Food and Beverage News and Trends - November 26, 2024

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

FDA seeks input on human food export certification program. Companies that export human food products from the US are often asked by foreign governments or customers to supply an export certification for FDA-regulated products, described by the agency as an official attestation of a product’s regulatory or marketing status, based on available information at the time the certificate is issued. The agency provides such information about human food exports in the form of certificates or export lists. Now the FDA is seeking public input on its current approach to managing this certification process, aiming to help the Human Food Program take into account the full range of perspectives regarding the export list component of the Export Certification Program. FDA states, “We invite comments on the challenges and experiences elated to meeting the listing requirements of other countries and the FDA's certification processes for export lists.” Comments may be submitted via the Federal eRulemaking Portal or by mail by January 7, 2025.

Information call for Canadian grocery retailers – lease exclusivity rights and owned lands restrictive covenants. Canada’s Competition Bureau has released an information call for retail grocery sector market participants with the goal of assessing “whether property controls imposed by grocery retailers are harming competition.” See our concise alert.

FSIS to hold virtual meetings for stakeholders on Salmonella Framework. In August, FSIS announced a proposed rule that would establish final product standards to prevent raw chicken carcasses, chicken parts, ground chicken, and ground turkey products that contain any type of Salmonella at or above 10 colony forming units (CFU) per gram/ml and any detectable level of at least one of the Salmonella serotypes that USDA identifies to be of public health significance from entering commerce. It also issued a determination that such products are adulterated within the meaning of the Poultry Products Inspection Act. Stakeholders have submitted numerous comments on this Salmonella Framework for Raw Poultry Products. Indeed, the comment period has been extended twice and currently is slated to close January 17, 2025. Now, FSIS will hold two virtual meetings in early December which, it states, “will provide an opportunity for a small group of varied stakeholders to present their views and engage in discussion.” The meetings will take place Tuesday, December 3 and Thursday, December 5 from 1 PM to 4 PM EST. Registration will be announced in the Federal Register and coming FSIS Constituent Updates. Written comments on the proposed rule and determination may be submitted online via the federal eRulemaking portal.

Canada: National Potato Wart Response Plan consultation following Federal Court of Appeal decision. The Federal Court of Appeal has dismissed an appeal brought by the Prince Edward Island (PEI) Potato Board of a Federal Court decision. The Court had dismissed the judicial review of a Ministerial Order that declared PEI “a place infested with potato wart” and prohibited the movement of PEI seed potatoes from outside of PEI without authorization from an inspector.

Potato wart is a soil-borne fungus that attacks potato plants, deforming potatoes and reducing yield, and that can survive in the soil for more than 40 years; there are no chemical treatments available to control the fungus. It is a regulated pest in Canada as well as the majority of Canada’s trading partners (including the US, where it has been declared eradicated).

The PEI Potato Board alleged there was no scientific backing for the Ministerial Order, and that there was no “infestation” of potato wart in PEI. The Court considered the Plant Protection Act and its corresponding regulation and the meaning of “infestation,” then ruled that it was reasonable of the Minister to declare PEI “a place infested with potato wart” and that a reasonable suspicion of the infestation was sufficient. The PEI Potato Board had also alleged that the Minister made the order improperly, out of fear of a US trade order that could negatively impact the Canadian potato industry. The Court held that the Minister was entitled to consider trade concerns. Ultimately, the Court held that the Minister's order was reasonable and dismissed the appeal. The decision was released on November 4, 2024.

On November 5, 2024, the CFIA launched a final public consultation to seek feedback on a National Potato Wart Response Plan. Responses may be submitted until January 6, 2025. The draft response plan proposes new measures to improve the processes the government uses to help contain, control and prevent the spread of potato wart in Canada (excluding Newfoundland and Labrador). The measures, including the use of resistant varieties, increased soil analysis, and the addition of equipment cleanliness requirements would be applied to fields following the detection and confirmation of potato wart and an investigation procedure to delimit the potential spread. Once finalized, the response plan will replace the Potato-Wart Domestic Long-Term Management Plan (PWDLTMP) and an accompanying transition plan will be developed. The transition plan will consider all the steps completed under the current PWDLTMP when confirming the path for lifting phytosanitary measures for fields in PEI that are currently restricted due to potato wart. The CFIA welcomes comments from those in the potato industry, consumers, trading partners, and other special interest groups.

CFIA issues Notice to Industry in regard to Class II recall on salt manufactured between October 7 and October 11, 2024. On November 18, 2024, the CFIA expanded an ongoing salt recall to include additional products and issued a Notice to Industry about potential metal fragments in food-grade salt. The initial Class II recall, issued on October 30, 2024, was to the manufacturer and warehouse level for Sifto brand Hy Grade Salt due to pieces of metal. The affected products represent a significant volume of food grade salt that was distributed to various manufacturers and distributors in Ontario and impacts other large Canadian manufacturers. On November 4, 2024, the CFIA issued a notification for a Class II recall to the retail level for various brands of bread and buns recalled due to pieces of metal. This recall is linked to the recall of Sifto salt, as the affected salt was used to make the recalled bread and bun products. The company has also initiated a market withdrawal of all salt manufactured between September 18 and October 6, 2024, and between October 12 and November 6, 2024. A market withdrawal is the regulated party’s removal of a marketed product that is in contravention of legislation administered by the CFIA, but does not represent a level of health risk that meets the CFIA’s criteria for a recall.

