Food and Beverage News and Trends - February 24, 2025

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

Jim Jones resigns. Jim Jones, Deputy Commissioner for Human Foods at the US Food and Drug Administration (FDA), has resigned. In his February 17 resignation letter to Acting FDA Commissioner Sara Brenner, Jones said, “I was looking forward to working to pursue the department’s agenda of improving the health of Americans by reducing diet-related chronic disease and risks from chemicals in food” – but “the Trump Administration’s disdain for the very people” needed to achieve these goals makes it “fruitless for me to continue in this role.” In an interview later that day, Jones said that 89 people in the food division had been fired, effectively dismantling the division. He noted that the layoffs at the agency targeted specialists in nutrition, infant formula, and food-safety response, including 10 staff members responsible for reviewing potentially unsafe food ingredients. Jones stated, “I’m not sure if it’s a lack of understanding of how things get done, or it’s that there’s really no seriousness about what they want to get done. I don’t know. But I didn’t want to spend the next six months of my career on activities that are fundamentally about dismantling an organization, as opposed to working on the stated agenda.” Jones joined the FDA in November 2023 to forward the unified human foods program reorganization. Scott Faber, senior vice president of government affairs at the Environmental Working Group, said Jones’ departure will "set back efforts to make food safer." On February 21, Bloomberg reported that attorney Kyle Diamantas is expected to be announced as the new deputy commissioner for human foods. The FDA website’s employee directory currently lists Diamantas as a special assistant in the FDA commissioner’s office.

Layoffs at FDA, CDC affect food safety functions, avian flu response. At this writing, about 10 percent of the federal workforce has reportedly been laid off, among them thousands of employees across the Department of Health and Human Services and the Department of Agriculture. Agriculture Secretary Brooke Rollins said on February 14, 2025 that the agency is "eliminating positions that are no longer necessary." That same day, the Department of Health and Human Services announced plans to fire 5,200 probationary employees across its 13 agencies. On Saturday, February 15, notices of layoffs were sent to employees of the FDA, National Institutes of Health, Administration for Strategic Preparedness and Response, and Center for Disease Control and Prevention (CDC), among other agencies. While at this writing it is unclear precisely how many employees are affected, numerous reports indicate that the terminations affect critical offices across multiple agencies where food recalls and foodborne illness outbreaks are reported and investigated, as well as avian flu and outbreak response, including at the FDA and CDC. Further layoffs are affecting the USDA's National Animal Health Laboratory Network, which plays a major role in responding to animal disease outbreaks. These layoffs are also impacting the states, including state inspectors under contract with the FDA to inspect food facilities. Keith Poulsen, director of the Wisconsin Veterinary Diagnostic Laboratory, said that the 58 laboratories that make up the American Association of Veterinary Laboratory Diagnosticians were informed that testing and other responses to the H5N1 outbreak would be slower as a result of the layoff. On February 18, the USDA said that some of those working in avian flu response had been fired by mistake and that “we are working to swiftly to rectify the situation and rescind those letters.” News report indicate that it has proved difficult to reach many of those fired workers. Further firings are expected.

“Making America Healthy Again”: The impact on the FDA, life sciences, and healthcare sectors. President Donald Trump recently issued an Executive Order (EO) establishing the President's Make America Healthy Again (MAHA) Commission. The EO, issued on February 13, 2025, addresses a range of issues, including chronic disease and obesity in adults and children, the increased diagnosis of mental health conditions and the impacts of prescription treatments, the effects of technology use on healthy lifestyles, and the impact of food production, ingredients, and chemicals on health outcomes. The alert establishes a Commission, led by Secretary Kennedy, and charged with completing a “Make Our Children Healthy Again Assessment” within 100 days, followed by a strategy that makes recommendations based on this assessment. The EO indicates that there may be opportunities to provide input into the process through public hearings, meetings, roundtables and similar events. Our alert examines some of the key areas of impact to regulated industry.

