Food and Beverage News and Trends - January 19, 2024

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

FDA issues warning on yellow oleander in mislabeled supplements. On January 4, the FDA issued a warning about possible inadvertent consumption of the poisonous plant yellow oleander in over-the-counter weight loss supplements. It said that its analysis has determined that certain dietary supplements labeled as containing tejocote root (Crataegus mexicana, also called Mexican hawthorn) actually contain up to 100 percent yellow oleander (Cascabela thevetia), a poisonous plant native to Mexico and Central America. Tejocote root is widely promoted online as a natural weight loss supplement and diuretic; it, along with tejocote fruit, is widely consumed in Mexico. Yellow oleander is highly toxic; ingesting it can lead to neurologic, gastrointestinal, and cardiovascular health effects that can be severe or fatal. This is not the first time the FDA and CDC have discovered yellow oleander in supplements. In 2022, for instance, the agency issued an advisory about botanical weight loss products labeled as Nuez de la India (Aleurites moluccanus, popularly called candlenuts) which were actually pure yellow oleander.

Government panel investigating Calgary E. coli outbreak. On September 4, 2023, Alberta Health Services declared an E. coli outbreaking Calgary that remains the largest known E. coli outbreak in Canada occurring among children under age five. It lasted eight weeks and led to 448 infections, 23 diagnoses of hemolytic uremic syndrome, and eight cases requiring dialysis. The outbreak was traced back to a catering company. A government panel is investigating the incident to provide recommendations on ways to make commercially prepared food safer. These recommendations will pertain to timely outbreak notifications and to the regulations which should be in place for those serving children.

FDA issues first CORE annual report. On January 8, the FDA’s Coordinated Outbreak Response & Evaluation (CORE) Network released its first annual report. FDA established the CORE Network in 2011 “to find, stop, and aid in the prevention of foodborne illness outbreaks” in FDA-regulated products via disease surveillance, outbreak response, post-response activities, and collaboration with CDC and state and local public health agencies. The report, covering the 2022 calendar year, sums up adverse events and outbreaks linked to FDA-regulated foods as well as the subsequent public health actions. According to the report, in 2022 CORE evaluated 65 incidents, responded to 28, and issued advisories for 11 – a slight overall increased from 2021. The investigations concerned E. coli, Cronobacter, hepatitis A virus, Listeria monocytogenes, and Salmonella linked to an array of products, and led to numerous public health actions, among them recalls, public health advisories, warning letters, FDA prevention strategies, a country-wide import alert, and a consent decree.

Government of Canada commits resources to developing a test for domoic acid. The Minister of Health has announced $150,000 investments into two Canadian businesses seeking to establish the feasibility of an environmental domoic acid test. Domoic acid is a naturally occurring biotoxin in our marine waters that can accumulate in shellfish. Consumption of shellfish containing domoic acid can lead to severe food poisoning, life-threatening neurological effects, and cognitive disorders. Cytodiagnostics Inc., located in Ontario, and Sensoreal Inc., located in Quebec, have each received the funds as part of an Innovative Solutions Canada challenge sponsored by the Canadian Food Inspection Agency.

A kimchi recall. On December 26, World Variety Produce issued a recall for its Melissa’s Hot Kimchi over concerns that the product failed to list fish as an ingredient, creating an allergy risk. The recall, according to an announcement published by the FDA, includes certain 14-ounce containers of Melissa’s Kimchi Hot sold at Sun International Stores in Florida, Brookshire Brothers stores in Texas, and OK Produce-Grocery Outlet stores in California from December 15 through December 21. World Variety Produce has stopped producing and distributing the product while it and the FDA continue investigating the issue. To date, no reports of illnesses have emerged in connection with the recall.

