Food and Beverage News and Trends - May 31, 2024

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


New sugar-reduction technology gets FDA approval. On May 20, Blue Tree, an Israel-based food technology company, received FDA approval for its proprietary sugar reduction process – a technology that selectively removes sugar content from natural fruit juice and milk without sacrificing taste. The process does not use any artificial sweeteners or additives. In licensing out the system, the company says that it will provide “very specific use instructions that will facilitate the production of a range of healthy, sugar-reduced fruit juices and dairy beverages.” Blue Tree states that current data shows the consumption of sugary beverages is steadily declining, while the consumption of low-sugar beverages is increasing.

Novel Technologies Streams winners under Canada’s food reduction challenge are announced. As part of Canadian Innovation Week 2024, the Honourable Lawrence MacAulay, Minister of Agriculture and Agri-Food, announced the winners of the Novel Technologies Streams for the Food Waste Reduction Challenge. The challenge, initiated in 2020 in collaboration with Impact Canada, aims to combat food waste through technological innovations. Winning the challenge were Clean Works Inc. and Genecis Bioindustries Inc. Clean Works, based in St. Catharines, Ontario, developed a solution using hydrogen peroxide, ozone, and UV to extend the shelf life of produce by up to 20 percent. Genecis Bioindustries, located in Toronto, created a bacteria that converts food waste into compostable bioplastics, with the capability of diverting over 2.1 tons of waste from landfills annually. Both companies will receive up to $1 million to further develop and deploy their solutions in Canada. These initiatives are said to reduce food waste, enhance food availability, save money, and decrease greenhouse gas emissions, aligning with the Canadian government's commitment to supporting innovation in agriculture and food processing.

FDA determines that tara flour is not GRAS. On May 15, the FDA posted on its website a new determination that tara flour in human food does not meet the Generally Recognized As Safe (GRAS) standard and is therefore an unapproved food additive. Tara flour is a plant-based protein derived from the seeds of Tara spinosa, a shrub native to Peru. A 2022 outbreak associated with a product made with tara flour prompted the agency to evaluate the regulatory status of the ingredient. While the agency could not determine if tara flour caused the outbreak, FDA’s evaluation concluded there is not enough data on the use of tara flour in food and not enough history of safe use to consider it GRAS. Therefore, tara flour is an unapproved food additive and its inclusion will render a product adulterated. The FDA added that, to its knowledge, no foods containing tara flour are currently being sold in the US.

Canada: Keep it Clean drops two ag chemicals from high-risk list. Keep it Clean is a joint initiative of the Canola Council of Canada, Cereals Canada, Pulse Canada, and the Prairie Oat Growers Association which provides guidance to Canadian growers on the standards set by importing countries, including tolerance for pesticide residues and traces of disease. Its 2024 product advisory has dropped two names that were previously listed as high-risk crop production products. Sethoxydim, a herbicide, was removed mainly because its production has ceased. Chlorothalonil, a fungicide, was taken off the list after residue testing at farms showed minimal risk to trade concerns, despite earlier cautionary measures due to an EU ban. Notably, a proposal to ban all uses of chlorothalonil is being reviewed by Canada’s Pest Management Regulatory Agency. A decision is likely to be announced this year. Keep it Clean’s 2024 Product Advisory contained no new products on its list for cereals this year, and it hasn’t made any changes to advisories for other crops since last year’s release.

CFIA issues notice to exporters for compliance with ISPM 15 in exported WPM. The Canadian Food Inspection Agency has issued a notice to exporters regarding the strict treatment requirements for wood packaging material (WPM) accompanying goods exported from Canada. The CFIA has advised that it is imperative to ensure compliance with the International Standards for Phytosanitary Measures No. 15 (ISPM 15) when shipping WPM abroad, because more than 80 countries, including key trading partners, enforce adherence to these standards. Failure to comply can lead to significant consequences such as refusal of shipment receipt, return of goods, or financial penalties. The CFIA administers the Heat-Treated Wood Products Certification Program, which aligns with ISPM 15 requirements and provides exporters with guidance.

Avian flu update.

The H5N1 strain of bird flu, also called HPAI (highly pathogenic avian influenza), continues to rampage through both wild and domestic bird populations, in the Americas and around the world. Last week, nearly 1.4 million chickens were culled at an egg operation in Minnesota, and on May 28, crews began the process of putting down 4.2 million chickens after the disease appeared at a Sioux County, Iowa farm. The USDA reports that more than 92 million domestic birds have been killed in the US since the outbreak began in 2022.

As of this writing, H5N1 has been found in cattle on 52 dairy farms in 9 US states. Two more human cases of H5N1 have been confirmed. Both are dairy farm workers in Michigan. One of the patients is the first human case to report symptoms of respiratory illness; that patient has responded to an antiviral treatment, the CDC said on May 30.

CFIA finds no fragments of H5N1 in retail milk samples. CFIA’s first round of testing of Canadian retail milk samples via polymerase chain reaction (PCR) testing has found no fragments of the H5N1 virus in any samples. The testing, part of Canada's overall monitoring of dairy cows for H5N1, was conducted in collaboration with the Public Health Agency of Canada and Health Canada. The CFIA stated, "Commercially sold milk and milk products remain safe to consume."