US federal court orders restoration of datasets and websites to health agencies. On February 11, the US District Court for the District of Columbia issued a temporary restraining order requiring federal health agencies to restore datasets and websites that were taken down beginning in late January, agreeing with plaintiffs Doctors for America that taking down the information would cause “irreparable harm.” Many prominent health organizations, among them the American Cancer Society, had called on the Trump Administration to restore the data to the websites of such agencies as the Centers for Disease Control and Prevention and the FDA, and two weeks ago the advocacy organization Doctors for America sued over the removal of “a broad range of health-related data and other information used every day by health professionals to diagnose and treat patients and by researchers to advance public health.” After the TRO was issued, the datasets and web pages were apparently restored, but with a warning banner atop many of the pages. The banner on the HIV data page, for instance, states, “Per a court order, HHS is required to restore this website as of 11:59PM ET, February 11, 2025. Any information on this page promoting gender ideology is extremely inaccurate and disconnected from the immutable biological reality that there are two sexes, male and female. The Trump Administration rejects gender ideology and condemns the harms it causes to children, by promoting their chemical and surgical mutilation, and to women, by depriving them of their dignity, safety, well-being, and opportunities. This page does not reflect biological reality and therefore the Administration and this Department rejects it.” See the TRO here.

US to impose across-the-board 25-percent tariffs on steel and aluminum. President Donald Trump signed proclamations on February 10, 2025 to impose 25-percent tariffs on imports of steel and aluminum into the US from all countries without exception, rolling back exemptions for Canada, Mexico, the EU, UK, Japan, South Korea, and other allied nations. See our alert about the tariffs, which take effect on March 12, 2025. A number of sources are reporting that the tariffs could drive up costs for US manufacturers – for instance, raising the cost of canned foods and beverages.

The impending metal tariffs are also raising concerns among Canadian manufacturers and packagers. US manufacturers of cans (used for canned food products) import metal from Canada, which accounts for 70 percent of a can’s cost. Canadian producers in various industries then import these US cans back into Canada. Concerns have been raised about the possibility that the imposition of tariffs and potential counter-tariffs could lead to double taxation, further driving up consumer prices.

The Canadian Food and Nutrition Directorate launches initiative to bring awareness to new front-of-package nutrition labelling symbol. A new labelling symbol in Canada identifies packaged foods that meet or exceed set levels of saturated fat, sugars, and sodium. The food industry has been given until January 1, 2026 to adjust to the new labelling requirement, although companies may begin using the new labels sooner. The Food and Nutrition Directorate has recently launched a new initiative to bring awareness to this new symbol: Share information about front-of-package nutrition labeling. Health Canada expects the labelling system will assist consumers in making more informed decisions about the products they purchase.

Health Canada issues proposal to amend the list of maximum residue limits for veterinary drugs in foods. Health Canada’s Veterinary Drugs Directorate – whose responsibilities include ensuring the safety of foods produced in Canada from food-producing animals treated with veterinary drugs and setting standards such as Maximum Residue Limits in the tissues and food products from food-producing animals – is seeking comments on amending the list of maximum residue limits for veterinary drugs in foods. The Directorate is currently conducting a consultation with industry, the general public, food animal producers, and veterinary associations, among others. Participate by sending an email to vdd.HSD-DIH.dmv@hc-sc.gc.ca.

Market authorizations repealed under Canada’s Food and Drugs Act. Health Canada has been engaged in a review and redesign of the regulations to provide a more effective and adaptable regulatory environment. In a recent update to the Regulations, the Minister of Health has repealed 16 Marketing Authorizations issued under section 30.3(1) of the Food and Drugs Act. These Marketing Authorizations had permitted the use of certain food additives that would have otherwise been prohibited under the existing Regulations. Updates to the legislation under the Regulations Amending Certain Regulations Concerning Food Additives and Compositional Standards, Microbiological Criteria and Methods of Analysis for Food and the Regulations Amending the Food and Drug Regulations (Nutrition Symbols, Other Labelling Provisions, Vitamin D and Hydrogenated Fats or Oils) have rendered the Marketing Authorizations redundant.