CSPI says FDA “flubbed” its guidance to restaurants on calorie disclosure. On December 15, the nonprofit Center for Science in the Public Interest said in an official statement that the FDA has “flubbed” its guidance to the restaurant industry on the issue of disclosing calorie contents of foods sold on third-party delivery platforms. “We’re disappointed that the draft guidance” the agency recently issued to the chain restaurant industry “suggests that calorie labeling for menus from covered restaurants on these platforms would be voluntary, not mandatory,” the group wrote. “The guidance indicates that chain restaurants are subject to menu labeling requirements when offering online ordering directly through their websites, but not when offering online ordering through third-party platforms.” The FDA did not provide any immediate response to the group.

Appeals court upholds Iowa’s ag-gag laws. On January 8, the US Court of Appeals for the Eighth Circuit upheld, against a constitutional challenge, two Iowa state statutes that aimed to shield livestock facilities from investigations by animal rights groups. The statutes prohibit the use of deception for the purpose of gaining access to or obtaining employment with an agriculture production facility “with the intent to cause physical or economic harm or other injury.” According to the law, that includes committing unauthorized actions like videotaping inside a facility once a person is employed there. The statues were struck down in March 2022 on First Amendment grounds. The three-judge appeals panel, however, preserved one issue for further trial court proceedings. One of the Iowa statutes is designed to prevent trespassing with the intent of filming animal abuse. The other statute forbids making false statements or misrepresentations to obtain employment at a livestock facility with the intent of exposing alleged animal abuse. The court said that the plaintiffs’ argument that the statute is unconstitutional on its face “fails because the act has a plainly legitimate sweep, and it is narrowly tailored to achieve the state’s significant government interests.” The laws were challenged by animal rights groups and others, and the latest appeals court ruling marks a major win for the state of Iowa in its long-running court fight to uphold these statutes and similar ones.

Arizona lawmakers take steps against cell-cultured meat. On January 11, an Arizona state legislator introduced a bill that would prohibit the labeling of any products as “meat” that are not derived from livestock or poultry but rather were produced in a laboratory from cultured animal cells. This bill, if passed, would mark the latest instance of pushback from lawmakers against the budding cell-cultured meat industry, as the traditional meat sector and some consumers raise concerns over its safety. The proposed Arizona bill would also apply to any “synthetic product derived from a plant, insect or other source,” said its chief sponsor, who also said that the bill is more about transparency and less about blocking the offering and sale of such products. Another Arizona bill introduced around the same time proposes a more stringent approach, seeking to outright prohibit the sale and production of cell-cultured animal products.

Contaminated applesauce pouches also had high levels of chromium. On January 5, the FDA, already investigating extraordinarily high levels of lead in some types of imported applesauce pouches, announced that it has also found very high levels of chromium in the same products. The chromium was found in two samples of cinnamon from the Austrofoods facility in Ecuador where the recalled products – WanaBana apple cinnamon fruit puree pouches, Schnucks cinnamon-flavored applesauce pouches and variety packs, and Weis cinnamon applesauce pouches – were produced. Chromium is an essential nutrient but in one form, chromium-6, can pose serious health risks, such as chronic lung disease and cancer. The FDA said it has not been able to determine the specific form of chromium detected in the cinnamon applesauce pouches or whether it poses a health risk. Health authorities remain concerned that the recalled pouches, which have a long shelf life, may still be in consumers' homes. The recalled WanaBanana pouches could still be found on some dollar store shelves as late as mid-December. Federal officials have urged state health departments to seek out cases of lead poisoning, which could be missed if children who ate lead-tainted applesauce don't get blood tests from their doctor for the toxic metal. AustroFoods said in December that it will reimburse customers up to $150 for lead tests. Also on January 5, the FDA said that the median age of those sickened is 1 and that at least one adult has reported high blood lead levels after eating the lead-tainted pouches. The investigation is continuing.

