Food and Beverage News and Trends

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

Avian influenza. The global outbreak of the H5 strain of avian influenza is continuing, with no end in sight. The Canadian Food Inspection ‎Agency (CFIA) has confirmed the presence of the H5 strain at a farm in Chilliwack, British Columbia. The ‎risk of avian influenza is generally higher in the fall and spring, when bird migration occurs. In recent weeks, avian flu has also been found in commercial flocks in Manitoba, Ontario, Saskatchewan and Quebec. To reduce the ‎risk of further outbreaks in BC, the province’s chief veterinary officer is requiring producers who are ‎regulated and have ‎quotas under Canada’s supply management system to keep their birds inside until ‎further notice. This fall, information sessions aimed at smaller producers will be hosted by provincial government veterinary specialists ‎in 11 communities to provide education on avian influenza.‎

Meanwhile, the fall migration is also spreading the deadly strain across the US. Farmers and state agricultural departments across the country are working closely with the USDA to ramp up biosecurity and keep commercial flocks away from wild birds, the vectors of the disease. On November 2, the CDC said nearly 48 million birds in commercial flocks have been euthanized in the US this year as a result of the virus. As predicted in the spring, the spread of avian flu has impacted the price, and availability, of Thanksgiving turkey. The Washington Post reported on October 26 that the price of turkey will be at least 20 percent higher this year than in 2021.

Nonprofits petition FDA to ban Red Dye No. 3 in foods. On October 24, a coalition of 24 public interest organizations petitioned the FDA to formally remove Red Dye No. 3 from the agency’s list of approved color additives in foods, dietary supplements, and oral medicines. The groups said that since the early 1980s, the FDA has had evidence that the dye causes cancer in laboratory animals. As a result, the groups said, in 1990 the FDA eliminated certain “provisionally listed” uses of the chemical – meaning that it is not permitted in cosmetics and externally applied drugs. At that time, the FDA also said it would “take steps” to ban the dye’s use in foods, ingested drugs, and supplements. But those steps were never taken. “It’s outrageous that the Food and Drug Administration has known since the 1980s that Red 3 has the potential to cause cancer, but still allows it to be used in the food we eat,” said Melanie Benesh, vice president of government affairs at the Environmental Working Group, one of the groups that signed the petition. “This is yet another glaring example of how the FDA has failed consumers when it comes to food safety.”

Health Canada issues updates to recommended daily potassium and sodium values. Health Canada has updated its ‎recommended daily potassium and sodium values as of October 20, 2022. An increased intake of ‎sodium is linked to an increase in hypertension, while an increase in potassium ‎may reduce blood pressure in individuals who have hypertension. Hypertension can lead to serious ‎conditions, including heart disease, strokes, and kidney disease. Health Canada’s studies establish that ‎Canadians consume too much sodium and insufficient potassium in their daily diets. Accordingly, Health Canada ‎has updated its table values for specific age groups for sodium, reducing the daily value for ‎children less than four years of age from 2,300 mg to 1,200 mg. Similarly, the daily value for potassium ‎was lowered in every age group except for infants ages 6 months to less than 12 months. Health ‎Canada considered that the lowered potassium values will allow for more products to make nutrient ‎content claims, such as being a “source of” potassium (for foods containing at least 5 percent of the ‎potassium daily value serving). Manufacturers have until January 1, 2026 to comply with the ‎updated values.‎

Food industry gears up to oppose changes in mandatory food package labeling. On October 17, Bloomberg News reported that the food industry is now speaking out against a to-be-announced Biden Administration plan that could change long-standing rules for food package labeling. The Administration recently asked the FDA to develop a system for front-of-pack labels on food products. Such labels, consumer advocates say, could help consumers make better nutrition choices as diet-related diseases are increasing and more than 40 percent of Americans are obese. Current rules require that nutrition facts, such as serving size and sodium, be printed on the back of a food package. The food industry is now making the points that the proposed changes would lead to an increase in food prices and that labeling should remain voluntary.

Ontario proposes amendments to reduce membership requirements for agricultural and horticultural societies. Agricultural and horticultural societies are important cornerstones for rural communities across Ontario, focusing on agricultural programs, promoting the conservation of natural resources, supporting programs to enrich rural life, and holding agricultural exhibitions and competitions. Under the current Agricultural and Horticultural Act, these societies must maintain a certain level of membership to qualify for an annual grant from the Ontario Ministry of Agriculture, Food and Rural Affairs. However, the COVID-19 pandemic and consequent public health restrictions significantly impacted the membership levels of many of these organizations, and it is now difficult for them to qualify for the annual grant. The Ontario government recently proposed amendments to the Act which would reduce the required membership levels by 33 to 40 per cent. These amendments aim to promote the financial stability of these organizations without requiring a return to pre-COVID-19 pandemic membership levels. The proposed amendments are open for comment until November 21, 2022.

