Food and Beverage News and Trends - July 26, 2024

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

FDA outlines short-term nutrition agenda. In a speech at the IFT FIRST expo last week, FDA Deputy Commissioner Jim Jones emphasized the importance of nutrition as a priority at FDA. In his keynote address, the Deputy Commissioner outlined FDA’s intention to update sodium reduction targets, the “healthy” claim, and front-of-pack nutrition information later this year. He stated that initial data on industry’s voluntary efforts to reduce sodium by 12 percent across 164 categories of packaged is encouraging, so a new target will be issued “in the not too distant future.” He also said that the agency expects to issue the final rule updating the “healthy” definition as well as a voluntary logo for that claim to help consumers recognize products that meet the definition. FDA also aims to issue a proposed rule on front-of-pack (FOP) labeling for packaged foods that will identify a number of nutrients on FOP (eg, saturated fat, sugar, sodium).

Canadian Grocery Code of Conduct. In a major milestone, all of Canada’s leading grocery retailers have now agreed to sign onto the Canadian Grocery Code of Conduct Development. This proposed, voluntary code of conduct aims to foster fair and ethical dealings between retailers and suppliers by providing guidelines for fair negotiations, including the application of penalties and fees. It is expected to help small grocers, which often lack the bargaining power of their larger counterparts. While the code was not designed to reduce prices for consumers, Gary Sands, senior vice president of the Canadian Federation of Independent Grocers, predicts it will ultimately have a “positive impact” on prices. The code is set to take effect on June 1, 2025.

FSIS to begin new allergen verification sampling program. On August 1, 2024, FSIS will implement a new allergen verification sampling program at establishments that produce ready-to-eat (RTE) products with labeling that claims the absence of at least one of the 14 food allergens (eg, “no peanuts”). The allergens included in the new program include soy, crustacean shellfish (eg, crab, lobster, shrimp), eggs, peanuts, milk, and nine tree nuts – almond, Brazil nut, cashew, coconut, hazelnut, macadamia, pine nut, pistachio, and walnut. Additionally, FSIS will be testing for gluten, which can cause severe reactions in people with celiac disease or gluten sensitivity. FSIS intends to continue to develop the sampling program to include analysis for sesame.

Canada: Seeking to limit farmers' ancient practice of saving seed. The Canadian federal government has announced it is considering changes to seed laws that would require farmers to pay royalties to seed companies for 20 years after their original purchase of plant materials from protected varieties. These amendments primarily affect horticultural crops like vegetables, fruits, and ornamental plants, and would include not just seeds but materials like tree grafts. The rules would also restrict farmers' ability under the so-called Farmers’ Privilege to save and use hybrid seeds. The CFIA, which is leading the consultations, commented that the changes under consideration would bring Canada’s patent and intellectual property framework in line with international standards and encourage agricultural investment. The agency says it is hoping the changes will lead to planting of more innovative, climate-resilient crop varieties. Critics, however, argue that these changes could worsen Canada's seed diversity crisis, which has already seen a significant decline. Aabir Dey, Canadian Program Director at the nonprofit SeedChange, stated, "This is just part of the process, as far as I understand it, of interpreting and changing the regulations so that they can be more profitable for companies that are looking to sell proprietary seed.” The changes would not affect open-source seeds, which make up a majority of the plant varieties available in the marketplace.

EPA awards $4.3B in grants to reduce GHGs. On July 22, the EPA announced it is awarding $4.3 billion in grants to projects across the US working to cut GHG emissions. The grants, tackling emissions from agriculture, transportation, electric power, commercial and residential buildings, industry, and waste and materials management, will fund 25 projects in 30 states. Among the grants: $307 million to Nebraska’s Department of Environment and Energy to increase the adoption of climate-smart, precision agriculture and reduce agricultural waste from livestock and nearly $500 million to California’s South Coast Air Quality Management District for transportation and freight decarbonization at the ports of Los Angeles and Long Beach. EPA stated that the projects overall were created by states, local governments, Tribes, and coalitions of these entities. The grants are funded under the 2022 Inflation Reduction Act.

FTC and FDA warn companies about delta-8 products’ copycat child-friendly packaging. On July 18, the FDA and FTC issued cease-and-desist letters to six companies for selling delta-8 THC products in packaging that imitates popular national brands that appeal to children. A cease-and-desist letter was sent jointly to Hippy Mood, Earthly Hemps, Shamrockshrooms.com, Mary Janes Bakery Co. LLC, and Miami Rave LLC, and Life Leaf Medical CBD Center, and a separate warning letter was sent to GrowGod LLC. All were cautioned about illegally selling copycat food products containing delta-8 THC in violation of the Federal Food, Drug, and Cosmetic Act. The companies were given 15 working days to submit written responses setting out how they will address these violations and prevent future ones. Among the copycat products are a cookie called Trips Ahoy!, a cereal called Rainbow Rings which is sold in packaging featuring a cartoon toucan, and Flamin Hot Weedos, a corn snack featuring a sunglasses-wearing cheetah. Samuel Levine, director of the FTC’s Bureau of Consumer Protection, stated, “Companies that market and sell edible THC products that are easily mistaken for snacks and candy are not only acting illegally, but they are also putting the health of young children at risk.”

