Food and Beverage News and Trends - September 6, 2024

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

USDA guideline encourages third-party certification of animal-raising and environmental claims. On August 30, the USDA’s Food Safety and Inspection Service announced an updated guideline that strongly encourages the use of third-party certification to substantiate animal-raising or environment-related claims such as “Raised Without Antibiotics,” “Grass-Fed,” “Free-Range,” and Climate-Friendly.” The agency said, “Third-party certification of animal-raising or environment-related claims helps ensure that such claims are truthful and not misleading by having an independent organization verify that their standards are being met on the farm for the raising of animals and for environmental stewardship.” In response, the Animal Welfare Institute said it is “extremely disappointed” by the update and that USDA should “require — not merely ‘strongly encourage’” use of independent third-party certifiers to substantiate such claims.

Canadian rail lockout: government compels arbitration, union files appeals. On August 29, the Teamsters Canada Rail Conference (TCRC), which represents 10,000 rail workers in Canada, filed four separate appeals in the Canadian Federal Court of Appeal challenging the federal government’s recent actions seeking to end a bitter nationwide railway contract dispute. The dispute has significant implications for cross-border trade and the supply chain. On August 22, negotiations broke down between Canadian National Railway (CN) and Canadian Pacific Kansas City (CPKC) and their employees who are members of the Teamsters Canada Rail Conference (TCRC). CN and CPKC announced they would lock out their employees, bringing their trains to a halt nationwide. That same day, Federal Labour Minister Steve MacKinnon invoked Section 107 of the Canada Labour Code, ordering the Canadian Industrial Relations Board (CIRB) to impose binding arbitration and ordering the railroads and the union members to return to work. He also directed CIRB to extend the terms of the current collective agreements until a binding decision is made. CIRB then ordered the TCRC members to return to work until binding arbitration could produce new contracts. In its appeals, TCRC alleges that the Labour Minister’s directives went beyond the powers of his jurisdiction and that the directives and CIRB’s decision breached the TCRC’s freedom of association enshrined in the Charter of Rights and Freedoms. A work stoppage would impact both the Canadian and US economies: about 75 percent of Canadian exports (such as autos and auto parts, chlorine and other chemicals used to treat drinking water, coal, and grain and other agricultural products) are sold to the US. Grain Growers of Canada estimated that every day the railroads are shut down costs Canadian farmers $50 million. A work stoppage of more than three or four days, sources note, could bring US auto production to a halt.

California legislators vote to keep six food dyes out of school meals. The California Food Safety Act is heading to the desk of Governor Gavin Newsom. The bill, which passed the legislature on August 29, will ban six synthetic dyes from being used in foods offered to children in California schools. The California Food Safety Act will prohibit school districts, county superintendents of schools or charter schools with grades K-12 from offering foods or beverages containing Red Dye No. 40, Yellow Dyes Nos. 5 and 6, Blue Dyes Nos. 1 and 2, and Green Dye No. 3. It is expected that Governor Newsom will sign the bill, which would then take effect on December 31, 2027. California has already banned four substances from use in foods statewide.

And California moves to ban plastic grocery bags. California’s legislature has passed a law that will effectively ban all plastic grocery bags offered at point of sale. The bill, which awaits Governor Gavin Newsom’s signature, would completely prohibit grocers from offering shoppers any types of bags that aren't made of recycled paper. The goal of the bill is to cut down plastic bag waste going to landfills and drive consumers to bring their own reusable bags. Ten years ago, California tried to ban the use of plastic grocery bags but left a loophole that allowed grocers to offer customers thick, heavy plastic bags that could theoretically be reused after purchase. A report from consumer advocacy group CALPIRG showed that Californians threw out 157,385 tons of plastic bag waste in 2014; by 2021, they were discarding 231,072 tons of plastic bags, a 47 percent jump.

