, Pennsylvania, and Washington state. The recalls were initiated after two house cats in separate households in New York City fell ill and died. Savage Pet is the fourth US raw pet food manufacturer to have recalled products this year due to concerns over contamination with avian flu. Since the start of this year, H5N1 has been confirmed in 51 cats in the US, most of them house cats.


• On March 18, the UN’s Food and Agriculture Organization (FAO) warned in a briefing that the “unprecedented” global spread of the H5N1 virus is “leading to serious impacts on food security and food supply in countries, including loss of valuable nutrition, rural jobs and income, shocks to local economies, and of course increasing costs to consumers.” FAO Deputy Director-General Beth Bechdol called for a coordinated global response.


• In January, President Donald Trump appointed Dr. Gerald Parker, a veterinarian with extensive government experience as well as expertise in zoonotic diseases, to head the White House Office of Pandemic Preparedness and Response Policy (OPPR). The office was created by Congress in 2022 to improve the nation’s readiness for future pandemics. Up to January 20 this year, its staff of about 20 people quietly worked to orchestrate the US response to H5N1 and other biological threats, focusing on infection surveillance and safeguarding human and animal health while coordinating the work of the USDA, FDA, and CDC. Of those 20 staffers, only one remains. The OPPR’s web pages are among the hundreds of websites and datasets that have been taken down by the Trump Administration.


• Meanwhile, on March 12, the Mississippi Board of Animal Health announced that another dangerous strain of avian influenza, H7N9, has been found in a commercial flock of broiler breeders in Noxubee County. This is the first time H7N9 has been found in the US since 2017. The affected facility is under quarantine and its 46,000 birds are being culled.