Food and Beverage News and Trends - October 11, 2024

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

California: Newsom signs three significant food bills. California Governor Gavin Newsom has signed into law three significant food-related bills. They are:

• AB 660, standardizing food package date labeling with the goal of reducing food waste. Food labels will say either “best if used by” to indicate peak product freshness or “use by” to indicate when a food product is no longer safe to eat. In addition, retailers may no longer use “sell by” stickers; these labels, which can confuse shoppers, are used by retail outlets to show when stock needs to be rotated. The bill, which also expressly allows for the sale, donation, or use of food after the quality date, takes effect July 1, 2026.


• AB 2316, banning six dyes from foods served on school menus. The measure, passed unanimously by the legislature in September, targets 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, and goes into effect December31, 2027. Last year, California banned four substances from food sold in the state: brominated vegetable oil, potassium bromate, propylparaben, and FD&C Red Dye #3. That law, discussed in this alert, becomes effective January 1, 2027.


• AB 347, adding comprehensive registration, certification, and enforcement provisions to California’s existing and forthcoming restrictions on the use of PFAS in covered products: juvenile products, textile articles, and food packaging. Learn more in our alert.

FDA discusses proposed process for post-market assessment of chemicals in food – comments due December 6. At a public meeting on September 25, the FDA discussed the agency’s proposed process for post-market assessment of chemicals in food, including food additives, substances that are generally recognized as safe (GRAS), color additives, food contact substances, and unintentional contaminants (eg, environmental contaminants). The meeting followed the release for comment of the agency’s Discussion Paper Development of an Enhanced Systematic Process for the FDA’s Post-Market Assessment of Chemicals in Food, which outlines a general approach for such a systematic process that would allow the FDA to proactively identify and target chemicals for post-market assessment in a structured manner based on risk. Our brief alert covers the meeting and looks at the factors the FDA will consider to ensure its assessments are fit for purpose. Comments on the proposal are due December 6.

Health Canada removes brominated vegetable oil from list of permitted additives. Brominated vegetable oil (BVO), usually soybean oil, has been permitted for use as an emulsifier in beverages containing citrus or spruce oils, and used to stabilize the beverage and prevent citrus flavoring from floating to the top. Health Canada completed an updated safety assessment of BVO and, although no immediate health concern was identified, the outcome of the assessment did not support BVO continuing to be permitted for use as a food additive. The modification to the list came into force on August 30, 2024. Health Canada is providing a one-year transition period to allow all impacted products to be reformulated and relabeled. This update may have been made with an eye to recent regulatory developments in California, where, in October 2023, Assembly Bill 418 was signed into law, amending the California Food Safety Act to ban BVO, among other substances, even though BVO was permitted at the time by the FDA. In July 2024, the US FDA revoked the regulation authorizing the use of BVO in food, pursuant to studies conducted in collaboration with the National Institutes of Health.

FDA’s new Human Foods Program is in effect. The FDA’s new Human Foods Program came into effect on October 1. The new program, the FDA says, is designed to protect and promote public health through transparent, science-based approaches to prevent foodborne illness, reduce diet-related chronic diseases, and ensure the safety of chemicals in food. The FDA had announced in February 2023 that it would restructure its food program by combining the Center for Food Safety and Applied Nutrition, Office of Food Policy and Response, and certain aspects of the Office of Regulatory Affairs into the new Human Foods Program. James Jones was named Deputy Commissioner for the Human Foods Program in August 2023. The FDA says that this is the single largest reorganization in the agency’s recent history, uniting 12 offices under single umbrella, affecting more than 8,000 employees, and touching almost every facet of the agency’s work.

FDA rolls out new complaint process. With the goal of improving the FDA’s ability to respond to problems arising from FDA-regulated products, on October 1 the agency rolled out a new, streamlined complaint process. To submit complaints or questions regarding foods and dietary supplements, use the reporting form on the Safety Reporting Portal; to submit complaints or questions about cosmetics and medical products, use a reporting form on the Medwatch page. Alternatively, complaints may be submitted via a new phone number, 1-888-SAFEFOOD.

