Food and Beverage News and Trends - June 30, 2023

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

In regulatory landmark, USDA approves sale of cell cultivated chicken. On June 21, the USDA for the first time approved the sale of lab-grown animal protein to US consumers, allowing “cell cultivated chicken” from two California companies to enter US commerce and creating a pathway to market for dozens more. At least a hundred companies, dozens of them in the US, are working to produce lab-grown meats, which are seen by supporters of alternative proteins as answering concerns about the environmental and ethical impacts of meat production. The two California companies, Upside Foods and Good Meat, will initially sell their lab-grown chicken through partner restaurants. Good Meat is partnering with celebrity chef Jose Andres to offer its product at a so far undisclosed spot in Washington, DC, and Upside Foods’ chicken will appear on the menu of San Francisco’s Bar Crenn. However, issues in scaling up production capacity mean it will likely be a long time before the average American consumer can purchase lab-grown meat products in the grocery store.

FDA modifies its proposal for unified human foods program. On June 27, the FDA announced it is updating its proposal to create a unified Human Foods Program within the agency. The announcement comes in the wake of a June 15 move by an appropriations committee in the US House of Representatives approving legislative language that would direct the FDA to unify its food program under one person. At present, food-safety issues are spread within the FDA across the Center for Food Safety and Applied Nutrition, the Office of Regulatory Affairs (ORA), and other FDA entities. Brian Ronholm, food policy director at Consumer Reports, had hailed the committee’s move, but said he is not confident the FDA would follow that direction. The FDA’s update includes a new model for ORA. FDA Commissioner Robert M. Califf said, “Listening closely to feedback provided by employees and stakeholders, our thinking has significantly broadened. We know that in front of us is a once-in-a-generation opportunity to unify our field work with the priorities of program offices and Centers. This is why I’m proposing a number of additional changes to ORA, including moving several of the office’s laboratories and merging its current compliance functions into those of the new HFP and other agency product centers.” The proposed changes align with many of the recommendations from last year’s Reagan-Udall Foundation report on the Human Foods Program. FDA is also providing high-level organization charts that show the changes currently being proposed.

FDA report discusses food-borne illness in restaurants. On June 20, the FDA released a report entitled “The Occurrence of Foodborne Illness Risk Factors in Fast Food and Full-Service Restaurants,” which notes that, according to the Centers for Disease Control and Prevention, more than half of the foodborne illness outbreaks that occur each year in the United States are associated with food from restaurants. Some of the key findings mentioned in the report were that the two most common risk factors for contamination in restaurants were improper holding time and temperature, and workers’ personal hygiene; that inadequate cooking was the least out-of-compliance risk factor that was studied; and that having well-developed food safety management systems was the strongest predictor that risk factors would be minimized.

Proposition 12 enforcement in California will wait until 2024. On June 16, the state of California announced that it plans to delay compliance with its Proposition 12 law until January 1, 2024, allowing the nation’s pork industry more time to determine how to handle implementation of the law. Under the animal-welfare law, producers of veal calves are required to house animals with at least 43 square feet of usable floor space per calf. Producers of sows are required to provide a minimum of 24 square feet of usable space per animal to comply with the law, and laying hens are required to be raised cage-free. The California Department of Food and Agriculture already stated that any pork product produced before July 1 would be grandfathered into the law and recognized that the remainder of 2023 would be a transition period. In May 2023, the US Supreme Court rejected a constitutional challenge to the law filed by the National Pork Producers Council and the American Farm Bureau Federation.