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

  • Health groups clash with USDA over school lunch program requirements. Health advocacy and nutrition groups are urging schools across the nation to reject a final rule from the Trump Administration that they say reverses progress on sodium reduction and whole grain consumption. The groups said schools should "continue their commitment to serve healthier foods on our kid' plates" Under the new rule, which reverses Obama Administration policy, schools serving lunches and other meals are only obligated to have half the grain they serve be whole grain-rich. Previously, all the grain had to be whole grain-rich, which is defined as 50 percent whole grain. The Center for Science in the Public Interest, the American Heart Association and other groups pointed out that the new rule, announced by the USDA on December 6, mandates that only 25 percent of the grains served to students needs to be whole. Announcing the new rule, Agriculture Secretary Sonny Perdue said, "USDA is committed to serving meals to kids that are both nutritious and satisfying. These common-sense flexibilities provide excellent customer service to our local school nutrition professionals, while giving children the world-class food service they deserve."
  • USDA official says GMO rule will be released by year end. At the American Seed Trade Conference in Chicago on December 6, Under Secretary of Agriculture Greg Ibach announced that the USDA's new rule on GMO labeling will be released by January 1, 2019. He said the deadlines for compliance with the new rule will probably line up with the FDA's compliance schedule for the new version of the Nutrition Facts label. That FDA rule begins to take effect in January 2020. The final GMO labeling rule, under a statute known as the National Bioengineered Food Disclosure Law, was sent to the White House Office of Management and Budget on August 31.
  • TTB enters into major settlement with wholesaler for unfair trade practices. On December 6, the Alcohol and Tobacco Tax and Trade Bureau announced it has entered into a $1.5 million settlement with Eagle Brands, a Miami beer wholesaler, for alleged violations of the TTB's rules against "pay to play." The agency worked with the Florida Division of Alcoholic Beverages and Tobacco to investigate the case and reach the settlement. TTB alleged Eagle Brands paid retailers to carry and promote its products to the exclusion of competing products, disguising the monies as payments for banquet events, credit card payments for rebates and consumer samplings. Eagle also gave its clients draft systems with the understanding that only Eagle Brands products could be run through the systems. George Halper, managing partner of Eagle Brands, said, "At no time did Eagle Brands as a company admit to any wrongdoing and the company was not found guilty of any wrongdoing. Eagle Brands and the TTB are committed to working cooperatively towards greater education and compliance efforts in the Miami marketplace." This is the largest pay to play settlement ever achieved by the TTB.
  • Romaine in the news. To date, 59 people across 15 states have fallen ill in an outbreak of E. coli linked to romaine lettuce from California, and 23 of them have been hospitalized. Across the US, romaine production has shifted from summer growing regions in California to winter regions, while the investigation into the source of the outbreak moves forward.

    One source of outbreak named. On November 13, the FDA identified a California farm as a source of the E. coli outbreak. Investigators found the outbreak strain, E. coli O157H:7, in an irrigation reservoir on the Adam Bros. Farm in Santa Maria, California. FDA Commissioner Scott Gottlieb emphasized that the agency does not regard the investigation as at an end – samples from other locations are still being tested, and, he said, other entities will likely be implicated. The FDA also has eliminated all farms in Ventura, San Luis Obispo and Santa Cruz counties from the list of possible origins. The Adam Bros. Farm, which is in Santa Barbara County, has not shipped any romaine since November 20, and FDA officials note that most, and possibly all, of the potentially contaminated romaine has likely aged out of the food supply system. However, on December 16, the Adam Bros. Farm also recalled some cauliflower and red and green leaf lettuces "out of an abundance of caution." No illnesses have been linked to the latter produce.

    Taking stock of the romaine recall. A December 10 feature article in Food Dive magazine stated that the recent nationwide voluntary recall of romaine lettuce was an extraordinary event for the grocery industry and resulted from an unusual request by FDA Commissioner Scott Gottlieb to remove all romaine from the shelves of stores across the nation. "The removal of romaine lettuce was particularly damaging to the grocery industry because of the timing, just before Thanksgiving, the large quantity of the product pulled and the expense to stores – including labor costs, lost sales and time spent dealing with the crisis," said Hilary Thesmar, senior vice president of food safety for the Food Marketing Institute. She noted that "the losses are in the millions." In a November 13 statement, the FDA reaffirmed that its swift response in calling for the withdrawal of romaine ahead of the holiday "was an especially important step" that helped contain the outbreak and prevented additional illnesses.

    See some of our earlier coverage of this outbreak.
  • California alcohol regulators issue guidance in aftermath of major fires. The California Department of Alcoholic Beverage Control on December 6 issued a guidance statement for licensed alcoholic-beverage businesses in that state that were affected by the recent Camp Fire, Hill Fire and Woolsey Fire. It clarified, among other things, that any state licensee whose premises were destroyed by fire is allowed to relocate to new premises within 500 feet of the old premises and operate there for up to six months. It noted, however, that there is no provision in state alcoholic-beverage law that permits suppliers to replace products that suffered breakage during natural disasters. The department said suppliers in that situation should file insurance claims; if a retail shop closes for more than 15 days, the department added, it is required to surrender its beverage license.
  • Recall of sausage links. Almost 30,000 pounds of Jimmy Dean ready-to-eat pork and chicken sausage links are being recalled by the manufacturer, CTI Foods of Owingsville, Kentucky, after consumers in Tennessee said they found pieces of metal in the product. The Food Safety and Inspection Service said in its recall notice, "The problem was discovered on Dec. 10, 2018, when FSIS received notification that the establishment had received five consumer complaints of metal pieces in the RTE sausage links. There have been no confirmed reports of adverse reactions due to consumption of these products.