Canadian consultation on proposed compositional requirements for infant foods. On November 8, 2024, we reported on the consultation on proposed compositional requirements for infant foods and foods currently regulated as foods for special dietary use. On November 20, 2024, Health Canada extended the consultation by 30 days. The consultation period will now close on January 22, 2025.

Canada: Modification to the Table of Reference Amounts for food. Canada’s Bureau of Nutritional Sciences has published a modification to the Table of Reference Amounts for food (TRA) that applies to very high fiber cereals, nutritional yeast, and fondue cooking broths. Reference amounts represent the amount of a specific food typically consumed in one eating occasion and are used to determine what is considered to be the size of single-serving prepackaged products, the serving size for a Nutrition Facts table for multiple-serving packaged products, and the criteria for making nutrient content and other health claims. The TRA is incorporated by reference into the Food and Drug Regulations. The modifications were responsive to industry comments provided to Health Canada’s Notice of proposal to update the nutrition labelling: Table of reference amounts for food.

US: Organic carrot recall. The FDA is recalling organic whole carrots and organic baby carrots sold under an array of brand names across the US over contamination with Shiga toxin-producing E. coli. The carrots have been shipped to retail outlets across the US, Puerto Rico, and Canada. The CDC says the carrots may be the cause of a multistate E. coli outbreak that as of this writing has sickened 39 people across 18 states, hospitalizing 15 and causing one death. While the carrots are past their best-if-used-by-dates, the FDA notes, consumers may still have them in their refrigerators or freezers.

Climate change recovery and adaptation strategies for growers and food security in Quebec and Prince Edward Island. The government of Canada, in conjunction with the government of Quebec, is launching the Canada-Quebec Initiative to Help Mitigate the Impacts of Excess Rainfall in Quebec (also known as AgriRecovery). The initiative will provide an additional CA$22.2 million beyond sums that have already been allocated to assist with offsetting the costs incurred by vegetable, potato, strawberry, and raspberry growers affected by adverse weather conditions in summer 2023. An online registration period for affected producers will run from December 2024 to February 2025. This AgriRecovery initiative is cost-shared by the federal government and the province on a 60-40 basis, as set out by the Sustainable Canadian Agricultural Partnership.

Meanwhile, in the maritime province of Prince Edward Island (PEI), the provincial government has developed the PEI Seafood Sector Climate Change Adaptation Strategy. The recommendations include holding climate readiness trainings and presentations, collaborating with researchers on innovation design solutions and gear guidelines, and establishing a climate impact monitoring program and a seafood industry resilience program. The provincial government is expecting to engage with federal partners, industry association, academic institutions, and the Indigenous community of PEI to develop further options over the coming months. PEI’s commercial fishery and aquaculture industry has an economic value of $850 million and employs 8,000 people each year.

LA County lawsuit takes on plastic producers, but New York dismissal signals hurdles. Two recent developments in the rapidly evolving area of plastics litigation illustrate the growing trend of states and municipalities pursuing plastic packaging producers in court, while also highlighting the significant headwinds those plaintiffs may face. A case in Los Angeles County lawsuit claims that responsibility for the environmental impacts of plastic pollution in California rests in part with food and beverage companies that market their packaging as recyclable and that such marketing is inherently misleading. Meanwhile, a New York court granted PepsiCo’s motion to dismiss a similar suit. Our alert tells you more.

Denver rejects anti-slaughterhouse ordinance. On Election Day, November 5, Denver voters opted to reject a ballot ordinance that would have banned slaughterhouses within the city’s limits. The vote was about 65 percent to 35 percent. A group opposed to the ordinance named “Stop the Ban, Protect Jobs” began a campaign against it in early 2024, asserting that the ban unfairly targeted a 70-year-old employee-owned business. Over the last few months, the campaign contended that the cost of shipping meat from out of state would increase along with plant closures and job losses. The ordinance was placed on the ballot after an animal rights group, Pro-Animal Future, gathered more than 30,000 signatures.

Avian flu update.

• On November 19, the California Department of Public Health reported a possible case of H5N1 in a child in the Bay Area. The child had no known contact with an infected animal. This is being considered a “possible” case until confirmed by the CDC. On November 15, the CDC announced that an unnamed individual in Oregon has contracted H5N1 flu - the first such case of human infection found in Oregon. To date, the CDC has confirmed H5N1 infections in 53 people in the US, almost all of them agricultural workers.
  
  
• Also on November 15, the Hawaii State Department of Health confirmed Hawaii’s first discovery of avian flu in a poultry flock. The virus, detected on Oahu, matches the strain that has infected domestic poultry and dairy cows on the continental US. Before this, Hawaii was the only US state where H5N1 had not been found. That same day, Arizona Department of Agriculture officials announced they had detected the virus in a commercial egg operation in Pinal County.
  
  
• On November 11, the British Columbia Centre for Disease Control reported Canada’s first domestically acquired human H5N1 infection, in a teenager who at this writing was hospitalized in critical condition with acute respiratory distress syndrome and who had no known exposure to livestock. Furthermore, Canadian health officials report that as of November 18, there are 41 infected poultry farms in British Columbia with an estimated 6,562,000 birds impacted, as well as 3 infected premises in Alberta, 2 in Quebec, and 1 in Saskatchewan.
  
  
• The CDC on November 7 announced it is now recommending that farm workers who have been exposed to animals with bird flu should be tested for the virus even if they do not have symptoms. In a new report, it estimates that about 7 percent of US dairy workers exposed to H5N1 have become infected themselves and that many of these infections may be asymptomatic. It is also recommending that farm workers who milk cows and deal with sick poultry use personal protective equipment.