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.

FDA changes deadline to comment on healthy labeling rule.  The FDA has changed the deadline for submitting comments on its proposed rule providing new criteria for when foods may be labeled with the nutrient content claim “healthy.”  The due date for comments is now February 16, 2023.  Learn more about the proposed rule in our alert. 

New guidelines issued for food allergen management. Food Allergy Canada (FAC), a nonprofit that aims to help Canadians who are living with food allergies, has issued the Allergen Management Guidelines for Food Manufacturers, providing a framework for manufacturers to develop an allergen control plan or evaluate an existing plan. The voluntary guidelines also include recommendations for precautionary allergen labelling of food products. The Safe Food for Canadians Act defines allergens as a chemical hazard and therefore requires them to ‎be effectively managed. FAC, however, regards the Act’s precautionary labelling requirements for allergens ‎as confusing and difficult for consumers to navigate. The guidelines focus on risk management and were created with input from academia, food manufacturers, consumers, and allergists.

FDA announces mushroom recall due to possible Listeria. On November 17, the FDA and Green Day Produce, Inc. of Vernon, California, announced that Green Day is recalling its 200g/7.05oz packages of enoki mushrooms from Korea due to possible contamination with Listeria monocytogenes. The recalled mushrooms were sold nationwide in the US to distributors and retail stores in September and October.

Treasury Department agrees to issue proposed rules on labeling of alcoholic beverages. A coalition of consumer groups on November 21 announced that the US Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB) has agreed to issue proposed rules requiring standardized alcohol content, calorie, and allergen labeling on all beer, wine and distilled spirits products. TTB also agreed to begin preliminary rulemaking on mandatory ingredient labeling. The agency’s decision came after three national consumer organizations – the Center for Science in the Public Interest (CSPI), the Consumer Federation of America, and the National Consumers League – sued the TTB in October 2022 for failing to act on a 2003 petition to require alcohol labeling that has the same basic transparency that consumers expect for non-alcoholic beverages and food products. CSPI filed the complaint on behalf of the three organizations in the US District Court for the District of Columbia.

Hormel and nonprofit group agree to dismiss lawsuit focused on “natural” claims. On November 14, Hormel Foods and the Animal Legal Defense Fund jointly agreed to dismiss a lawsuit that the nonprofit had brought against Hormel. The lawsuit, filed in the District of Columbia Superior Court alleged that Hormel is misleading its consumers by advertising its Natural Choice brand of lunch meats and bacon as “natural.” These products, according to the lawsuit, come from animals raised in poorly maintained factory farms that use additives, hormones, and antibiotics. In the settlement, Hormel agreed to publish additional information on its website to help consumers understand the terms that it uses on its labels and in its advertisements. Hormel also agreed to include explanatory language in future ads for the Natural Choice products.

Health Canada updates the Table of Reference Amounts for Food. In an effort to modernize the Food and Drug Regulation to reflect current consumption and market trends, Health Canada has updated certain reference amounts for foods in the Table of Reference Amounts for Food. These reference amounts are used in nutrition labelling and include standard sizes for a single serving and the amount of food typically consumed in one eating occasion. Some of the changes include updates to certain categories, such as listing puff pastry sheets in the pie crust product category. Other changes include service size declarations on foods that require further preparation, such as muffin or cake mix. Market consumption data and industry consultations were used to update the Table. Manufacturers will have until January 1, 2026 to comply with the updated Table amounts.

ConAgra settles class action over “natural” advertising of Wesson Oil. On November 28, ConAgra Foods Inc., which makes Wesson Oil products, agreed to a $3 million class action settlement that is intended to resolve claims that it falsely advertised as “natural” certain Wesson oil products that were made with GMOs. The class comprises all individuals who live in one of 11 states and who during a certain time period purchased Wesson oil products there for personal, noncommercial use. The Wesson cooking oil products covered by the settlement are Wesson Vegetable Oil, Wesson Canola Oil, Wesson Corn Oil and Wesson Best Blend, all of which were marketed and sold as “natural” during the applicable period. Under the terms of the settlement agreement, class members can receive a cash payment after administrative costs and other expenses are deducted from the settlement fund – the payment will be 15 cents for each bottle purchased. The case was filed in the US District Court for the Central District of California. ConAgra has denied, and continues to deny, wrongdoing of any kind.

New African Swine Fever prevention and preparedness program is now providing funding to eligible Canadian organizations. Eligible Canadian organizations may now apply for funding through Agriculture and Agri-Food Canada’s African Swine Fever (ASF) prevention and preparedness program (ASFIPP). Canada and the US have never had an outbreak of African Swine Fever, but it has historically been devastating for herds in Africa, Europe, and Asia. In 2021, it was found in Haiti and the Dominican Republic.  A single case would result in the immediate closure of Canada’s borders for all pork exports. ASFIPP has set aside CAD 23.4 million to help Canada’s pork industry prepare for possible outbreaks of ASF. The money will be allocated to projects like biosecurity assessments and improvements, wild pig management, the retrofit of existing abattoirs, sector analysis and ASF-related research projects. Eligible organizations include academic institutions, associations, businesses, Indigenous groups, and provincial/territorial/municipal governments. These groups have until November 30, 2023 to apply for the funding. In the US, biosecurity resources for farmers, producers, veterinarians and pet owners are available through the USDA Protect Our Pigs website.

Report says that Canada’s food supply is at risk due to labor shortages. A new report from the Canadian Federation of Independent Business finds that approximately three-quarters of agribusiness owners in Canada are working overtime to compensate for labor shortages. Additionally, staffing shortages have led 48 percent of these businesses to turn down sales contracts and 41 percent to cut down their service offerings. Worker shortages add to the list of already known challenges faced by agriculture businesses, which also include the rising price of inputs and supply chain disruptions. CFIB is calling on policy makers to help agriculture businesses by reducing the total tax burden, streamlining and simplifying the Temporary Foreign Worker and immigration processes and programs, providing tax relief for the hiring of older workers and other underrepresented groups, and stimulating automation in the sector through programs or tax credits.

Meanwhile in the US, Farm Bureau News reports that labor shortages are similarly plaguing the entire food supply chain. “Having an obtainable and consistent labor force is vital to keeping farms producing at the highest levels, providing food and fiber, not only for US consumers, but also for the rest of the world,” the publication states.  The op-ed notes that the Farm Bureau is encouraging Congress to enact immigration policy that will protecting the ability of US farmers to recruit needed legal, temporary workers. Separately, in mid-November, California farmers and farmworkers rallied in Washington, DC to urge Congress to pass the Farm Workforce Modernization Act, which would create a path to citizenship for undocumented farmworkers. Jamie Johansson, president of the California Farm Bureau, said on November 17, "We must fix the farm workforce crisis this year to protect America's food security and to lower food prices."