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.
Reagan-Udall Foundation releases report on FDA Human Foods Program. The Reagan-Udall Foundation has released its highly anticipated report, Operational Evaluation of the FDA Human Foods Program, with findings and recommendations resulting from an independent Expert Panel’s evaluation of FDA’s Human Foods Program. Our partner Sharon Mayl, with 28 years of experience in the Human Foods Program, was privileged to be asked to provide input to the Expert Panel. Read her concise look at the report, its findings and its recommendations.
The first phase of Canada’s single-use plastics ban comes into effect December 20. A ban on the manufacture and import for sale on five categories of plastics will come into effect across Canada on December 20, 2022. These categories of plastics include checkout bags, cutlery, takeout containers, stir sticks, and straws. This ban marks the beginning of a larger nationwide ban on single-use plastics as part of the federal government’s goal of achieving zero plastic waste by 2030. The prohibition on single-use plastics is taking effect in stages, with two more stages following the December 20, 2023 ban. On December 20, 2023, a ban on the sale of these products will begin and on December 20, 2025, a ban on the manufacture, import and sale for export of these products will take effect. Ring carriers or six-pack rings will be banned on a different schedule: a ban on the manufacture and import of plastic ring carriers takes effect on June 20, 2023; a ban on their sale takes effect on June 20, 2024; and a ban on their manufacture, import and sale for export takes effect on December 20, 2025. Further details on the products included in this prohibition may be found on the Government of Canada’s website.
FDA gives guidance to industry on how to list major food allergens. On November 30, the FDA issued two guidance documents about food allergen labeling requirements, intended to help the food industry meet the requirement to list all significant food allergens on the labels of FDA-regulated foods. Federal law currently identifies eight foods as major food allergens: milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. The Food Allergy Safety, Treatment, Education, and Research Act of 2021, adds sesame to the list, effective January 1, 2023, making it the ninth major food allergen recognized on the United States. The draft guidances include Q&As for manufacturers to help them meet the existing legal requirements. The FDA said, “Food labels are a powerful tool to help protect consumers with food allergies. Consumers can avoid ingredients they may be allergic or sensitive to in a food by looking for specific allergen labeling and reading the ingredient list.”
USDA will update list of foods permitted in key federal program. On November 17, the USDA announced it will make changes in the foods permitted in the federal Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) food package. More than six million Americans rely on the program. The proposed rule will update the program to follow the latest recommendations of the 2020-2025 Dietary Guidelines for Americans and the National Academies of Sciences, Engineering and Medicine. The proposed changes will allow more purchases of fruits and vegetables, limit purchases of juices, require all approved cereals to be at least 50 percent whole grain, permit only unflavored milks, and set sugar limits for yogurts and soy beverages.
FDA extends comment period on “healthy” rule. On November 30, the FDA announced that it is extending the comment period for its proposed rule that would define the term “healthy” as a nutrient claim for a food. The proposed rule appeared in the Federal Register on September 29. The new deadline for comments is February 16, 2023. The agency said that it is extending the comment period by 50 days in response to a request from stakeholders to allow additional time for interested persons to develop and submit comments. The proposed rule would make more foods eligible to use the “healthy” claim, such as nuts and seeds, higher-fat fish (such as salmon), certain oils and water.
BCCDC says dramatic increase in avian influenza cases increases risk of transmission to humans. The British Columbia Centre for Disease Control (BCCDC) has issued a warning that avian influenza cases have increased to a point where transmission to humans is becoming more likely. In an advisory issued on December 2, 2022, the BCCDC said that half of all affected poultry premises in British Columbia have been detected since mid-November. Physicians have been asked to test human patients for avian influenza if they present with known symptoms of avian flu (including cough, sore throat, fever, fatigue, and headache) if they may have come into contact with an infected bird. The Canadian Food Inspection Agency investigates potential and known outbreaks of avian influenza and destroys all poultry at locations with known infections. The BCCDC recommends cooking poultry products well and avoiding contact with infected birds and contaminated surfaces.
