Food and Beverage News and Trends - July 12 2024

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

FDA revokes regulation allowing BVO in food. After conducting a series of studies in collaboration with the National institutes of Health, on July 2 FDA revoked the regulation allowing the use of brominated vegetable oil (BVO) in food. BVO is no longer considered safe. BVO has been regulated as a food additive since it was removed from the Generally Recognized as Safe (GRAS) list in 1970. As authorized, it was used in small amounts in some beverages. The rule becomes effective on August 2, 2024, and the compliance date is August 2, 2025. In June, Health Canada proposed removing BVO from Canada’s permitted food additives list.

Canada’s Bill C-59 and the food industry. On June 20, Bill C-59 became law in Canada, introducing significant amendments to the Competition Act to combat "greenwashing" – the practice of making false, misleading, or deceptive environmental claims to promote a product or business. Food businesses should carefully consider these new provisions, which may substantially impact the ambit of their marketing activities. On July 4, the Competition Bureau announced that it will expedite its development of guidance about the recent amendments, in response to numerous requests. The Competition Bureau further advised that it welcomes comments on the recent amendments through their Guidance Feedback Form.

CDC reports no decrease in detection of common foodborne diseases - A recent MMWR Report from the Centers for Disease Control and Prevention reveals that the incidence of eight domestically acquired infections commonly transmitted through food either increased or remained stable in 2023 compared to the 2016-2018 baseline. More specifically, the preliminary 2023 data from the Foodborne Diseases Active Surveillance Network (FoodNet) indicates that infections such as campylobacteriosis, Shiga toxin-producing E. coli (STEC) infection, yersiniosis, vibriosis, and cyclosporiasis saw an increase, while incidences of listeriosis, salmonellosis, and shigellosis remained stable. These results may be at least partially explained by the increased use of culture-independent diagnostic tests (CIDTs), which allow for quicker and more efficient diagnosis of infection. Because CIDTs allow for diagnosis of infections that previously would have gone undetected, lack of progress toward disease reduction goals might reflect changing diagnostic practices rather than an actual increase in incidence. Therefore, these results do not necessarily indicate that public health efforts to lower the incidence of foodborne diseases are not working.

Congress urged not to delay effective date of FDA traceability rule. The Safe Food Coalition, a group of food safety advocate organizations, is calling on US lawmakers to push back against the Food Traceability Enhancement Act (FTEA), a bill that would delay and in some cases eliminate key requirements of section 204 of the Food Safety Modernization Act’s food traceability rule, which requires additional record keeping requirements for certain foods on FDA’s food traceability list. This rule would apply to nearly all companies in a supply chain of these foods, including retailers, restaurants, and warehouses. The bill would eliminate certain requirements for these three types of businesses. The Food Industry Association (FMI), a key backer of the FTEA, says the traceability requirements are too burdensome for businesses to implement by the January 26, 2026 deadline. However, the Center for Science in the Public Interest argues that legislation will undermine the purpose of the legislation and that responsible members of the food industry are already working with FDA to comply with traceability requirements by the original compliance deadline.

FDA warns Bimbo Bakeries about labeling violations. On June 17, the FDA issued a warning letter to Bimbo Bakeries USA, the owner of multiple major bakery brands, for mislabeling and misbranding its products. Most notably, the bakery has been listing allergens on many of its product labels that were not present in the product The letter identified this mislabeling as a violation of section 403(a)(1) of the Federal Food, Drug, and Cosmetic Act. Since the products do not include these potential allergens, the agency suggested that the brand add an additional voluntary allergen statement instead, eg, “may contain sesame”. In September 2023, FDA released a draft guidance intended to help food facilities comply with current good manufacturing practices and preventive controls for human food, noting it was acting because some manufacturers, in response to the FDA’s decision to declare sesame a major allergen, had started to label their products as containing sesame rather than taking measures to prevent cross-contamination.