Canada updates List of Permitted Food Enzymes and List of Permitted Emulsifying Agents.

• In response to a petition to Health Canada’s Food and Nutrition Directorate, the use of maltogenic alpha-amylase from the source organism Sacchoronyces cerevisiae LALL-MA+ has been authorized for use as a food enzyme in bread, flour, whole wheat flour, and unstandardized bakery products. At the time of the petition, maltogenic alpha-amylase was already permitted for use in these foods, but not from this particular source organism. Another change to the List of Permitted Food Enzymes is the addition of lipase from Rhizopus arrhizus AE-TL in the manufacture of modified fats and oils, pursuant to a petition to allow R. arrhizus as a new permitted source organism.


• The List of Permitted Emulsifying Agents has also been updated to expand the use of polyglycerol esters of interesterified castor oil fatty acids as an emulsifying agent in food products. This additive can now also be used in unstandardized mayonnaise-type dressings, unstandardized spreads, unstandardized sauces and unstandardized condiments at a maximum level of 0.8 percent. The update also increased the maximum level allowed in unstandardized chocolate flavored confectionery coatings from 0.25 percent to 0.50 percent.

Have you renewed your facility registration? On September 27, the FDA issued a Constituent Update reminding owners, operators, and agents in charge of a domestic or foreign facility engaged in manufacturing/processing, packing, or holding food for consumption by humans or animals in the US that they are required to register their facility with the FDA. If such registrations are not renewed by December 31, 2024, the FDA will regard them as expired. Unless you have received a waiver allowing paper submission, your renewal information should be submitted electronically through your FDA Industry Systems account.

New FSIS infographic for retailers on “intended use” of beef. The USDA’s Food Safety and Inspection Service has posted a new infographic on its website aiming to help retailers ensure that raw beef that they grind or otherwise process in their stores is safe for consumers. At present, the infographic notes, producers are required to verify that Shiga-toxin producing E. coli has been eliminated from raw beef products that are intended to be consumed non-intact (eg, mechanically tenderized beef, ground beef); however, there is no similar requirement for beef products that are intended for intact consumption (eg, steaks, roasts). Some retailers use beef intended for intact use to make ground beef, and FSIS notes that this could increase the risk of foodborne illness. The graphic is intended to educate retailers and remind them of proper cooking temperatures. The infographic, which is available here, has been translated into multiple languages.

FDA updates its program for monitoring mycotoxins in human foods. On September 26, the FDA updated its Mycotoxins in Domestic and Imported Human Foods Compliance Program to include the monitoring of additional mycotoxins of regulatory interest in human foods, specifically T-2/HT-2 toxins and zearalenone. The updated compliance program, the agency said, also reflects the transition by FDA regulatory laboratories to a multi-mycotoxin method for analysis in human foods, which will allow the agency to obtain results for multiple mycotoxins in a single sample analysis. Mycotoxins are toxic chemicals produced by fungi that are capable of causing disease and death in humans.

New requirements for food pricing in Québec. The Government of Québec has introduced bill 72, entitled, "An Act to protect consumers against abusive commercial practices and to offer better transparency with respect to prices and credit." The bill seeks to amend the "Consumer Protection Act" and could affect a number of industries operating in the province if, after making its way through the legislative process, bill 72 becomes law. Among others, the bill introduces new requirements for merchants who offer for sale a food product intended for human consumption, such as grocery retailers. Merchants will have to display more information related to pricing, including the price per unit of measurement, the price proposed to consumers who are not members of a loyalty program, the price applicable to the purchase of a set of food products, and an indication of the taxes applicable at the moment of payment. Merchants will also be prohibited from proposing to consumers the payment of a tip of a predetermined amount unless certain conditions are met. The bill also increases the threshold of the Accurate Pricing Policy, raising it from 10$ to 15$. As such, in the event of a pricing error at checkout, the customer will receive the item free of charge if the accurate price of the item is less than $15 and will receive a $15 discount if the accurate price is higher than $15.