Proposed federal bill would bar USDA from enforcing its Salmonella poultry rule. On January 23, US Representatives Tracey Mann, a Kansas Republican, and Steve Womack, an Arkansas Republican, introduced a bill that would prevent the USDA from using federal funds to carry out its proposed rule regarding Salmonella in poultry. They said the rule is not based in science and that its adoption would do little or nothing for consumer health. They also said that the rule disregards data from the USDA that found Salmonella outbreaks have decreased by 60 percent since 2020 and that more than 97 percent of whole chickens tested negative for Salmonella as recently as 2022. “American families have been clear about the weight that skyrocketing food prices and inflation have had on their ability to put food on their tables.” Mann said. The bill is currently under review by the House Committee on Agriculture.

New York and Arizona state bills would ban certain food dyes, require disclosure of GRAS ingredients. Two New York state legislators have introduced the Food Safety and Chemical Disclosure Act (S1239/A1556), which would ban the use of certain additives and artificial dyes from foods sold or manufactured in the state or offered in New York schools and which would also require food companies to disclose their use of any Generally Recognized as Safe (GRAS) ingredients to the public. The bill would specifically ban use of Red 3, potassium bromate, and propylparaben in foods; addressing foods available in schools, it would, with certain exemptions, also prohibit sales of foods containing the dyes Red 40, Blue 1, Blue 2, Green 3, Yellow 5, and Yellow 6. The bill is now under review by the agriculture committees of both legislative houses. In addition, on February 4, the Arizona state House’s Education Committee unanimously approved a measure that seeks to prevent Arizona public schools from selling or serving foods that contain any of 11 different additives, among them Red 40, potassium bromate, titanium dioxide, and various other additives. Under the Arizona bill, parents would still be allowed to send their kids to school with foods containing the prohibited items, but third-party vendors would not be able to sell any items that contain the additives, nor would schools be allowed to sell or serve them. On January 24, 2025, the FDA banned Red 3 under the Delaney Clause; California banned an array of food additives in 2023.

Minnesota bill would require food manufacturers to report phthalates in their products. The Minnesota legislature is considering a bill that would require food manufacturers to test packaged products for the presence of phthalates and make those results available to the public. SF 188/HF 44, introduced to the state legislature during the week of February 17, would mandate testing of packaged food products by an accredited laboratory. Companies would also be required to report results to the state Department of Agriculture and to list the results on their websites. Consumers would be directed to those results via a QR code on packages. The federal government, and a number of US states, including California, New York, Washington, Maine, and Vermont, have laws limiting phthalates in certain products. The FDA addresses phthalates in its food contact regulations, which have seen significant regulatory activity recently, and California’s Proposition 65 includes several phthalates among its listed chemicals. Legislative activity has been accompanied by an uptick in litigation over phthalate content in various products.

Arkansas legislature overwhelmingly approves partial deregulation of unpasteurized “raw” milk sales. The Arkansas state senate has overwhelmingly approved a bill to partially deregulate sales of unpasteurized “raw” milk. At present, Arkansas producers of raw unpasteurized cow, sheep, and goat milk are allowed only to sell their products at the farms where they are made. While SB 1048 would not permit retail sales of unpasteurized raw milk, it allows producers of unpasteurized sheep, goat, and whole cow milk to deliver their products directly to consumers and to sell their products at farmers markets. SB 1048 now heads to the desk of Arkansas Governor Sarah Sanders for her signature. The FDA, CDC, and organizations such as the American Academy of Pediatrics agree that raw milk is unsafe because it can contain disease-causing pathogens.

Nevada considers prohibiting sale of certain plastics. The Nevada legislature is considering SB Bill 173, which would prohibit the sale, offer for sale or distribution of products in Nevada containing recycled black plastic; plastic bottles; and products with perfluoroalkyl and polyfluoroalkyl substances (PFAS) intentionally added. The bill would effectively eliminate some single-use plastic products, such as food storage containers, from Nevada commerce. It has been in the news in the Southwest in recent days due to the lobbying efforts of a medical student who is seeking to have the ban extended to restaurants’ use of plastic cutting boards.

