Food and Beverage News and Trends - May 5, 2023

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

FDA is interested in how consumers get health information from online shopping platforms. On April 21, the FDA announced it is requesting information on whether and how online grocery retailers, food manufacturers, and third-party online grocery providers are displaying nutrition, ingredient, and allergen information through online grocery shopping platforms. The agency is asking a series of questions about the current availability of online information, the logistics and business considerations involved in providing online information, and the consumer use of online information. The agency requested that comments be received by July 24, 2023, stating that this input will help the agency improve consumer access to consistent and accurate labeling information for packaged foods sold online.

Health Canada announces policy to broadly restrict food advertising that targets children. As part of the Healthy Eating Strategy, Health Canada has announced that it intends to amend the Food and Drug Regulations to limit advertising of foods to children, with a particular focus on “influential food advertising in media where children spend much of their time and are highly exposed to food advertising” – that is, digital media and television. The goal, the agency says, is to reduce the risk to children of developing diet-related chronic diseases and conditions related to obesity, now and throughout their lifetimes. This announcement comes on the heels of a new study commissioned by the Heart & Stroke Foundation of Canada which determined that ‎restaurants and grocery stores directly market junk food to children in their in-store and exterior store ‎ads. Notably, Health Canada’s policy announcement broadly defines “advertisement” to include any representation by any means whatsoever for the purpose of promoting the sale or disposal of any food, which is defined as foods, drinks, chewing gum, and any ingredient that may be mixed with food for any purpose, and is not limited to advertisements in grocery stores. The policy announcement also notes that there has been an increase in children’s screen time during the COVID-19 pandemic, increasing their exposure to food advertising.

USDA proposes declaring Salmonella an adulterant in certain chicken products. On April 25, the USDA took a significant step in its plan to reduce incidents of Salmonella infections arising from the consumption of poultry products, releasing a proposed determination to declare the bacteria an adulterant in breaded stuffed raw chicken products when such products exceed a very low level of such contamination. Under the proposal, any breaded stuffed raw chicken products would be considered adulterated after testing positive for Salmonella at one colony-forming unit per gram prior to stuffing and breading. Several consumer groups have recently urged the USDA to go further and declare certain “outbreak serotypes” of Salmonella to be adulterants in all meat and poultry. The National Chicken Council said in response to the proposed determination that “the precedent set by this abrupt shift in longstanding policy has the potential to shutter processing plants, cost jobs, and take safe food and convenient products off shelves, without moving the needle on public health.”

New brands of infant formula appear on Canadian grocery store shelves. Canada has been experiencing a limited supply of infant formula due to the temporary closure of an American manufacturing facility in 2022. The shortage, which first affected specialized formula and later affected regular formula, has led Health Canada to allow new brands of infant formula to be imported into the country on a temporary basis. Health Canada assures consumers that these new brands are safe and will provide infants with their nutritional needs. These new brands all come from countries with quality and manufacturing standards that are similar to Canada’s.

Health Canada proposes addition to permitted supplemental food ingredient list. Health Canada has undergone a review and safety assessment of L-alpha-glycerylphosphorylcholine (alpha GPC) and has determined that it is safe and should be added to the list of permitted supplemental ingredients in foods. Once consumed, alpha GPC is converted to choline, an essential ingredient in a balanced human diet, and Health Canada is proposing to permit alpha GPC as a supplement subject to the conditions for use of choline in foods. Natural sources of choline include certain nuts and beans, egg yolks, and dairy products. Health Canada is accepting scientific information on the use of alpha GPC as a food supplement, as well as inquiries, by mail and email until July 1, 2023.

Canola protein may lead to allergic reaction in those with a mustard allergy. Canola protein has been approved for use as an alternative protein source in Canada. However, Health Canada has notified the public that individuals with a mustard allergy should abstain from this protein source, as it may cause an allergic reaction in individuals with a mustard allergy. Food manufacturers are expected to label all foods containing a canola protein ingredient appropriately. As canola protein isolate can be derived from either brassica juncea (a type of mustard) or brassica rapa / brassica napa (types of rapeseed); the food labelling requirement will be different depending on the protein’s source. Canola protein that is derived from brassica juncea will be labelled as containing mustard according to the enhanced allergen labelling requirements. Canola protein that is derived from brassica rapa / brassica napa will be labelled according to the usual food labelling requirements, but with a cautionary statement that the food may not be suitable for individuals with a mustard allergy.

