Food and Beverage News and Trends – February 17, 2023

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

USDA proposes tougher nutrition standards for school meals. The USDA is proposing that school meals be made healthier by tightening standards to reduce added sugars, fat and sodium, and to increase students’ intake of whole grains. “Many children aren’t getting the nutrition they need,” said Agriculture Secretary Tom Vilsack at a meeting of food stakeholders on February 3. Vilsack specifically pointed to concerns about childhood obesity, which he said has tripled since the 1970s and which disproportionately affects Hispanic and Black children. According to Vilsack’s proposals, chocolate milk will remain OK, but for the first time ever, at least some added sugars will be out – and sodium levels will be reduced gradually. The federally assisted school meal program provides nutritionally balanced meals at school at low cost or for free. More than 15.3 million public school children get breakfast at school every day, and 29.6 million get a school lunch. The proposed updates are open for public comment until April 10.

FDA will permit certain health claims regarding cocoa flavanols. The FDA announced February 3 that it does not intend to object to the use of certain qualified health claims that say consuming cocoa flavanols in high flavanol cocoa powder may possibly reduce the risk of cardiovascular disease. The FDA said these claims would be permitted so long as they are appropriately worded to avoid misleading consumers and so long as other factors for the use of the claim are met. The FDA was responding to a health claim petition submitted on behalf of Barry Callebaut AG Switzerland. The agency said that statements such as this may be used: “Cocoa flavanols in high flavanol cocoa powder may reduce the risk of cardiovascular disease, although the FDA has concluded that there is very limited scientific evidence for this claim.” The 2018 petition by the chocolate maker had requested permission to use a wider range of claims, but the FDA did not find enough evidence to support them.

Record fine. The Kerry Group, which manufactures ingredients and products for major brands, agreed February 3 to pay a fine of $19.2 million in what is said to be the largest financial penalty to date associated with a criminal conviction in a food safety case. Kellogg’s Honey Smacks, made at Kerry’s former Gridley, Illinois, plant in 2018, were the source of a Salmonella outbreak that sickened at least 135 people in 36 states, according to the Centers for Disease Control and Prevention. In 2018, Kerry permanently closed the Gridley plant.

Cases about nondisclosure of PFAS in packaging are dismissed. On February 8, the District Court for the Northern District of Illinois dismissed two putative class actions that had accused Conagra of failing to properly identify synthetic chemicals – specifically PFAS – in its microwave popcorn packaging. The court ruled that federal regulations only require companies to list the ingredients that they put into their food, not ingredients in the packaging, even if those ingredients might migrate into the food. The complaints concerned the packaging of microwave popcorn with the Orville Redenbacher name and of microwave popcorn branded as Angie’s BoomChickaPop.

CSPI says it’s wrong and illegal to add sesame to products that never had it. On January 30, the nonprofit Center for Science in the Public Interest wrote to the FDA, asking it to crack down on manufacturers that intentionally add sesame to their food products and then declare its presence. The reason for this intentional addition, some observers have noted, is so that manufacturers can avoid the cost of cleaning up potentially contaminating allergens in manufacturing equipment. CSPI said that this practice, which began after Congress passed legislation listing sesame as an allergen that must be declared in food, is a violation of federal law. Companies should avoid cross-contamination, rather than add sesame to products that never contained it before, the group said. “This perverse practice sets a dangerous example,” said CSPI Director of Regulatory Affairs Sarah Sorscher. “If companies can do this with sesame, there is nothing to stop them from adding other peanuts, milk, or other major allergens instead of cleaning the lines for allergens in between products.”

Prepared food recall. The FDA has announced that more than 400 food items sold across the eastern United States are being recalled due to possible Listeria contamination. Prepared foods such as sandwiches, wraps, yogurts and salads sold in vending machines, stores, and on Amtrak trains in states in the eastern US were recalled by their manufacturer, Fresh Ideation Food Group, on February 3. All the recalled products have a Fresh Creative Cuisine label or identifier on the package, with a sell-through or fresh-through date range of January 31, 2023, through February 6, 2023. No illnesses have been linked to the products to date.