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

  • New FDA head pledges continuity in food regulation. On May 2, Ned Sharpless, the acting commissioner of the FDA, said in a speech at the annual meeting of the Food and Drug Law Institute that he plans to continue the initiatives and the approach to food regulation begun by former Commissioner Scott Gottlieb. "One area of FDA's responsibilities that I'm especially enthusiastic to take on is the work the Agency does in nutrition and food safety," Sharpless said. He went on to note that "as a physician, I have long appreciated the profound impact that improvements in diet and nutrition can have on human health through the reduction of many chronic diseases, from cancer to diabetes to heart disease. Consider this statistic from the American Heart Association – more than 20% of all deaths in the US in 2015 were attributable in part to a poor diet." Sharpless specifically mentioned the Food Safety Modernization Act, saying he is committed to working with farmers and importers to ensure they have the resources to comply with that law.
  • FDA encourages voluntary use of term "Best if Used By" on product labels. On May 23, FDA Deputy Commissioner Frank Yiannas sent an open letter to the food industry encouraging best practices to reduce food waste, which the letter said involves the loss of food worth $161 billion in the United States each year. The FDA said that confusion over date labeling and phrases like "Sell By" and "Use By" may account for 20 percent of that food waste. It said that the most accurate phrase that conveys information about a food's freshness and usability is "Best if Used By" and encouraged the food industry to use this term. "As approximately 80% of the foods in the US are regulated by the FDA, we would like to inform our regulated food industries that FDA strongly supports industry's voluntary industrywide efforts to use the 'Best if Used By' introductory phrase when choosing to include a quality-based date label to indicate when a product will be at its best flavor and quality," the letter concluded.
  • USDA sets forth new answers about bioengineered foods. On May 24, the USDA's Agricultural Marketing Service issued a guidance document with questions and answers about the agency's disclosure requirements for bioengineered foods. Among other things, the agency wrote that it would not be compiling a list of all the acceptable manufacturing processes that will make the existence of bioengineered ingredients undetectable in a product, as it considers those processes to be proprietary to food companies. It also said that once a process has been approved as not leading to a detectable amount of bioengineered ingredients, the process can be used by a company in any of its facilities. Furthermore, it said there is no required font size for the required disclosures; any type of label that sets out the declaration prominently and conspicuously so that consumers can read it will be acceptable.
  • Coffee is finally and formally exempted from California's Proposition 65. On June 3, California's Office of Administrative Law formally signed off on an exemption from California's Proposition 65 for coffee – meaning that sellers of the beverage in California will not have to post mandatory cancer warnings. Last year, a judge in Los Angeles ruled that coffee is potentially carcinogenic for humans and thus covered by Proposition 65, despite the widespread consensus in the health community that coffee is safe in moderate quantities. The state's Office of Environmental Health Hazard Assessment, which makes the final decision for the state on these issues, ruled recently that coffee is safe to drink -- based on the results of more than 1,000 studies that found no substantial evidence linking coffee to cancer, and the administrative law office agreed. So coffee products and sellers s in California will not, after all, need to post health warnings.
  • Large study of soy protein data finds it heart healthy.A new meta-analysis of data on soy protein and heart disease indicates that the consumption of 25 grams of soy protein per day reduces LDL cholesterol (the so-called bad cholesterol) by a "small but significant amount" – three to four percent in adults. This meta-analysis, published in the respected Journal of Nutrition, combined information on soy protein consumption from 46 controlled trials. Industry observers are now waiting to see how the FDA responds to the study; in 2017, the agency announced it was proposing to remove soy protein from its list of foods that reduce the risk of heart disease.The FDA has not set a date for its final decision on the health claim.
  • FDA draft guidance would permit use of term "potassium chloride salt."On May 17, the FDA issued draft guidance that would permit companies to use the term "potassium chloride salt" as an alternative to "potassium chloride" in the ingredient statement on food labels. "The flexibility in declaring potassium chloride in the ingredient statement on food labels may help inform consumers of the use of potassium chloride as at least a partial substitute for sodium chloride, thereby leading to the selection of foods with lower sodium content and decreasing the amount of sodium consumed," the agency said. The draft guidance came in response to a June 27, 2016 citizen petition from NuTek Food Science asking the agency to issue guidance permitting the use of the term "potassium salt" for potassium chloride. The FDA responded that "potassium salt" is not a name in common usage for the substance but that the term "potassium chloride salt" would appropriately signal to consumers that it is a substitute for table salt, thus helping to decrease sodium consumption.
  • Changes proposed to SNAP rules. Proposed Trump Administration changes to SNAP rules would make it easier for convenience stores to accept federal SNAP benefits – formerly called food stamps – without changing the products they offer for sale.Under current USDA rules put in place during the Obama Administration to provide SNAP recipients with access more healthful foods, stores wishing to sell products to SNAP recipients must comply with "minimum stocking requirements" around the foods they sell.They are required to stock seven varieties of food in four staple food groups – dairy products; fruits and vegetables; breads and cereals; and meats, poultry and fish. Core SNAP rules differentiate these staple foods from so-called accessory foods, such as soda, ice cream, pastries and other snacks.Under the proposed rules, many products that previously would have been classified as accessory foods will be considered staples. For instance, bottled maraschino cherries would be classified as fruit, and stuffed olives would be classified as vegetables. Margo Wootan, Vice President of Nutrition for the Center for Science in the Public Interest, said the real beneficiaries of the new rules are not food stamp recipients but convenience stores, dollar stores, liquor shops and other retail outlets. The National Association of Convenience Stores is among the supporters of the new rules. The proposed rule would not change the types of items recipients can purchase with their benefits.
