Food and Beverage News and Trends

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

• H5N1 avian flu on US poultry farms. Tens of thousands of chickens and turkeys on poultry farms in several US states have tested positive for the H5N1 strain of avian flu. The outbreak first appeared in the US in early February in an Indiana farm’s flock of 29,000 turkeys.  Since then, the virus has appeared in four more commercial flocks in Indiana, as well as in nearby farms in Kentucky and Virginia and in a commercial operation in Delaware.  All of these birds – at least 1.5 million – have been euthanized. In 2015, a US outbreak of H5N1 led to the slaughter of 50 million chickens. On February 24, Agriculture Secretary Tom Vilsack said that this time, the US poultry industry is better prepared, thanks to more frequent testing and strong biosecurity practices. Farmers in US states with extensive egg and poultry operations are working closely with the USDA's National Veterinary Services Laboratories and state authorities to tighten biosecurity and keep the disease away from their flocks. Likely spread by migratory wild birds, the H5N1 strain is also appearing in domestic and commercial flocks elsewhere, including in Canada, India, the UK, and across the European Union.
• Mexican avocado ban lifted.  On February 18, the USDA’s Animal and Plant Health Inspection Service said it is lifting a ban on avocados from Mexico's Michoacán state, the only part of Mexico authorized to export the fruit to the United States.  The ban had been put in place on February 11 after a USDA inspector based in Mexico was threatened.  About 80 percent of Michoacán’s $3 billion avocado crop is exported to the US; 50 percent of the world’s avocados come from that state.  The ban has thrown a spotlight on the drug cartel turf battles and extortion of avocado growers that are a fact of life in Michoacán – as well as on the widespread environmental damage caused by avocado farming, such as illegal logging, burning and deforestation and water use so extensive that, the World Economic Forum reports, it is triggering small earthquakes.  The USDA said it is working with agencies in Mexico to put in place additional safety measures for protecting the agency’s inspectors based in Michoacan. 
• Senate confirms Califf as new FDA chief. On February 15, the US Senate confirmed, by a 50 to 46 vote, President Joe Biden’s nomination of Dr. Robert Califf to become the commissioner of the FDA. Califf is a prominent cardiologist who served as FDA commissioner during President Barack Obama’s final year in office. Five Democrats voted against Califf, while six Republicans supported the nomination. The objections to Califf centered on his ties to the pharmaceutical industry and on his alleged failure to stem the tide of the opioid epidemic in his previous stint as head of the FDA. Although the FDA has broad oversight of a vast array of food-related issues, these issues hardly arose during the confirmation process.
• USDA to invest $1 billion in farm programs to fight climate change. The USDA on February 8 announced the Partnerships for Climate-Smart Commodities program, which will invest US$1 billion in pilot projects to promote farming, ranching and forestry practices that capture carbon and cut greenhouse gas (GHG) emissions.  USDA Secretary Tom Vilsack said, "We think there is an emerging opportunity here, as consumers demand more sustainably produced food here in the United States and certainly in the export market.”  Funding, which comes from the USDA's Commodity Credit Corporation, will be awarded to qualified public and private entities, such as small businesses, governments, nonprofits, Tribal organizations, and universities. Applications seeking grants from $5 million to $100 million are due by April 8, while those seeking smaller grants are due May 27.  The Biden Administration has set a goal of cutting the farm sector's GHG emissions in half by 2030.   You may also be interested in our reporting about four agricultural programs in California designed to cut GHG emissions.
• USDA takes new steps to make school meals more nutritious. The USDA on January 31 announced it is making changes to its school nutrition standards for the 2022-2023 school year in an effort to reinstate health goals that were rolled back during the Trump Administration. The changes, the USDA said, are designed to give schools “time to transition from current, pandemic operations, toward more nutritious meals.” The new rules seek to stabilize three nutritional standards which were in flux in recent years regarding fat, whole grains, and sodium.  Requirements include offering low-fat or nonfat unflavored milks and to limit the amount of fat in sweet, flavored milks; at least 80 percent of the grains served in school lunches and breakfasts each week must be considered whole grain rich; and starting in the 2023-2024 school year, a 10 percent reduction in sodium will be required. More than 30 million children rely on school meals every day, and two-thirds of those children qualify as low income, making the nutritional value of their school meals especially impactful.
• Group seeks action by FDA on poppy seed petition. On February 7, the nonprofit Center for Science in the Public Interest formally asked the FDA to provide it with an update on a petition the group filed a year ago in which it asked the FDA to regulate poppy seeds by setting a maximum limit for opiate contamination and by establishing controls on imported seeds. In that petition, CSPI had noted that every year, some people who eat poppy seeds suffer illness or death from contaminated seeds. “The time is overdue for the FDA to establish standards that will protect U.S. consumers from ingesting dangerous levels of opiates through the food supply,” the CSPI wrote to Susan Mayne, director of the FDA’s Center for Food Safety and Applied Nutrition. “Accordingly, we are requesting a meeting with you to review the evidence supporting our requests, and to receive an update on the status of our petition.”