Denver anti-slaughterhouse measure will appear on November ballot. On September 23, the Central Committee of the Denver Democratic Party announced that it is opposed to a proposed slaughterhouse ban, slated to appear on city ballots this November, that would prohibit the construction and operation of slaughterhouses in the city. Significant amounts of money are being spent by those favoring and opposing the measure. According to an election website, Pro-Animal Denver, which supports the ban, has raised more than $248,000 in its campaign. The “Stop the Ban, Protect Jobs” coalition has raised more than $957,000 and has the support of a number of business organizations and coalitions. An agricultural group opposed to the ban wrote, “This ban on slaughterhouses in the city and county of Denver has nothing to do with animal welfare and everything to do with forcing a fringe ideology on the people of Colorado and beyond. There are laws in place to protect the welfare of animals in our food system, which several federal agencies enforce.”

Boar’s Head names ex-FDA official as its top food safety advisor. On October 3, Boar’s Head Brand announced that food safety expert and former FDA official Frank Yiannas has been appointed chief food safety advisor for the company on an interim basis. In this role, Yiannas will help ensure that the company meets standards of food safety and quality. Yiannas will also oversee the nationwide search for a chief food safety officer to succeed him. Yiannas, the former Deputy Commissioner of food policy and response at the FDA, is a renowned food safety expert, microbiologist, and author who has also held leadership roles at Walmart and Disney. Boar's Head faces at least seven lawsuits following the August recall of millions of pounds of its deli meat after its products were linked to a deadly Listeria outbreak that has led to nine deaths and 57 hospitalizations. In early September, Senator Richard Blumenthal (D-CT) wrote to the USDA calling for it to investigate its handling of the Boar’s Head plant’s repeated violations of proper health practices. “The actions taken by the USDA were inadequate and an investigation is necessary to prevent deadly mistakes from reoccurring,” he wrote. See some of our earlier coverage of this story here.

Avian flu update.

• The US Bureau of Labor Statistics reports that the price of eggs has risen 28.1 percent in the last 12 months – an increase driven in part by recent outbreaks of H5N1 avian flu. The Bureau points to July 2024 flu outbreaks that devastated some table-egg layer facilities in Colorado as a key contributing factor in the price rise. Inflationary pressures such as the rising cost of fuel and packaging also contributed.


• On October 1, the USDA’s Animal and Plant Health Inspection Service confirmed another outbreak of H5N1 in dairy cattle, in another California herd. The dairy industry in California was already reeling from news that, over the weekend of September 20, the number on infected herds founds in that state doubled, from 17 to 34. On October 4, the Los Angeles Times reported that while the mortality rate of infected cows elsewhere in the US has hovered around 1 to 2 percent, in California between 10 percent and 15 percent of infected dairy cows are dying of the virus. As of this writing, the virus has been identified in 243 dairy herds in 14 US states.


• On October 3, the CDC confirmed that two more farmworkers, both in California’s Central Valley, have tested positive for the H5N1 virus, The two worked on different dairy operations that had each experienced outbreaks of the virus in their herds. This brings the total of known human infections in the US since March to 16. All but one of those has been connected to outbreaks in dairy cows or domestic poultry. Missouri health officials are continuing to investigate the one outlier, a patient with no known exposures to birds or dairy cattle; meanwhile, at this writing, the California Department of Public Health and CDC are investigating another possible human case.


• On October 4, HHS announced it is providing $72 million to vaccine manufacturers to help increase the US supply of currently available bird flu vaccines. Three manufacturers – CSL Seqirus, Sanofi, and GSK – will “fill and finish" vaccines, moving them from bulk storage into ready-to-use vials or pre-filled syringes.


• On October 7, the USDA said that the rate of infection among dairy herds in most affected states appears to be slowing down. Except for California, most states, even those that are being closely observed, have gone weeks without the discovery of new cases. Colorado, which has experienced outbreaks in 64 herds, has not reported an outbreak since mid-August, and Michigan’s most recent outbreak was found in early September.