Investigation into frozen crumbles. On October 25, the FDA announced it is continuing to investigate an outbreak of illnesses associated with Daily Harvest brand frozen French Lentil and Leek Crumbles. Investigators, among them the FDA, CDC and several independent labs, still have not found any clear reason for the outbreak, in an investigation that began in June. As of October 21, the number of consumer complaints about the product was 393, with at least 133 patients requiring hospitalization and 25 of them having to undergo a cholecystectomy, the surgical removal of the gall bladder. The FDA reported that problems described by patients in the outbreak include gastrointestinal, liver, bile duct, and gall bladder illnesses. The most recent illness onset was September 4. Daily Harvest recalled its frozen French Lentil and Leek Crumbles on June 17 and has been working closely with government and private investigators since then; it currently believes that tara flour, which it used only in this product and which has since been removed from the recipe, may be the source of the problem.

Coconut oil company settles case concerning allegedly misleading marketing. On October 25, Barlean’s Organic Oils LLC agreed to pay $1.6 million to resolve allegations that it deceptively portrayed coconut oil as healthful, according to a court filing in a California federal case. In the case, three consumers said that the company’s statements, such as “Coconut Oil: A Smart Fat” were misleading because they positioned coconut oil products as a healthy alternative to butter and cooking oils, whereas coconut oil is actually less healthful because of its high saturated fat content. In the lawsuit, the plaintiffs had asserted that the misleading labels encouraged people to purchase the products. The complaint stated that consumers were harmed as a direct result of buying the company’s coconut oil.

Barilla must face a class action concerning the source of its pasta. On October 17, a federal court denied a motion by Barilla America to dismiss a class action that accuses the company of misrepresenting its pasta products. The US District Court for the Northern District of California found that the company’s slogan, “Italy's No. 1 brand of pasta,” could mislead consumers to believe that the pasta is made in Italy, although the company is based in Illinois and its pasta is manufactured in Iowa and New York state. Barilla also features the green, red, and white colors of the Italian flag on its signature blue boxes. Barilla originated as a bread and pasta shop in Italy. It has asserted that its packaging and labeling are simply meant to invoke the company’s Italian roots and not to make a claim of origin.

Candy packages are now smaller; is this an effort to create healthier products? On October 21, The Washington Post reported that the package sizes of popular candy products are shrinking. The report said that consumers can partly blame “shrinkflation” — the phenomenon of manufacturers reducing the size of their products rather than increasing the price. The article noted that it’s not just candy: over the past two years, companies have downsized paper products, salty snacks and many other goods as ingredient, labor and transportation costs have skyrocketed. On the other hand, the article said, the size reductions are also a result of an effort by candy companies to lower the calorie counts in their products. The National Confectioners Association last month announced that 85 percent of chocolate and candy sold today comes in packaging that contains 200 calories or fewer per pack.

Government of Canada investing in research on role of oat protein in preventing disease.The ‎Government of Canada is investing up to $106,000 in new research into new claims that oat protein ‎can have positive effects on cholesterol and blood glucose levels. The research will be completed by ‎the Prairie Oat Growers Association in tandem with the St. Boniface Hospital Research Centre in ‎Winnipeg, Manitoba. This research is part of a health claim verification process to determine whether oat protein can positively impact cholesterol and blood glucose. ‎A positive outcome of this research, is that if the claim is verified, this may ultimately aid the industry in further diversifying market opportunities, stimulating increased ‎demand and economic benefits for Canadian oat growers.

Deli meat is found to be the major cause of listeriosis in the United States. According to a study published on September 15 in the International Journal of Food Microbiology, more than 90 percent of listeriosis cases in the United States arise from consumption of contaminated deli meat. The second most common cause is ready-to-eat salads, at just less than 5 percent. The study was led by Fernando Sampedro of the Environmental Health Sciences Division of the University of Minnesota’s School of Public Health. Pregnant women, infants, the elderly, and people with compromised health account for between 20 and 30 percent of the US population the study said, but make up the vast majority of listeriosis cases.

The correct word to use for cell-based products is “cultivated” – at least in Asia. Cellular agriculture producers across the Asian-Pacific region have come to an agreement that the preferred English-language term for this nascent food category is “cultivated.” On October 25, 36 leading organizations and companies active in the food sector signed a historic memorandum of understanding that concludes that the term “cultivated” is the preferred English-language term to describe products that have in the past been described with such terms as “clean meat” or “lab-grown meat” or “cell-based meat.” The MOU says “cultivated” is a scientifically accurate term that clearly sets apart foods that are cultivated from animal cells from other existing products. Standardizing the term, the signers said, will increase consumer awareness and will assist in marketing efforts. In a related development, this week leading worldwide food experts are meeting in Singapore to discuss the safety of cell-based food. The event, organized by the UN’s Food and Agriculture Organization and the World Health Organization, aims to develop a document that includes fully up-to-date technical knowledge on the safety aspects of cell-based food production – a document that is likely to be published in early 2023.