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.

• Federal government dietary guidelines remain much as they were before. The USDA and the US Department of Health and Human Services have announced the latest version of the Dietary Guidelines for Americans – the guidelines that will apply in the years 2020-2025. As expected, the new guidelines, issued on December 29, continue to affirm the benefit of a diet rich in fruits, vegetables, legumes, nuts, whole grains, seafood and low-fat dairy products, while recommending moderation in red and processed meats, refined grains, saturated fats, and added sugars. However, the guidelines, rather than adhering to a federal advisory committee’s suggestion, made no change in the recommendation that added sugars be limited to 10 percent of total calories. The committee had recommended that added sugars stay below 6 percent of total calories. Also retained in the new guidelines is the recommendation that men limit themselves to no more than two alcoholic drinks per day and women to no more than one drink; many experts had urged a recommendation for both genders of no more than one alcoholic drink per day.
• USDA seeks produce industry input on new food safety survey. On January 11, the USDA announced the rollout of an anonymous online survey asking produce industry stakeholders – ranging from growers, packers and buyers to suppliers, regulators and educators – about the biggest food safety challenges they face. Meredith Melendez, principal investigator of the survey and a Rutgers cooperative extension agent, said, “We are trying to understand what food safety concerns keep the produce industry up at night – in general, what are their biggest concerns.” Participants are asked to rank the top five food safety management areas that need improvement. The survey’s design will allow researchers to understand the produce industry’s food safety priorities nationally, regionally, by state, and by industry segment. It is the first part of a long-term study of produce safety and environmental issues throughout the supply chain. The survey takes about 10 minutes to complete – see the survey here.
• USDA proposes new jurisdiction over gene-edited livestock. The USDA on December 21 formally announced that it is proposing to transfer portions of the its regulatory oversight of animal biotechnology to USDA jurisdiction. If the proposal is adopted, the USDA would become the agency with primary oversight over gene-edited livestock. The proposal will first go through a 60-day public comment period, and thus, although it originated in the Trump Administration, will face approval or disapproval by the Biden Administration. “ Science-based advances in biotechnology have great promise to continue to enhance rural prosperity and improve the quality of life across America’s heartland and around the globe,” said Agriculture Secretary Sonny Perdue in announcing the proposal. “With this effort, we are outlining a pragmatic, science-based, and risk-based approach that focuses on potential risk to animal and livestock health, the environment, and food safety in order to provide our farmers and ranchers the tools they need to continue to feed, clothe and fuel the world.”
• Sellers of acacia gum petition FDA for approval as a dietary fiber, citing positive effects on human health. On December 29, a group of sellers of acacia gum filed a petition with the FDA, bringing what they say is new scientific data to prove that acacia gum should be classified as a dietary fiber on food labels. The petition contends that acacia gum has a positive impact on glucose and insulin levels after it is consumed in a meal. Under the FDA’s rules, isolated or synthetic non-digestible carbohydrates must have been determined to have beneficial physiological effects before they can be counted as dietary fiber on Nutrition Facts labels. According to the petition, the positive effects of acacia gum on glucose and insulin mean that the product can help prevent diabetes and heart disease.
• Whole Foods receives FDA warning letter regarding food allergens. On December 23, the FDA for the first time issued a warning letter to a retail establishment, Whole Foods, for engaging in a pattern of selling store-branded food products that failed to declare all major food allergens in the products. The warning letter noted that from the time period October 2019 to November 2020, Whole Foods had recalled 32 food products due to undeclared allergens. While retail establishments are excluded from certain labeling requirements such as allergen declarations, retailers are still responsible for ensuring proper labeling for food manufactured under their brand name.
• Arkansas faces lawsuit by bar owners over curfew. On January 6, more than 20 bar owners in Arkansas filed a lawsuit in state court challenging a COVID-19-related state curfew which prohibits alcohol sales after 11 pm every night, alleging that the curfew is destroying their business. The lawsuit seeks an injunction to bar further enforcement of the curfew, which was implemented on November 20, and names as defendants the state’s governor, the director of the state’s Alcoholic Beverage Control commission, and the state’s secretary of health. According to a bar owner who helped file the lawsuit, bars in Arkansas face tougher COVID-19 enforcement than other businesses, and the high cost of liquor permits and taxes related to alcohol also put bars at an economic disadvantage. “To add insult to injury, now we have to close during our peak hours,” he said. “How do you expect us to survive?” Lawsuits challenging COVID-19- related restrictions on bars and restaurants have recently been filed in a number of states, among them Arizona, California, Louisiana, Missouri, New York, North Carolina and Oklahoma. At the end of December, the CDC issued its strongest guidance to date about indoor venues, stating, “Indoor venues, where distancing is not maintained and consistent use of face masks is not possible (eg, restaurant dining), have been identified as particularly high-risk scenarios.”
• Court rejects deception claim for Orijen dog food. On December 22, the US District Court for the District of Minnesota dismissed a proposed class action that alleged Champion Petfoods misled consumers about the quality of its Orijen dog food and concealed the existence of traces of heavy metals and barbiturates in the product. The court held that no reasonable consumer could be deceived by the statements on the product packaging. For example, the court noted that the term “biologically appropriate” used to describe the dog food was highly unlikely to be interpreted by the average consumer as a guarantee that the dog food contains no heavy metals or as a guarantee that it contains no BPA. Champion Petfoods asserted at trial that the phrase simply means that the dog food mirrors the richness, freshness and variety of a dog’s natural prey and that it is protein rich and carbohydrate limited. The judge did not accept the plaintiff’s alternative interpretation.
• King’s Hawaiian sweet rolls are targeted because they’re not made in Hawaii. On January 1, a New York consumer sued the manufacturer of King’s Hawaiian sweet rolls in a class action alleging false and misleading advertising because the rolls are now made in California rather than in Hawaii. “King’s Hawaiian has been known as the most authentic purveyor of its eponymous Hawaiian rolls,” plaintiff’s attorney Spencer Sheehan said. “Unfortunately, the labeling gives consumers the impression that it's made in Hawaii. It's not.” The lawsuit, filed in the US District Court for the Southern District of New York, says that had the plaintiff known that the rolls were not made in Hawaii, he would not have paid as much for them as he did, or he would not have purchased them at all. The front label of the package of the rolls mentions “Hilo, Hawaii,” where the rolls were originally made in the 1950s, the complaint says.