Health Canada to overhaul food packaging safety. Health Canada is considering changing its food packaging evaluation program. Currently, packaging materials intended for use with foods in Canada may be submitted voluntarily to Health Canada for a pre-market assessment of their chemical safety. Health Canada is actively considering regulatory changes that would make this form of assessment mandatory. Public consultations on the proposed regulation may start next year.

Recalled microdosing products are still on store shelves, FDA says. In the wake of an early June recall of Diamond Shruumz brand infused cones, chocolate bars, and gummies, the FDA on July 16 warned that many of these products are still on store shelves across the country. The Ohio Department of Agriculture also issued a public health advisory for these Diamond Shruumz brand products, because, despite the recall, the products are still being sold in Ohio stores. They have been linked to an array of symptoms, such as seizures, nausea, abnormal heart rates, and respiratory failure. The agency says that at least 69 people, among them “multiple children,” have reported illnesses after consuming the brand’s microdosing edibles. The manufacturer of Diamond Shruumz products, California-based Prophet Premium Blends, recalled the entire line in June. The company is working with the National Association of Convenience Stores and the National Smoke Shop Association to increase awareness of the recall. CDC also issued a health advisory on June 12 warning of severe illness potentially associated with the Diamond Shruumz Brand products. In addition, on July 18, CDC issued a report on adverse events associated with mushroom gummies with “nootropics” that contained undisclosed schedule I substances.

Listeria outbreak linked to sliced deli meats. The CDC is investigating a multistate outbreak of listeria that appears to be linked to sliced deli counter meats. As this writing, the outbreak has been detected in 12 US states; 28 people have reported falling ill; each of them has required hospitalization, and two of the infected have died. The CDC has been able to interview 18 of those patients, and 16 of them reported eating meats that had been sliced at a deli in the month before they fell ill. None reported eating prepackaged deli meats. DNA tests found the bacteria from the sick people was genetically similar, suggesting they probably were infected by the same food. The agency stated, “At this time CDC doesn’t have enough information to say which deli meats are the source of this outbreak.”

Avian flu update.

• At the request of Colorado officials, a nine-person CDC team is on the ground at a massive egg-laying operation in Colorado where six more farmworkers culling poultry at a large egg operation have been diagnosed with avian flu. In addition, on July 22, the Colorado Department of Public Health and Environment reported that yet another farm worker has tested positive for H5N1. That worker was part of a culling operation at a separate massive egg operation nearby. This brings the total number of known US animal-to-human cases of the virus to 12, 11 of those reported this year. The two farms together have about 3 million birds, which are all being culled. As in earlier cases, all the Colorado workers experienced only mild illnesses, such as conjunctivitis and common respiratory symptoms, and were not hospitalized. The CDC’s investigation will likely contribute to the ongoing scientific work to discover how H5N1 is transmitted among species.


• High temperatures are making it tougher for farms to follow safety precautions for containing the H5N1 virus. At the two egg operations in Colorado, temperatures outdoors reached as high as 104 and were likely higher inside the affected buildings. CDC Principal Deputy Director Dr. Nirav Shah noted that the 160 workers were all wearing PPE – Tyvek suits, goggles, respirators, boots, and gloves – and huge industrial fans had been set up to lower the temperature. But the extreme temperatures made it difficult for workers to maintain a seal on their masks and eye protection, and the fans were blowing air but also dust, debris, and feathers. Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, noted that firefighting offers a mode for safely working in dangerous heat. He said, “On 100-degree days, firefighters fight fires. What they do, though, is they have a plan in place for a limited period of exposure, and then back out and cool down, and, you know, then send in more people.”


• To date, Hawaii is the only US state in which H5N1 has not yet been detected – not in domestic birds, wild birds, or any mammals, including livestock. State Epidemiologist Dr. Sarah Kemble said that the state is working closely with federal officials to keep it that way. She said, “We have a multilayered influenza monitoring strategy in place across species. It’s not just cows. It’s people, birds, and looking at what safeguards we have in place for dairy cows.” So far, CDC’s wastewater monitoring program has not detected H5N1 in any samples from Honolulu’s Sand Island treatment plant.


• On July 15, the USDA announced that Colorado has become the 13th US state to detect bird flu in dairy cows.


• In another step toward understanding how mammals may become infected with H5N1, a new study from Iowa State University’s School of Veterinary Medicine has found that bovine mammary gland tissue holds receptors for the avian influenza virus.


• Alameda, California-based Alveo Technologies has announced the development of a rapid avian influenza molecular test. Alveo states that computer simulations show the test is capable of detecting the latest H5N1 variants, such as those infecting dairy herds in Colorado. The company forecasts shipping an avian flu test for poultry to the Middle East and EU starting this quarter.