Canada introduces new OMIC for certain beef broths from South Korea. The Canadian Food Inspection Agency has announced that Canada and South Korea have introduced a new Official Meat Inspection Certificate (OMIC) which applies to beef broths, flavours, and extracts made from non-Korean origin beef. The OMIC permits exporters of the specified products to certify that the meat products meet Canadian import requirements. OMICs are negotiated between Canada and foreign authorities and apply only to the specific products for which they are approved. The bovine OMIC for South Korea is the second OMIC to be negotiated, following the introduction of an OMIC for processed and cooked poultry products.

New bill introduced in US Congress to improve food labeling. On April 26, five US senators and two members of the House of Representatives introduced a new bill aiming to increase transparency and to promote healthy choices through food labels. A major feature of the proposed Food Labeling Modernization Act of 2023 is mandatory front-of-the-package nutrition labeling. The proposed legislation would require, among other things, that processed foods bear prominent labels to help consumers quickly and easily identify foods that are high in sodium, added sugar, or saturated fat -- ingredients that many say can lead to chronic disease. Senator Richard Blumenthal (D-CT), a leading sponsor, said, “Consumers deserve straightforward, easily accessible information about the ingredients and nutritional value of products they want to buy. With front of package labels, clearly marked allergens, and clarified guidelines to deter misleading claims, our measure will bring transparency and simplicity to Americans’ shopping experience.”

Consumer advocate testifies in California legislature against five food additives. On April 18, Brian Ronholm, director of food policy for Consumer Reports, testified before a California state legislative committee in favor of proposed legislation to prohibit five chemicals from being included in food sold in that state. “Our members are demanding immediate action to prohibit the use of these toxic chemicals and are responding by signing petitions to the FDA and writing letters to federal and state policymakers. They see these chemicals being banned in the EU, and elsewhere in the world and question why FDA still allows it in food products – many which are marketed to children, including candy and junk food. It’s beyond time to get these unnecessary, dangerous additives out of our food,” he said. The additives include titanium dioxide, brominated vegetable oil, potassium bromate, propyl paraben, and Red Dye #3.

Study concludes that warning labels can help reduce sugar consumption in restaurants. Researchers at the University of California, Davis have concluded in a paper published in Science Daily that warning labels on restaurant menus can reduce the likelihood that consumers will order items containing high amounts of added sugar. The authors of the paper, published on April 23, concluded that menu labels can help inform consumers about the relatively high amount of added sugar in even the smallest sizes of soda or in items like salad dressings and sauces. “Given the frequency of restaurant food consumption, these modest effects could lead to meaningful changes in sugar intake at the population level, and the labels should motivate restaurants to reduce the added-sugar content of their menus,” said Jennifer Falbe, a researcher in the university’s Department of Human Ecology and lead author of the study. Estimations indicate that 21 percent of calories consumed in the United States come from restaurant food. Interestingly, the authors also pointed out that only about one in five consumers who saw the menus recalled noticing the added-sugar labels.

Consumer confusion reigns on the issue of processed vs. ultra-processed foods. According to an April 27 article in Food Navigator, new research based on surveys of consumers in the United Kingdom indicates that consumers struggle to distinguish between ultra-processed and other processed foods but want to cut back on both. Processed and ultra-processed foods account for more than two-thirds of all calories consumed around the world. The survey shows that as many as 70 percent of all consumers are unfamiliar with the term “ultra-processed food” and that they thus do not know how to avoid this type of food or even what foods are encompassed by the category. The article goes on to note that while many ultra-processed foods are perceived as unhealthy, the category also encompasses foods like factory-made whole-grain breads and pasta sauces rich in vegetables. The food industry, the article concluded, needs to express more clearly to consumers which foods are considered processed and ultra-processed.