Food and Beverage News and Trends - October 25, 2024

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

USDA extends comment period on new salmonella rule for poultry. On October 11, the USDA’s Food Safety and Inspection Service (FSIS) announced it is extending the comment period for its new rule on Salmonella in raw poultry products until January 17, 2025. FSIS had already extended the original due date for comments from October 7, 2024 to November 7, 2024. After the initial extension, an array of stakeholders, among them consumer groups, industry associations, and academics, submitted requests for a further extension to give them time to consider the proposal and supporting documentation. The proposal would establish final product standards to prevent raw chicken carcasses, chicken parts, ground chicken, and ground turkey products that contain any type of salmonella above a very low level and any detectable level of at least one of the Salmonella serotypes of public health significance from entering commerce.

Canada: Class Exemption Order for certain special foods proposed. The Minister of Health has issued a Notice of Intent to make a ministerial class exemption order. The Order would apply to the exceptional import of certain foods that are classified as “foods for a special dietary purpose” and would aim to mitigate a shortage or risk of shortage of infant formulas, human milk fortifiers, and dietary products used for the treatment of inborn errors of metabolism. This would ensure that Canadians can access these foods to meet their nutritional needs, even amid events such as manufacturing disruptions, surges in demand, or other unforeseen events affecting the global supply chain. Health Canada has noted its susceptibility to shortages of these specific food products due to its small market size and reliance on a limited number of suppliers. The order would replace the interim policy on the importation of these foods which has been in place since March 2022 and is set to expire December 31, 2025. It is intended to be a temporary measure until shortage-related regulations related to these foods are made a part of Health Canada’s Regulatory modernization of foods for special dietary use and infant foods: Divisions 24 and 25 of the Food and Drug Regulations. The updates are expected to harmonize Canadian regulations with international jurisdictions and reduce restrictions on importing these foods from other countries with similar safety standards.

US: Recall of some ready-to-eat meat products. On October 17, the USDA’s Food Safety and Inspection Service (FSIS) announced that hundreds of ready-to-eat meat and poultry products sold in the nation’s top grocery chains have been recalled because of concerns over Listeria contamination. The products were manufactured by BrucePac, an Oklahoma-based producer of precooked meat. As of this writing, about 12 million pounds of meat and poultry have been recalled, and the list of affected products has reached 348 pages. The recall came after routine FSIS testing found that some BrucePac products tested positive for Listeria. FSIS noted that it is working to identify all recalled products that were distributed to consumers, including those purchased by schools. About 200 schools across the country have received the recalled products, USDA said.

Groups express concern over major bakeries’ sesame labeling. Two advocacy groups – the Center for Science in the Public Interest (CSPI) and FARE (Food Allergy Research & Education) – have expressed concerns about Bimbo Bakeries’ response to an FDA warning letter about sesame labeling. In June, the agency warned the company about its use of “false and misleading” package labels on a number of bread products. Most notably, the bakery has been listing allergens, such as sesame, on many of its product labels that were not present in the product. The FDA letter said this mislabeling is “misbranding” and is a “serious” violation of section 403(a)(1) of the Federal Food, Drug, and Cosmetic Act. Since the products do not include these potential allergens, the agency suggested that the brand add an additional voluntary allergen statement instead, eg, “may contain sesame.” This month, CSPI and FARE noted that Bimbo Bakeries has not made any changes to its labels. Rather, in its response letter to the FDA, it instead explained that, given the scale of its operations, it was not feasible to control sesame cross-contact in some of its facilities; the company found it easier to add sesame to products that never had it before and to generally add a “contains sesame” label to others that are made without it. In September 2023, FDA released a draft guidance intended to help food facilities comply with current good manufacturing practices and preventive controls for human food, noting it was acting because some manufacturers, in response to the FDA’s decision to declare sesame a major allergen, had started to label their products as containing sesame rather than taking measures to prevent cross-contamination.

New Hampshire food waste reduction law. In an effort to cut one of the major sources of the potent greenhouse gas methane, starting in February 2025 New Hampshire will implement a law that prohibits large food waste producers from sending excess food to landfills or incineration. The law applies to “any person” that generates one ton or more of food waste weekly. It sets out exceptions – for instance, those who are more than 20 miles from an alternative facility are exempt. The law also sets out an order of preference for handing excess food waste: first, reducing the volume of food waste being generated; second, avoiding creating waste by eating the food; third, avoiding creating waste by feeding food to animals; fourth, breaking down the waste through processes like composting; and finally “energy recovery not involving combustion. The US EPA recently awarded the New Hampshire Department of Environmental Services a $572,000 grant to help implement the law, beginning with a solid waste characterization study and a food waste generator study to help DES understand which entities will be most affected. A number of other US jurisdictions have already implemented legislation addressing food waste, with mixed success. A 2021 EPA report found that one-third of food produced in the US isn’t eaten, instead going to landfills where it generates vast amounts of the potent greenhouse gas methane.