Meanwhile, Canadian scientists at research institutions across the country have spearheaded the creation of the Pan-Canadian Milk Network, an ongoing nationwide initiative to monitor Canadian retail milk for H5N1. The Network was created in April as the result of conversations among three scientists whose concern about the unprecedented spread of H5N1 in US dairy cattle led them to reach out to other researchers across Canada. At that time, tests of the US milk supply had just begun, and the CFIA was not yet testing the Canadian milk supply. The Network’s first paper, made available as a preprint on May 28, reported, “No virus particles have been detected in the retail milk samples the Network has tested to date.” The Network will continue testing the Canadian retail milk supply and report on its findings as new data becomes available. Describing its research as “cost-effective, standardized, scalable and easily accessible,” the paper states, “Our network and testing will act as an early warning system which will enable rapid responses necessary to contain an outbreak should any samples test positive.” 

The US, Canada, and a number of European countries are considering the possibility of vaccinating farm workers and others who come in close contact with cattle. Dawn O'Connell, Assistant Secretary for Preparedness and Response in the Department of Health and Human Services, said the government is "looking closely" at the possibility of such vaccinations. On May 27, Reuters reported that the US is taking steps to manufacture or acquire vaccines to protect at-risk poultry and dairy workers from H5N1. Last week, US officials said they were working to acquire enough bulk “prepandemic” vaccine to provide 4.8 million doses. Canadian officials said that they too are in talks about acquiring and manufacturing a prepandemic bird flu vaccine.

Posting on X (formerly Twitter), the United Farm Workers called for “equitable access to resources” for farm workers to prevent further spread of avian influenza. “Resources must go to both the affected industry and the front line workers at the very highest risk,” the UFW said in a series of tweets on May 24. Such resources, the UFW said, should include widespread access to testing, practical PPE, and paid sick leave. At present, the UFW stated, "Infections in dairy workers are likely going uncounted."

As of this writing, 21 US states are restricting the import of cattle from states with a confirmed outbreak.

CSPI will push FDA to eliminate use of methylene chloride in food. On May 23, the nonprofit Center for Science in the Public Interest announced it will begin a major effort to convince the FDA to protect workers and consumers from exposure to dangerous chemicals such as methylene chloride. On May 8, the EPA finalized a rule that will ban methylene chloride from consumer use and from most commercial and industrial applications under the agency’s jurisdiction. However, the EPA does not have jurisdiction over the use of the substance in food; only the FDA does. CSPI said the cancer risk from the use of solvents such as ethylene chloride in food is small, but that these products are completely unnecessary in food and food processing. Although they can be used in decaffeinating coffee, for example, the same result can also be accomplished with water.

British Columbia: Indigenous program strengthens long-term rural food supply. Since July 2023, British Columbia's Indigenous Food Security and Sovereignty Program has launched more than 60 initiatives with the goal of enhancing local food systems, especially in rural and remote regions. This project promotes a number of initiatives, among them the revival of traditional food production and communal food security. In addition to improving infrastructure, initiatives like Tea Creek and The Farmhouse Butchery support Indigenous food sovereignty and vocational training. The initiative, which is managed by the New Relationship Trust, gives Indigenous communities the tools they need to improve the infrastructure for food processing and harvesting. In keeping with the BC government's commitment to Indigenous reconciliation under the BC Declaration on the Rights of Indigenous Peoples Act, submissions for the next funding cycle are now open.

Iowa enacts disclosure law for lab-grown and plant-based meat products. On May 15, Iowa Governor Kim Reynolds signed into law a measure prohibiting the misbranding of certain food products, including meat alternatives and lab-grown meat, in the state. Starting on July 1, plant-based and lab-grown meat-substitute products sold in Iowa stores will be required to carry a label using words such as “lab-grown,” “fake,” “meatless,” “imitation” or “vegan.” The governor said, “This legislation prohibits companies from exploiting the trust consumers have with our livestock producers and misleading consumers into buying products they don’t want. This is about transparency. It’s about the common-sense idea that a product labeled chicken, beef or pork should actually come from an animal.” Laws banning the sale of lab-grown meat were recently enacted in Florida and Alabama. The Iowa law also prohibits school districts, community colleges, and public universities in the state from purchasing lab-grown meat and any foods misbranded as meat or egg products.

California Assembly votes to ban seven dyes from public school foods. On May 21, the California Assembly voted to advance the School Food Safety Act, a bill that bans seven dyes, including titanium dioxide, from foods served in California's public schools. The bill will now go to the California Senate. Last year, California enacted the California Food Safety Act, which banned potassium bromate, propylparaben, brominated vegetable oil, and Red Dye No. 3 from food manufactured, delivered, or sold in the state. The current public-school law applies to Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2, and Green Dye No. 3, in addition to titanium dioxide.

BC’s food industry gains access to funding for traceability upgrades. Through the Traceability Adoption Program, British Columbia's food processing, fishery, and agriculture industries can obtain funding to improve product tracing, satisfy consumer needs, and guarantee public health safety. This funding makes it feasible to enhance tracking systems through the purchase and application of hardware, software, and expertise. Examples include installing RFID tag readers to expedite livestock operations and lessen administrative responsibilities and switching to computer-generated labeling for efficiency. The funding for improving product tracing in British Columbia is part of the Sustainable Canadian Agricultural Partnership, a $3.5-billion investment over five years. This includes $1 billion in federal programs and $2.5 billion in cost-shared programs.