Appeals court rejects challenge to California Prop 12. On June 25, the US Court of Appeals for the Ninth Circuit dismissed an appeal from the Iowa Pork Producers Association (IPPA), which had been attempting to reverse California’s Proposition 12. The US appeals court affirmed a lower court decision to dismiss the IPPA’s motion for a preliminary injunction against the proposition. Prop 12 sets California standards for the sale of certain egg, veal, and pork products – most notably, it bans the sale of pork in California from farms anywhere in the country that confine pregnant pigs in “gestation crates” for almost their whole lives. The lower court had concluded that Proposition 12 does not discriminate against out-of-state pork producers, reasoning that because the statute treats all private companies in the same manner, it does not discriminate against interstate commerce. In May 2023, a narrowly divided US Supreme Court rejected a challenge by the National Pork Producers Council and the American Farm Bureau Federation to California’s Proposition 12 law against animal confinement.

Misbranding claim based on California law is reinstated. On June 28, the US Court of Appeals for the Ninth Circuit reinstated a lawsuit alleging that Sprout Foods Inc. has misbranded its baby food products, ruling that the plaintiff’s California Sherman Law and unjust enrichment claims are not impliedly preempted by federal law. The Sherman Law is a parallel statute to the federal Food, Drug, and Cosmetic Act. The federal food labeling statute at issue, the majority opinion found, allows states to enact labeling standards so long as they are identical to the federal standards; California, the opinion stated, has done that. However, the panel also affirmed the district court’s dismissal of the plaintiffs’ fraud-based claims because the claims were subject to the heightened pleading requirements of the Federal Rules of Civil Procedure, and the allegations failed to allege with particularity why the products were harmful.

NRDC report highlights impacts and opportunities for supermarkets and retailers of sustainably sourcing products. A new report from the National Resources Defense Council, Selling the World’s Forests, details the impact of US supermarkets and retailers when offering products that harm climate-critical forests. Our alert reviews the report, then looks ahead to discuss opportunities for growth in translating ESG initiatives into consumer demand.

Avian flu update. The H5N1 virus has spread around the world, primarily infecting, and often devastating, wild bird populations. In 2022, it began infecting domestic poultry flocks – the latest figures from the USDA state that in the US alone more than 97 million birds in commercial flocks have died in the outbreak. This year, the virus has also leapt to dairy cattle in Colorado, Idaho, Iowa, Kansas, Michigan, Minnesota, New Mexico, North Carolina, Ohio, South Dakota, Texas, and Wyoming.

• On July 3, the CDC reported that a Colorado dairy worker has tested positive for H5N1 following exposure to infected cows. This is the fourth human infection discovered this year in the US associated with the bird flu outbreak in dairy cows. The infection was discovered because the worker’s health was being monitored after exposure to sick cattle.


• On July 10, Colorado Governor Jared Polis issued a disaster emergency declaration after flu was detected at a Weld County commercial egg farm. The operation’s 1.78 million chickens are being culled. With the declaration, the state will be able to help the producer with response, recovery, and mitigation.


• In a July 5 update, the CDC reiterated its recommendation that “people should not drink raw milk. Pasteurization kills A(H5N1) viruses, and pasteurized milk is safe to drink.” The FDA is continuing its awareness campaign, launched in early June, about the dangers of consuming raw milk. Groups such as the Raw Milk Institute have referred to the warnings from federal agencies as “fearmongering.” Consumption of raw milk in the US continues to rise.


• Moderna is accelerating the development of a messenger-ribonucleic-acid-based (mRNA) pandemic influenza vaccine that would protect humans from H5N1. A $176 million grant from the Department of Health and Human Services US Biomedical Advanced Research and Development Authority, announced July 2, will be used to complete late-stage development and testing of the vaccine. The mRNA technology allowed swift development and rollout of vaccines protecting against COVID-19.


• On June 25, Kansas, Nebraska, New Mexico, and Texas announced the launch of voluntary pilot programs to test for the virus in bulk milk tanks. On June 27, federal officials announced that starting July 1 applications would be accepted for grants to provide financial assistance to eligible dairy producers who incur milk losses due to H5N1.


• Health and agricultural officials across the country continue to think about the interplay between the outbreak among dairy cattle and the summer state and county fair season. On July 2, the Missouri Department of Agriculture announced that any dairy cows to be exhibited during the 2024 Missouri State Fair must test negative for H5N1 within seven days of transit to the fair. The fair takes place August 8 – 18. No cases of H5N1 have been found in any Missouri cattle, but, said State Veterinarian Steve Struhberg, "These health requirements are in place for the 2024 Missouri State Fair in an effort to protect the dairy industry and all of agriculture.” See our recent coverage of other states’ approaches.