Canadian government proposes guidance for labelling plant-based alternatives to egg products. The Canadian Food Inspection Agency (CFIA) has initiated a 90-day consultation to seek feedback on proposed guidance for how to label and represent plant-based alternatives to egg products. Plant-based alternatives to egg products do not currently fall within the definition of egg products in the Safe Food for Canadians Regulations. The guidance therefore seeks to clarify how to distinguish plant-based alternatives from egg products and to explain how the different components on labels should be used so as not to be misleading.

Canada: Safe recipe style guide. Health Canada has published a safe recipe style guide, created to encourage anyone who sets down recipes to follow food safety steps. The style guide provides a list of food safety tips, in a simple, accessible format, for recipe writers, food journalists, bloggers, and chefs, to encourage the inclusion of food safety guidance in recipes. The guide is premised on the idea that if food safety instructions are incorporated directly into recipes, consumers will be more likely to follow them, which may help prevent the spread of foodborne illness. It was inspired by the US Partnership for Food Safety Education’s Safe Recipe Style Guide (2019). The guide outlines four key food safety messages: clean hands and surfaces, separate raw and cooked food, cook foods to proper temperatures, and keep cold food cold by refrigerating or freezing. See the Safe recipe style guide: Shaping food safety behaviours here.

First wrongful death lawsuit in deli meat listeria outbreak. The first wrongful death lawsuit has been filed in the outbreak of listeria traced to Boar’s Head deli meats. That outbreak, the CDC says, has led to at least 57 hospitalizations and nine deaths in 18 states since the company issued a recall of its deli meats in July. All those who died, the CDC said, were 70 or older. Boar’s Head has expanded its recall to cover every product manufactured at its Jarrat, Virginia plant. From June 2023 to August 2024, USDA inspectors listed 84 problems at the facility, such as black mold, dead flies, and water dripping over meat. The Virginia Department of Agriculture stated that the plant had corrected those problems but that it has shuttered the plant until it “is able to demonstrate it can produce safe product.” The wrongful death lawsuit, filed in Sarasota, Florida, where Boar's Head is headquartered, was brought by the family of Gunter Garshon Morgenstein, 88.

Avian flu update.

• H5N1 has now been found in three dairy herds in California’s Central Valley – the first time the virus has been detected in the state. California’s Department of Food and Agriculture says the cows have been quarantined and that the agency has been preparing for this possibility since H5N1 was confirmed in other states’ dairy farms. California is the leading dairy producer in the US.


• On August 29, the CDC recognized the first known US cluster of bird flu cases in humans, at two poultry facilities in Colorado. The nine workers (who already had beencounted among the 13 known US bird flu patients) were infected by sick poultry during a massive culling operation. Addressing this report, on August 29 the CDC’s Morbidity and Mortality Weekly Report stated, “U.S. public health agencies should prepare to rapidly investigate and respond to illness in agricultural workers, including workers with limited access to health care.”


• The Duke Human Vaccine Institute in Durham, North Carolina, will begin production this fall of H5N1 avian flu vaccines for use in human clinical trials. The program is moving forward with $7 million in funding from the National Institute of Allergy and Infectious Diseases, with a goal of starting Phase 1 trials in early 2025.


• State and county fairs across the US have instituted stricter biosecurity protocols to address the spread of avian flu. Most states are allowing poultry to be shown, but have instituted an array of testing requirements. In Colorado, for the first time in its 150-year history, the Colorado State Fair will not allow exhibition of live poultry. Many states’ Departments of Agriculture are mandating that any cattle coming to fairs be tested for H5N1 before traveling. In Missouri, where the Department of Agriculture is covering the cost of the testing, exhibitors are not being allowed to milk their cows in the communal parlor. Other fairs are taking more unusual approaches. In both Minnesota and Michigan, this year, the popular cow-milking demonstration is featuring artificial animals – fiberglass cows with rubber udders. Michigan’s cows are named Buttermilk and Milkshake, and Minnesota’s is named Olympia.