This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- FDA leader points to major changes in nation’s food system. At a June 16 webinar sponsored by the Alliance for a Stronger FDA, FDA Deputy Commissioner Frank Yiannas said that two new developments are about to change the US food system in a dramatic and permanent manner. One development involves the way in which food is made, as plant-based, gene-edited and cell-based methods are increasingly used to produce food. The second development is the widespread use of data by regulators and food companies to ensure food safety. “We believe that we’re living in a new day of data,” Yiannas said. “And with better data, we can further modernize how we do exceptional compliance oversight. Let me be clear: This is not about doing less of things . . . But it is about using the right data insights, identifying the right attributes of the establishments that you regulate.”
- FDA announces voluntary dog food recall. On June 3, the FDA announced a voluntary recall of some dog food products manufactured and sold by the Fleet Wholesale Supply Company, on the grounds that the dog food may cause Salmonella illness in dogs and in human beings. No illnesses or complaints have yet been reported from the dog food. The issue arose when, in a routine inspection, the Minnesota Department of Agriculture conducted a positive test for Salmonella concerning the product. The FDA noted that in addition to risk to pets, there is risk to humans from handling contaminated products, especially if they have not thoroughly washed their hands after contact with the product.
- Organic trade group seeks to reinstate rule on organic eggs. On June 18, the Organic Trade Association formally asked a federal court to order the USDA to reinstate a 2017 regulation that had set welfare standards for organic livestock. The regulation had said that enclosed porches, which are used by some egg producers, do not satisfy the organic agriculture requirement to provide daily access to the outdoors for livestock. “We need a legal ruling,” said the group’s chief executive, Laura Batcha. Batcha noted that Agriculture Secretary Tom Vilsack has already ordered a reexamination of the Trump-era withdrawal of the regulation. “While we welcome Secretary Vilsack’s statement last week,” Batcha said, “the policy statement doesn’t guarantee a swift end to this harm.” The United States District Court for the District of Columbia has 30 days from the date the petition was filed s to respond to it. The rule in question was originally issued on January 20, 2017, the last day of the Obama Administration.
- Beef group objects to use of the labeling term “Product of the USA.” The National Cattlemen’s Beef Association on June 10 filed a petition with the USDA’s Food Safety and Inspection Service seeking to eliminate the use of the term “Product of the USA” and other US-origin labeling claims for beef products that it says are potentially misleading to consumers. The NCBA said in a statement that in its view, this phrase implies that a beef product is entirely of US origin and that consumers interpret it that way. However, in reality, imported beef products can legally be labeled “Product of the USA” as long as the product has been minimally processed or repackaged in a USDA-inspected facility. According to the group, such products are not subject to source verification and are not tied to a food safety standard.
- Pennsylvania, New York end pandemic alcohol rules. On June 15, the Pennsylvania Liquor Control Board unexpectedly ruled that, effective immediately, the state was returning to a prohibition of the sale of cocktails to go. The board reasoned that the authorization of cocktails to go during the COVID-19 pandemic should no longer apply now that the pandemic is winding down. The new liquor rules also halt the expansion of outdoor dining that had become prevalent in the state. From now on, Pennsylvania establishments that want to serve their guests curbside must file an emergency permit application. And, in a surprise announcement on June 23, New York Governor Andrew Cuomo lifted the pandemic state of emergency; the New York State Liquor Authority tweeted that “the temporary pandemic-related privileges for to-go and delivery of alcoholic beverages will end after June 24.” Restaurateurs in both states expressed consternation about the surprise decisions.
- But elsewhere, cocktails to go are going on. Other US states, however, are keeping and even extending their pandemic cocktails-to-go rules. In California, Governor Gavin Newsom announced on June 3 that California will allow restaurants and bars to continue selling cocktails to go through the end of the year. Massachusetts will allow takeout beer, wine and cocktails through April 2022. Illinois is extending its cocktails-to-go rule to January 1, 2024, and Oregon has made its drinks-to-go rules permanent, allowing licensed establishments to sell “mixed drinks and single servings of wine in sealed containers for off-premises consumption.”
- New York legislature kills proposal to ban certain dietary supplements for minors. A New York state bill that would have banned sales to minors of over-the-counter diet pills and muscle-building supplements has effectively died. The bill recently passed the state Senate in a vote of 58- 5, but the summer adjournment of the legislature has appeared to destroy its chances of becoming law. The bill would have banned the sale to minors of two categories of dietary supplements – sports nutrition and weight management products – without a doctor’s prescription. The Natural Products Association (NPA) had launched a major lobbying campaign against the bill, in which more than 3,000 emails were written to state legislators. Supplement industry spokespeople emphasized that they are committed to dealing with legitimate concerns relating to eating disorders but that an absolute ban on sales to minors is not the correct approach. A similar bill recently failed in the California legislature following a massive campaign organized by the NPA in which legislators received thousands of phone calls, swamping the capacity of their remote-work phone system. The legislative director of one assemblywoman noted that the volume of calls about the supplements bill prevented legislators from helping constituents with “problems that are really dire.”
- Appeals court affirms rejection of poultry lawsuit on preemption grounds. In an opinion issued June 4, the US Court of Appeals for the Ninth Circuit, affirming a district court, rejected a claim that Trader Joe’s violated state law by making inaccurate claims about the retained water content of its poultry products. The appeals court noted that the federal Poultry Products Inspection Act regulates the retained water data collection process and label production for all poultry products that the law covers. In addition, the court noted that federal law expressly preempts claims relating to regulated labels that would impose requirements in addition to, or different than those already required by federal law. Accordingly, the court ruled that the state-law claim is preempted by the federal statute and that the lawsuit could not continue.
