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

  • Pediatric, heart groups take position in favor of soda taxes. For the first time, the American Academy of Pediatrics and the American Heart Association have come out in favor of government efforts to reduce the sale of sugary beverages to children by means of soda taxes, warning labels and advertising restrictions. The health groups said their March 20 announcement was motivated by their desire to reduce obesity and Type 2 diabetes and that they support water and milk as the primary beverages for children and teens. "For children, the biggest source of added sugars often is not what they eat, it's what they drink," said Natalie Muth, a pediatrician and lead author of the groups' policy statement. Some estimates say that kids and teens get about 17 percent of their calories from added sugar, half of those from drinks.
  • Livestock groups ask for change in regulation of genetically engineered animals. Livestock groups are asking that federal regulation of genetically engineered animals be transferred from the FDA to the USDA. Currently, the FDA reviews the safety of genetically engineered animals, while the USDA handles genetically engineered plants. Animal agriculture groups contend that the FDA's process has been too slow. Only one genetically engineered species, AquaAdvantage salmon, has ever been approved, and that process took more than 20 years. Advocates for a regulatory change note that other countries now permit the marketing of genetically engineered animals. They are also encouraged by the recent agreement between the two agencies to divide the regulation of cell-based meat products between them, saying this interagency cooperation could be a model for the oversight of genetically engineered animals. The request was reported by Politico on March 14.
  • Kind snack company asks FDA to change its regulation of nutrient claims. On March 12, Kind Healthy Snacks filed a petition with the FDA asking the agency to change the way in which it regulates nutrient content claims on food products. The petition, co-signed by 10 public health experts, noted that the FDA now examines the quantity of a nutrient in a food product rather than the quality, which Kind claims "enables food marketers to put these claims on unhealthy products." Kind is urging the FDA to permit such nutritional claims only on products that have a "meaningful amount of at least one health-promoting food," like vegetables, legumes, fruits, whole grains, seeds or nuts. It is unclear when the FDA will act on the petition, given the recent resignation of Commissioner Scott Gottlieb.
  • FDA puts forth its proposed budget for food regulation. On March 20, the FDA set forth its priorities in its proposed budget for food regulation in the 2020 fiscal year. The agency wants to have more money to deploy whole genome sequencing, a technique that can quickly reveal the source of contaminated food and locate outbreaks that wouldn't otherwise have been noticed. The sources of a number of outbreaks in 2018 were more swiftly identified due to whole genome sequencing. FDA also wants to obtain more funding to review the safety of new food ingredients and products, thus permitting them to go onto the market with less delay. In all, the FDA is proposing $643 million more than was spent for food regulation in fiscal 2019. "We believe that the additional resources requested from Congress will help our program better protect our nation's food supply and lay the foundation for efforts to create a new era of smarter food safety in which new technologies can provide innovative products, help us better detect outbreaks, and better track and trace foods in the supply chain to prevent contaminated foods from reaching consumers," the agency said.
  • Illinois moves closer to permitting home delivery of alcohol.On March 13, the Executive Committee of the Illinois state senate unanimously passed a bill that would permit liquor licensees in the state to deliver alcoholic beverages directly to a consumer's door, as long as it could be guaranteed that the person receiving the delivery was of legal drinking age. Other conditions would have to be met as well. The bill is expected to be considered by the full state senate soon. One sponsor of the bill said, "In this new world of innovation where we now are able to order our groceries for delivery, this is an effort to ensure when we order our bread and meat, we can also order a bottle of wine."
  • TTB extends comment period on new alcohol labeling and advertising rules. On March 19, the federal Alcohol and Tobacco Tax and Trade Bureau announced in the Federal Register that it is extending for an additional 90 days its comment period on its efforts to revamp its rules for the labeling and advertising of wine, beer and bottled spirits. The agency said it is taking this step in response to requests made by several trade associations that represent makers of alcoholic beverages. The new deadline will be June 26, 2019. Among the proposals set forth in the TTB's rulemaking are clarifying that truthful and non-misleading comparisons in labels and advertisements do not violate the prohibition against "disparaging" statements and making it clear that statements on labels that do not have a reasonable basis in fact or that cannot be substantiated will be considered misleading.
  • TTB makes policy statement on alcohol in frozen desserts.On March 25, the Alcohol and Tobacco Tax and Trade Bureau set forth a new guideline that applies to companies that want to sell frozen dessert products that contain distilled spirits. The policy sets out criterion to make a case-by-case determination on whether a frozen product, such as ice cream or ice pops, made with distilled spirits is a non-beverage product or regulated as alcohol. TTB said that such products need to comply with TTB regulations if the products are "fit for beverage purposes." TTB notes in its guidance that under TTB regulations (27 C.F.R. 17.133(d)), ice cream and ices have been found to be unfit for beverage purposes "where only sufficient spirits are used for flavoring purposes." In determining whether a frozen dessert product containing distilled spirits is unfit for beverage purposes, the TTB considers a range of criteria related to the product, including its percentage of alcohol and the purpose served by the alcoholic ingredients, that may affect its fitness or unfitness for beverage purposes.