• CDC announces end of major Salmonella outbreak traced to fresh onions. On February 2, the Center for Disease Control and Prevention announced that a recent major outbreak of Salmonella traced to fresh onions from Mexico is over, but that the federal government is continuing to look into its causes. The CDC announcement noted that as of January 20, a total of 1,040 people from 39 states, the District of Columbia and Puerto Rico had been infected. Illnesses started on dates ranging from May 31, 2021, to January 1, 2022. No one died in the outbreak, but 260 people were so ill that they had to be admitted to hospitals. This proportion is higher than in most Salmonella outbreaks.
• FDA will tighten indoor farming rules in wake of a 2021 Salmonella outbreak.  A 2021 outbreak of Salmonella traced to packaged salad grown by indoor farming company BrightFarms has prompted the FDA to expand its food safety regulations for controlled environmental agriculture (CEA), popularly dubbed indoor farming.   A sample collected from a drainage pond adjacent to a BrightFarms facility genetically matched the strain of Salmonella implicated in last summer’s outbreak. The investigation also discovered a different strain of Salmonella in pond water used to grow the salad greens and raised sanitary concerns about grown media and water management.  The new rules will require CEA facilities to implement rapid cooling techniques when harvesting leady greens; to put in place better oversight of potential means of contamination; and to mitigate risks associated with use of adjacent land. 
• Groups petition federal government to take more steps on added sugar. On February 1, the nonprofit Center for Science in the Public Interest, joined by other health and nutrition watchdog groups, petitioned the FDA and USDA to set a new added-sugar standard for school lunches and to require restaurants to disclose added sugars. The groups said these steps would combat obesity, diabetes, heart disease and other health problems. “For many children from food-insecure families, the breakfast and lunch served in school may be their only nutritious meals of the day,” said CSPI president Peter Lurie. “While the program has been a historic success story, it needs to keep up to date with the latest science.” The groups pointed out that the current version of the Dietary Guidelines for Americans specifies that people should limit their intake of added sugars to less than 10 percent of overall calorie consumption.
• Appeals court affirms rejection of claims against dog food maker. The US Court of Appeals for the Tenth Circuit on February 15 rejected a case filed by a group of purchasers of Champion Petfoods products who had asserted that certain representations on the packaging of Champion’s Acana and Orijen brands of dog food were false and misleading. The appeals court upheld the ruling of a district court that the claims had failed to allege any materially false or misleading statements on Champion’s packaging because the phrases in question failed to deceive or mislead reasonable consumers on any material fact. The plaintiffs had objected to packaging statements that Champion’s products are “Trusted Everywhere,” “Grown Close to Home” and contain “Fresh Regional Ingredients” that are “ethically raised by people we know and trust.” The court said claims like these are non-actionable puffery and vague generalities rather than specific statements about the product and thus cannot be misleading.
• Not so “lite” soft drink. On February 6, consumers of Arizona Beverages USA’s “Lite” Arnold Palmer Half & Half Iced Tea Lemonade filed a class action against the company alleging that the product is not as low in calories or sugar as consumers might expect from its name. The case was filed in the US District Court for the Southern District of Illinois. The complaint alleges that consumers understand the term “lite” to mean that a product is low in sugar or contains lower amounts of sugar than comparable items. The company’s “lite” version of an Arnold Palmer, the lawsuit asserts, is misleadingly labeled in that the beverage is not low in calories – it contains 80 calories per 12-ounce serving – and the label makes no mention of any reference drink for comparison. Furthermore, the complaint says, the product would actually be considered “high” in added sugars based on FDA standards.
• Informal survey shows what some companies are doing to disclose GMO ingredients. In a February 10 blog post, the Center for Science in the Public Interest noted the results of an informal survey of the steps being taken by food companies to comply with the now-required disclosure of the use of genetically engineered ingredients in their products. The blog post said that while many observers expected most companies to make the disclosures in the form of QR codes on the packages, which would be more difficult for many consumers to access, in fact many companies are simply conveying the message with written text on their packages. At least two major grocery chains also use on-package text on their house brands, the blog post said.  In addition, a significant number of major companies are using QR codes that point users’ phones to the well-recognized “bioengineered” symbol.
• Is it time to put carbon footprints on labels? On February 17, Sustainable Brands magazine published an article asking whether it now pays, from a business standpoint, for companies to label their food products on the basis of the products’ carbon footprint. It noted that a few companies had experimented with such labeling as long as 15 years ago, but these attempts were short lived.  The article also noted that in the US, more than 45 percent of consumers believe global climate change is a serious problem and about 75 percent of millennials are altering their buying habits with the environment in mind. The article notes that some studies have found that products with relatively lower carbon footprints tend to be better sellers.