  • Powdered alcohol continues to face legal problems. A May 10 article in the St. Joseph, Missouri News-Press notes that to date, 34 states and the District of Columbia have banned powdered alcohol, a product developed in 2007 and initially approved by the federal government in 2015. The powder, marketed under the brand name Palcohol, comes in several cocktail flavors and can be mixed with water or other liquids.However, two-thirds of US states have now banned any form of it because it is so easy to transport and conceal and is thought to facilitate underage drinking. The News-Press notes that, while powdered alcohol remains legal in Missouri, a bill to add it to the definition of "intoxicating beverage" was overwhelmingly passed by the state senate on April 11.
  • Bill introduced in Congress to permit shipments of alcohol by US Postal Service. On May 3, US Representative Jackie Speier (D-CA) introduced a bill that would end the existing Prohibition-era ban on shipments of alcohol by the US Postal Service. "In 2016, California was America's top destination for the direct shipment of wine, yet consumers and manufacturers are prohibited from using the US Postal Service to ship or deliver these everyday products," Speier said. "In most states, private carriers such as FedEx and UPS are already delivering alcoholic beverages. It makes no sense to create a competitive disadvantage for the USPS by barring them from these kinds of shipments, especially given the Postal Service's dire financial condition." The market for the shipment of alcohol in the United States is estimated at $3 billion annually. Representative Speier has introduced this proposal several times before, without success.
  • Texas Senate passes bill to permit to-go sales of beer from breweries. On May 22, the Texas Senate unanimously passed a major bill that would change the state's alcoholic-beverage laws, including an amendment that would permit a majority of the state's small in-state manufacturing breweries to sell their beers for off-premise consumption. The bill is expected to pass the state House of Representatives soon and to advance to Governor Greg Abbott for signature. Texas is now the only state in the country that does not allow beer to-go sales at manufacturing breweries. The bill succeeded in the Senate after the Wholesale Beer Distributors of Texas, a powerful lobbying group, agreed to back it. In February, the Texas Craft Brewers Guild and the other Texan wholesalers group, the Beer Alliance of Texas, also reached an agreement on to-go sales.
  • Connecticut significantly revises its alcohol laws. A new law passed June 1 by the Connecticut legislature, which takes effect in about a year, will put distilleries on an equal footing with wineries and breweries there. For the first time, distilleries will be able to serve liquor from their own taprooms in the state, which breweries and wineries can already do. Previously, distilleries were limited to two-ounce pours on site. Among other changes, breweries will be able to sell four cases of 12-ounce beers to consumers from their locations, as opposed to just 19 cans before the new law. A leading supporter in the Connecticut legislature said, "The goal of the liquor act was to bring Connecticut's liquor laws into the 21st century. They haven't been adjusted since Prohibition times, and this really address the concerns of the expanding beer industry, distilleries and the wine industry in our state."
  • Louisiana moves to permit delivery of alcohol to private homes. Under a law that is nearing final approval in Louisiana, adults will be able to receive deliveries of alcoholic beverages to their homes for the first time in that state. Both houses of the legislature approved the bill June 2, and it now goes to the governor for signature.Under the bill, liquor retailers will be able to deliver factory-sealed beverages to residences during authorized store hours. Among many restrictions in the law, stores will not be allowed to deliver alcoholic beverages to a campus address, and the delivery person must verify the legal age of the recipient.
  • Happy hour in Virginia becomes a little looser. Virginia restaurants and bars will be able to advertise lower drink prices for happy hour starting July 1. That's when a new state law goes into effect loosening the restrictions for the much-cherished lower-priced time of day. As of now, Virginia restaurants can't advertise specific prices of particular drinks, nor can they use any language in their ads other than "happy hour" and "drink special." After July 1, phrases like "Wine Wednesdays" will be allowed in Virginia, and consumers will be able to find out in advance what their drinks will cost. Some restrictions remain: two-for-one drink specials are still not allowed, and no happy hour can occur after 9 pm.
  • Tahini recall. On May 15, the FDA issued a multi-state Salmonella outbreak alert covering Karawan and Halva brand tahini imported from Israel, identifying Brodt Zenatti Holdings LLC of Jupiter, Florida, as one importer of the product. The tahini has been sold to consumers as well as food service businesses. The agency is concerned about this outbreak because the product has a two-year shelf life. To date, at least four people from three states have been confirmed with the outbreak strain of Salmonella.
  • Chicken recall. Perdue Chicken is recalling nearly 32,000 pounds of ready-to-eat products which the USDA's Food Safety and Inspection Service says appear to have been contaminated with pieces of bone. A number of products from the Perdue Simply Smart Organics line are affected, as well as bulk boxes of products in the Chef Quik line.The problem was identified in the wake of consumer complaints, and no injuries or adverse reactions have been reported.
  • Baltimore 300-foot mobile vendor rule is fine, court says. On May 31, the Maryland Court of Special Appeals overturned a lower court's finding that had deemed Baltimore's so-called 300-foot rule too vague to enforce.The 2014 law requires mobile food vendors, such as food trucks and pushcarts, to stay at least 300 feetfrom bricks-and-mortar restaurants selling the same product.Two Baltimore food truck owners, Nikki McGoans and Joey Vanoni, brought the suit in 2016, charging that the law violates their constitutional rights and that its only purpose is to shield existing businesses from competition.The case now is expected to move to the Maryland Court of Appeals.In the meantime, City Solicitor Andre Davis says that until the case is finally settled, the city will conduct only the most "gentle enforcement" of the law.