FDA announces uniform compliance date for food labeling rules. On February 3, the FDA announced that January 1, 2028, will be the uniform compliance date for all of its final food labeling regulations published between January 1, 2025, and December 31, 2026. The FDA said this announcement does not change the existing requirements for compliance dates contained in final rules published before January 1, 2025. Uniform compliance dates for new food labeling requirements, the agency said, are intended to minimize the economic impact on the food industry of having to respond separately to each labeling change, allowing industry sufficient lead time to plan for the use of existing label inventories and the development of new labeling materials. The FDA said it encourages industry to comply with new labeling regulations as quickly as feasible, but no later than January 1, 2028.

Avian flu update.

• At this writing, since mid-January 146 US commercials flocks have been confirmed to have H5N1, leading to the culling of more than 20.5 million birds, reports the USDA’s Animal and Plant Health Inspection Service.
  
  
• Signaling a policy shift, the USDA has issued a conditional approval license to pharmaceutical manufacturer Zoetis for its avian flu vaccine for use in chickens. While avian flu vaccines already exist, none of them completely match the strains responsible for the current outbreak. The agency said that while it is not currently planning immediate vaccination of flocks, it is moving ahead to expand vaccine manufacturing capacity.
  
  
• On February 19, the Public Health Agency of Canada (PHAC) announced that it has secured an initial supply of 500,000 doses of GSK’s human vaccine against avian influenza. This vaccine will be used as part of Canada’s contingency planning to protect people who may be at increased risk of being exposed to the virus through animals infected with avian influenza. The PHAC will provide vaccines to provinces and territories based on an equitable and risk-based approach, with 60 percent of available doses going to provinces and territories and 40 percent kept in a federal stockpile for national preparedness. The PHAC has also published preliminary guidance on human vaccination against avian influenza in a non-pandemic context.
  
  
• During the week of February 10, health officials in Wyoming and Ohio reported the third and fourth cases of people being hospitalized with H5N1. The Ohio patient is a farmworker who had been exposed to infected cattle; the Wyoming patient appears to have been exposed when her home flock of chickens fell ill and died. A Canadian teenager hospitalized in late 2024 with the newer D1.1 strain of H5N1 has recovered. A Louisiana patient hospitalized with the same strain has died. In addition, one more human case has been confirmed, in a dairy worker in Nevada.
  
  
• Multiple confirmed cases of H5N1 in house cats have been confirmed in Oregon and California, with raw pet food identified as the transmission source. On February 6, the New York Times reported, a data table in a Morbidity and Mortality Weekly Report indicated that “cats that became infected with bird flu might have spread the virus to humans in the same household and vice versa.” The data, the Times said, briefly appeared online “but then abruptly vanished.” It appears to be part of a larger as yet unpublished study. Scientists and physicians are calling on the Administration to release that study as well as another unpublished report, a comprehensive analysis of avian flu virus detected in US wastewater.
  
  
• On February 13, Nevada Governor Joe Lombardo signed into law a bill that aims to help Nevada shoppers with rising egg costs. The measure, AB 171, moved through the legislature in only two weeks. Currently, Nevada law requires all eggs sold in the state to be cage free. AB 171 authorizes the state Agriculture Director to bypass that law for a 120-day period.
  
  
• On February 13, the CDC reported recent H5N1 infections in three veterinarians who did not know they had been exposed to the virus. All three work with cattle. Two of the vets reported no exposures to infected animals; the third practices in South Carolina and Georgia, which have never reported any cases of the virus in cattle. All three infections were detected in the course of a CDC study of 150 veterinarians from 46 states. The findings suggest that asymptomatic, undetected avian flu is being transmitted to people and animals that have not yet been identified, the researchers said. The research was published in the CDC’s Morbidity and Mortality Weekly Report. It had originally been slated for publication in January; its release was delayed when the Trump Administration instructed federal health agencies to pause all external communications.

DLA Piper webinar: Navigating EPR compliance. As state regulators across the country implement new extended producer responsibility (EPR) laws, the legal landscape for consumer goods, food, and retail industries is rapidly evolving. DLA Piper’s ESG, Environmental, and Consumer Goods, Food, and Retail groups will host a discussion on March 4, 2025 covering compliance strategies, risk mitigation, real-world case studies, and more. Register for our webinar here.