United States: Food And Beverage News And Trends - 23 September 2019

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

  • USDA publishes rule on regulation of hog slaughterhouses. On September 17, the USDA published a final rule for hog slaughterhouses that eliminates line-speed limits in those facilities and shifts some inspection tasks from federal inspectors to plant workers. The rule was met with immediate criticism from some public interest groups, which saidthat it will compromise food safety. "The USDA privatized poultry inspection under the Obama Administration. Yet in that case, the USDA responded to stakeholder concerns by maintaining slaughter line speed caps," the Center for Science in the Public Interest said. US Representative Rosa DeLauro (D-CT) said, "Make no mistake: This is all about corporate profit, not food safety concerns." But David Herring, president of the National Pork Producers Council, said the new system will lead to more investment by the industry in new technologies. The USDA said the rule will allow its inspectors to conduct more food safety checks to control dangerous pathogens.
  • Mississippi withdraws challenged regulations concerning plant-based foods.On September 5, the State of Mississippi withdrew regulations that had prohibited stores in that state from labeling non-meat products with such names as "veggie burgers." The state had faced a legal challenge over the regulations from the plant-based meat industry and the nonprofit Institute of Justice. In withdrawing the regulations, Mississippi proposed new ones that would allow such labeling – as long as the manufacturer also labels the product as "meat free," "meatless," "plant-based," "veggie-based," "made from plants," "vegetarian," or "vegan." Opponents of the regulations had assailed them as unnecessary to protect consumers and charged that the measures sought to provide economic protection to producers of traditional meat. "The new proposed regulation is a victory for the First Amendment and for common sense," said attorney Justin Pearson of the Institute for Justice.See some of our coverage of similar state laws and rules here and here.
  • Administration moves to ban flavored e-cigarettes. On September 11, President Donald Trump announced that the federal government plans to take action to pull most vaping products from the market. He mentioned growing concerns about health hazards and rising use by teenagers of the products. The Administration's proposal would ban e-cigarettes with popular fruity flavors, as well as menthol and mint e-cigarettes, from being sold in stores and by online sellers, leaving just tobacco-flavored products on the market.The action represents a major crackdown on a fast-growing sector that reached $7 billion in sales last year. The President made his statement in a White House appearance alongside First Lady Melania Trump, Health and Human Services Secretary Alex Azar and acting FDA Commissioner Ned Sharpless.  Azar said the FDA in the next few weeks will come up with a plan to require the removal of most flavored e-cigarettes from the market. Under the plan, which would likely take effect 30 days after its release, flavored e-cigarette products wouldn't be permitted back on the market until they received specific approval from the FDA.
  • States are considering potentially stringent anti-vaping measures.  Politico  magazine reported September 15 that many state regulators, emboldened by the Trump Administration's interest in cracking down on vaping products, are thinking of proposing severe restrictions of their own. The states, according to the article, see possible openings to move forward with significant new taxes, bans on flavored vapes, and perhaps outright prohibition of vaping products altogether. In New Jersey, for example, Governor Phil Murphy recently appointed a task force to make recommendations to him on the topic within three weeks. Michigan has already become the first state to impose a temporary ban on flavored e-cigarette products. Meanwhile, scientists have not yet reached a conclusion on the precise cause of the current vaping-related lung disease outbreak, which at this writing has sickened at least 530 people, 7 of whom have died.
  • New York City considers banning chocolate milk from public schools. The New York Post reported September 15 that the New York City school system is considering banning chocolate milk from being served in public schools. Schools Chancellor Richard Carranza is pressing for such a policy because of health concerns, including the sugar content of chocolate milk. According to a source in the system cited by the newspaper, "The thinking is that these kids are already getting too much sugar, why are they getting it in their milk?'' Other school districts, from San Francisco to Washington, DC, have already banned flavored milk. Officials in the New York school system said that no final decision has been made. In 2011, Los Angeles eliminated chocolate milk from its schools, only to bring it back in 2016 after it found that students were avoiding milk entirely if they couldn't get chocolate.
  • Agency grants extension of time for comment on bottle-size deregulation. On August 12, the Alcohol and Tobacco Tax and Trade Bureau extended until October 30 the deadline for public comment on its proposal to deregulate the permitted size of bottles of wine and distilled spirits. That amounts to a 60-day extension. The agency noted that the Wine Institute, the American Distilled Spirits Association, the European Commission and others requested the extension so they can provide comments. The agency said that relaxing existing limitations – in effect, permitting wine and spirits to be sold in bottles of any size, as long as full disclosure was made – "would eliminate restrictions that inhibit competition and the movement of goods in domestic and international commerce."
  • FDA to hold public meeting on food standards of identity. On August 28, the FDA announced it will hold a wide-ranging public meeting on September 27 concerning the agency's efforts to modernize food standards of identity as part of its Nutrition Innovation Strategy. The agency said the purpose of the meeting is to give interested persons an opportunity to discuss its efforts to modernize the standards of identity; to provide information about changes the agency could make to existing standards − particularly changes that could be made across categories of standardized foods, in order to facilitate innovation and provide flexibility for the development of healthier foods. The agency's aim in modernizing the standards is to protect consumers against adulteration; maintain the basic nature, characteristics and nutritional integrity of food; promote industry innovation; and provide manufacturers with the flexibility to produce more healthful foods.
  • UK study points to efficacy of taxing snacks rather than beverages; does this hold true for the US? A September 5 study in The BMJ, a weekly peer-reviewed medical journal published in the United Kingdom, suggests that taxing high-sugar snacks, such as candy and cake, may be more effective at reducing obesity than taxing sugary drinks. The study estimated the potential effect on body mass index and prevalence of obesity arising from a 20 percent price increase for high-sugar snacks. It found that the effect on the prevalence of obesity (a reduction of 2.7 percentage points) was more than double the level that would result from a similar price increase on sugar-sweetened drinks (1.3 percentage points). However, the authors of the study noted that results were based in part on a key difference in UK culture: in the UK, people tend to obtain a large percentage of the sugar they consume from snacks. This is not necessarily the case in other countries, such as the US and Mexico, where sugary drinks are responsible for a large percentage of sugar intake.
  • Supplement trade group says supplements deserve a bill of health. On August 28, the American Herbal Products Association, which represents dietary-supplement makers, issued a report finding that only 1.7 percent of the more than 800 recalls initiated by the FDA this year involved food supplements. The report was the first of its kind ever issued by the trade association. "These recall data provide additional evidence of the overall safety of the dietary supplement class," wrote AHPA Chief Information Analyst Merle Zimmermann, adding" "AHPA also regularly reviews other dietary supplement safety resources, including mandatory serious adverse event reports and recorded observations from FDA inspections, and the results suggest that current supplement laws and regulations are working effectively to protect consumer safety and ensure a marketplace of high-quality, safe products."

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