House of Commons Agriculture Committee launches probe on inflation profiteering claims. The House of Commons probe into grocery stores’ inflation profiteering began this month. Karl Little, the Senior Vice-President of Public Affairs for the Retail Council of Canada, who testified before the Committee, reported that “[the industry is] experiencing a unique confluence of events - war, extreme weather and soaring fuel prices, all piling on top of supply chain disruptions and labour shortages.” The Committee met again on December 12 to discuss pricing in the grocery industry.
Groups ask California to require warning labels on food dyes. On December 8, several nonprofit groups oriented to food and nutrition sent a petition to the California Department of Public Health asking the state to require warning labels on synthetically dyed foods and supplements. The groups noted that the state has determined that synthetic food dyes can cause or exacerbate neurobehavioral problems in some children. Warning labels, they added, could help inform parents, guardians, schools, and others who purchase foods and drinks for kids to better understand and reduce the risks. The warning labels would apply to color additives FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.
Canada continuing to research and monitor PFAS in food packaging. Per- and polyfluoroalkyl substances (PFAS) are a family of substances frequently found in a variety of consumer goods, including nonstick pans and grease-resistant packaging used in supermarkets and fast-food chains. A growing number of US states have committed to eventually banning the use of PFAS or a subset; Canada has not yet taken steps to address the use of PFAS in food packaging. In 2022, the federal government proposed a new regulation, the Prohibition of Certain Toxic Substances Regulations, 2022 which would address and restrict the use, sale, or import of PFAS substances in Canada, and has invited public comments to inform the final version of the Regulations. The Regulations will come into force six months after the final version is published in the Gazette; as of December 12, 2022, the final Regulations have yet to be published. This is an evolving area and further changes in Canada are anticipated. See our alert on Maine’s January 2023 deadline to report PFAS in products.
CSPI urges consumers not to eat products with titanium dioxide. On December 5, the nonprofit Center for Science in the Public Interest announced that it has placed titanium dioxide on its list of food additives that consumers should seek to avoid. The compound adds a bright white color to coffee creamers, baked goods, chewing gums, hard-shell candies, puddings, frostings, dressings, and sauces – but, CSPI said, the nanoparticles found in “food-grade” titanium dioxide may accumulate in the body and damage human DNA – which is one way in which chemicals cause cancer and other health problems. In all, more than 1,800 consumer products sold in the US contain titanium dioxide, and the substance is banned as a food additive in the EU. The CPSI noted that unlike other chemicals added to food, titanium dioxide has no nutritive, preservative, or food safety aspect; its use is completely cosmetic.
Court permits lawsuit over serving size to proceed. On December 1, the District Court of the Southern District of New York ruled that a lawsuit concerning the stated serving size for a “superfood” coffee creamer is not barred by federal food labeling regulations and can proceed. The lawsuit notes that the packaging of the product, made by Laird Superfood Inc., says that it provides about 114 servings per container if consumers use a serving size of two grams. “However, one teaspoon of the Superfood Creamer Unsweetened does not weigh 2 grams. It actually weighs approximately 3.1 grams,” the class action complaint states. “In other words, a consumer only receives approximately 64% of the promised number of servings.” The court stated that the plaintiff “has plausibly alleged that she has been injured because she paid a higher price for the Products she purchased than she otherwise would have.”
Article says labeling and packaging won’t reduce obesity. An opinion article published in Forbes on December 1 contends that despite good intentions and despite recommendations arising from the recent White House Conference on Hunger, Nutrition and Health, an industrywide overhaul of food packaging is unlikely to make a dent in ever-growing obesity rates worldwide. The article noted that similar efforts in other countries did nothing to reduce obesity. It concludes from various studies that “nutritional labeling merely preaches to the choir: reassuring health-conscious consumers they are making good choices but not getting through to the people who need it the most. The author concluded, “I applaud the White House Conference on Hunger, Nutrition & Health for taking on this grave health problem. My advice: give labeling your best shot, but don’t expect it to do too much to alleviate the complex problem of obesity.”