BC lake-based aquaculture site fined $350,000 for operating without a license. An investigation by Fisheries and Oceans Canada (DFO) of an aquaculture site in Powell River, British Columbia that cultivates rainbow trout has resulted in a $350,000 fine for engaging in aquaculture activities not under the authority of an aquaculture license. The investigation was initiated following public complaints received through the Observe, Record, Report Hotline of mass escapes of domestic farm rainbow trout into Lois Lake, as well as the release of large quantities of Styrofoam and equipment along sections of the lakeshore. Local fishers believed that the significant quantity of domestic rainbow trout that escaped the aquaculture site put native populations of cutthroat trout at risk. DFO’s investigation concluded that the aquaculture site was in violation of the Pacific Aquaculture Regulations. In addition to being fined, the operators have been ordered to remove all structures erected outside of their tenure boundaries by August 31, 2025.

Appeals court rejects bid to toughen EPA regulation of animal feed lots. Rejecting the contention that the EPA had neglected its duties, on October 2 the US Court of Appeals for the Ninth Circuit denied a petition to overhaul and tighten the EPA’s current concentrated animal feeding operation (CAFO) regulations. The lawsuit, brought by Food and Water Watch on behalf of a dozen environmental, community, and state advocacy groups, called CAFOs “sewerless cities” and alleged that they illegally pollute waterways because of “EPA’s ineffective regulatory scheme.” The petitioners were seeking to end CAFOs’ agricultural stormwater discharge exemption and require such operations to either obtain Clean Water Act permits or prove they are not discharging into Waters of the United States. The panel of judges found “that EPA did not act arbitrarily, capriciously, or contrary to law.” The agency acknowledged “the serious problem of CAFO-based waste discharges into U.S. waterways,” the panel wrote, and its promise to continue studying the issue and convene “a stakeholders’ subcommittee” was not an unreasonable response.

House panel subpoenas HHS and USDA over development of alcohol guidelines. House Committee on Oversight and Accountability Chair James Comer (R-KY) has issued subpoenas to Health and Human Services Secretary Xavier Becerra and Agriculture Secretary Thomas Vilsack for documents related to the committee’s investigation into the development of alcohol consumption guidelines. Representative Comer stated that the documents it seeks would “enable oversight of USDA’s duty to develop the Dietary Guidelines for Americans and participation in the ICCPUD Subcommittee for Alcohol Intake and Health.” He noted that the committee originally subpoenaed documentation in April this year, but that both HHS and the USDA have failed to fully comply. Comer said he is concerned that HHS appears to be assuming improper authority over the development of the alcohol consumption guidelines.

Protest in Battle Creek over cereal maker’s use of synthetic dyes and BHT. On October 15, hundreds of protesters gathered at WK Kellogg Co. headquarters in Battle Creek, Michigan, calling on the company to remove dyes and preservatives from its cereals. The marchers particularly expressed concerns about Red Dye 40, Yellow 5 and 6, and the antioxidant butylated hydroxytoluene (BHT). In 2015, WK Kellogg announced it would remove all artificial colors and flavors from its cereals by 2018. That, march organizer presented a petition with over 400,000 signatures to Gary Pilnick, chief executive officer of WK Kellogg, calling on the company to implement the change and. In response to the event, Kellogg stated, “The quality and safety of our foods is our top priority. Our products – and the ingredients we use to make them – are compliant with all applicable relevant laws and regulations, and we remain committed to transparently labeling our ingredients so consumers can easily make choices about the food they purchase.”

Chile sets a good example for food warning labels, says op-ed. An October 16 op-ed in Health Policy Watch magazine makes the case that Chile’s experience in using mandatory warning labels to target products with high salt, sugar, saturated fat, and calories can serve as an excellent example for other nations, including the US. Citing a three-year study of Chilean food habits by the University of Chile and the University of North Carolina, Chapel Hill, published in PLOS Medicine, the op-ed observes that Chile’s measures have reduced consumers’ appetite for unhealthy products: Chileans are purchasing significantly less sugar, salt, saturated fat, and calories. The nation’s Law of Food Labeling and Advertising, passed in 2016, includes mandatory black octagonal front-of-package nutrient warning labels alerting consumers to products high in sugar, salt, saturated fat, and calories.