An instance where global supply chains have failed? On January 12, the online food-policy newsletter Food Fix wrote that the current scandal involving lead-contaminated applesauce pouches reflects “the downside of global supply chains.” The author, reporter Helena Bottemiller Evich, wrote, “We still don’t – and we may never – know exactly what happened: Who contaminated the cinnamon, and was it for economic gain? Where in the supply chain did things go wrong? One big reason: FDA doesn’t have jurisdiction to climb further up the supply chain. In this case, the agency did eventually inspect the Ecuador plant that made the pouches, but the cinnamon supplier (also in Ecuador) isn’t exporting food to the U.S. Because of this, FDA says it doesn’t have the authority to take ‘direct action’ with the supplier. This makes it harder to figure out where and how the contamination occurred. . .. This situation has me thinking about the downsides of globalization and long supply chains. There’s no question that liberalization of trade has brought down the cost of all sorts of things, but this is a real reminder of what can go very, very wrong.”

Maryland county enacts law to increase healthy choices for kids’ restaurant meals. On January 9, Charles County, Maryland, became the third county in the US to pass legislation intended to improve restaurant kids’ meals. Like legislation passed in Maryland’s Prince George’s County in 2020 and Montgomery County in 2022, the new law, according to its supporters, will ensure that healthier beverages are the default for restaurant children’s meals and that at least one kids’ meal on the menu will meet expert nutrition standards. Parents and caregivers can still request a different beverage or side for their children, but they will no longer have the least healthy items served to their children as the default. “Maryland continues to lead the way when it comes to ensuring that families have healthier options for their children at restaurants,” said Dyotha Sweat, president of the Charles County NAACP. Restaurants in Charles County have one year to implement the default beverage component and 18 months to implement the nutrition standards for one kids’ meal. Failure to comply will at first result in a warning but could later lead to a $500 fine.

New soda taxes may be achieving their desired results. In recent years, nine US jurisdictions have set up new taxes on sugar-sweetened beverages in the interest of public health. These levies, often known as “soda taxes,” may be working to limit demand for these beverages, according to a new study published January 5 in JAMA Health Forum. The large-scale analysis of sugary drink excise taxes implemented across five big US cities found that the shelf price of sweetened beverages – which include sodas, juices, sports drinks, and any other beverages with added sugar – increased by nearly one-third on average in the two years following the introduction of soda taxes. This price hike was followed by a similar drop in sales – and the researchers found no evidence that consumers were travelling to other jurisdictions to stock up on cheaper drinks. The lead author of the study, economist Scott Kaplan of the US Naval Academy, noted, “For every 1% increase in price, we found a 1% decrease in purchases of these products. The decrease in consumer purchases occurred almost immediately after the taxes were put in place and stayed that way over the next three years of the study.” The study didn’t look at the health impact of such lower sales, but a 2019 Tufts University study concluded that cutting sales of sugary drinks by 15-20 percent nationwide would reduce healthcare costs over the average American life span by $270 per person, or $45 billion in total.

Study finds presence of microplastics in various protein foods. Research conducted by the Ocean Conservancy and the University of Toronto has detected the presence of microplastics in 88 percent of tested protein food samples. The samples tested consisted of 16 ocean- and land-sourced proteins, among them plant-based proteins. Researchers found significantly greater concentrations of microplastics in foods that were highly processed compared to their minimally processed or fresh caught counterparts.

Nanoplastics in bottled water. A study from Columbia University published in the Proceedings of the National Academy of Sciences on January 8 states that the average bottle of water contains nearly a quarter million fragments of nanoplastics. The study expresses concern that these minute particles may pose serious risks to human health. The term “microplastics” has become a familiar term in the conversation about plastic pollution; microplastics may be measured in millionths of a meter and can be viewed using widely available technologies, like scanning electron microscopes. Nanoplastics, in contrast, are thousands of times smaller – pretty much the size of a virus. These smaller sizes can translate to greater danger, an author of the article said, because this very small size allows the nanoplastics to more easily cross the blood-brain barrier and penetrate human cells. Nanoparticles have also been shown to cross the blood-placenta barrier. The study noted that in the production of bottled water, “plastic contamination is confirmed in every step from the well to the bottle.” To carry out the study, the researchers developed a new optical imaging technique “for rapid analysis of nanoplastics with unprecedented sensitivity and specificity.” Read the study here.