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

  • New Oklahoma alcohol-distribution law faces court challenge. On June 4, a lawsuit was filed in the Oklahoma state courts by 14 local and national alcohol businesses, asking for an injunction to stop the implementation of a new state alcohol distribution law. The new law, which is set to take effect in August, would require that the top 25 wine and spirits brands, ranked by sales, be made available to all wholesale distributors. Other brands would still be allowed to designate sole distributors in the state. The lawsuit contends that the new law violates a provision of the state constitution that permits all manufacturers to designate who will be the wholesalers for their products.
  • Alcohol industry awaits key Supreme Court decision that may come down within days. Wine Searchermagazine reported June 11 that the entire alcohol industry is awaiting a key US Supreme Court decision that is expected by most observers to come down from the Court on June 24. Only one decision day remains in the Court's term – June 24. The case challenges Tennessee's residency requirement restrictions, but has far-reaching implications for the interstate shipment of wine based on its interpretation of the Court's previous decision in Granholm. "The outcome in Tennessee Wine & Spirits Association vs. Blair could blast open the barricades currently preventing most Americans from ordering wine from out-of-state retail shops. Conversely, it's also possible that it could allow states to tighten alcohol laws without worrying about federal commerce-clause intervention. It's a high-risk, high-reward case for wine lovers," the magazine concluded. See some of our earlier coverage of this case here.
  • TTB announces new "Conditional Approval" process for alcohol labels. The federal Alcohol and Tobacco Tax and Trade Bureau (TTB) announced on June 13 that it is streamlining the process of approving labels for alcoholic beverages by using a new Conditional Approval process. This would permit the agency, under limited circumstances, to propose changes to the information an applicant enters in its proposed Certificate of Label Approval (COLA) and then to ask the applicant to accept or decline the proposed changes. This will only apply to the brand name, fanciful name, and, for wines, appellation and grape varietal. Under the new procedure, if the applicant agrees with the changes proposed by the TTB, it will simply check that it accepts the changes, and the application will be automatically approved. If the applicant decides not to accept the changes, the status of the application will automatically change to Needs Correction.
  • Louisiana House moves to bar use of term "cauliflower rice" in packaging. On June 3, the Louisiana House of Representatives passed a bill that would prohibit the labeling of products as "cauliflower rice" in that state. The bill, which previously gained approval in the state Senate, is expected to go to the governor soon for possible signature. The bill is being supported by major rice growers in the state, who contend that the term "cauliflower rice" for a cauliflower product that does not contain rice is misleading to consumers. However, the bill is being delayed because it must now return to the state Senate after a leading House sponsor added a provision that would specifically permit the use of the term "riced cauliflower" in Louisiana. In any case, a legal challenge to the law is expected once it passes. Similar legislation has passed in Arkansas and Missouri. Louisiana is the nation's third-largest rice-producing state.
  • FDA settles suit with nonprofit concerning deadlines for reporting on high-risk foods. On June 7, the US District Court for the Northern District of California ordered the FDA and HHS to start work on legally mandated rules regarding food recalls and outbreaks of foodborne illness. The consent decree was the outcome of a lawsuit brought by the Center for Food Safety and the Center for Environmental Health in 2018 that charged the federal agencies were failing to comply with an important food safety timetable set out in the 2011 Food Safety Modernization Act. The FDA agreed to a schedule setting out clear deadlines for key actions; among them, that the agency must designate "high risk" foods by September 2020 and must establish reporting requirements for those foods by November 2022. The broad regulatory goal of the FSMA is to prevent outbreaks of foodborne illness.
  • FDA responds to concerns over presence of industrial compounds in certain foods. The Associated Press reported on June 3 that the FDA's first broad tests of food for the presence of a group of nonstick stain-resistant industrial compounds found substantial levels of the compounds in some grocery store meals and seafood, as well as in chocolate cake. The compounds, known as per- and polyfluoroalykyl substances, or PFAs, degrade very slowly in nature. The study was first publicized by the Environmental Working Group. On June 11, Acting FDA Commissioner Ned Sharpless and Deputy Commissioner Frank Yiannas issued a joint statement saying, "Based on the available current science, the FDA does not have any indication that these substances are a human health concern" and do not pose "a food safety risk in human food" at the levels FDA found in the samples it tested.
  • FDA takes final action on "added sugar" labeling for honey and similar products. On June 18, the FDA issued a final guidance stating that maple syrup, honey, agave syrup and other sugars sold as single ingredients, such as pure honey or pure maple syrup, will not have to be listed as "added sugar" on the product's Nutrition Facts Panel. The FDA had previously proposed such a listing, triggering a universally negative reaction from industry members, who contended that listing that sugars had been "added" would imply, incorrectly, that the honey or similar product contained added sugar that was not present in the natural product. Dried cranberry products and cranberry juices that have added sugar must still disclose the sugar in grams, but manufacturers may also include a note on the label that says that the added sugar is there to improve the palatability of naturally tart cranberries.
  • FDA announces times and places for advisory committee meetings on new diet guidelines. The FDA announced on June 18 that the next meeting of its 2020 Dietary Guidelines Advisory Committee will take place on July 10 and July 11, 2019, in Washington, DC. Later meetings will take place in Washington, DC on October 24 and October 25; in Houston on January 23 and January 24, 2020; and in Washington, DC on March 12 and March 13, 2020. The purpose of the committee is to help the FDA develop national dietary guidelines in accordance with the latest scientific research. The meetings will be open to the public and will be accessible in person or by webcast.
  • Frozen food recalls in the news. In recent days, FDA and USDA have announced significant recalls of several frozen products found on US store shelves.
    • Spinach. The Sprouts Farmers Market chain on June 18 announced a nationwide recall of frozen cut leaf spinach produced by National Frozen Foods of Oregon for possible Listeria contamination. The recall involves both conventional and organic 16-ounce bags. The spinach was shipped to stores in 19 US states, and the company has removed the affected product from its shelves.
    • Red raspberries. In the US West, WinCo Foods on June 17 announced a recall of its store brand of frozen red raspberries after routine FDA testing found possible contamination with norovirus. The 12-ounce bags of raspberries were sold in WinCo stores in 10 Western states.
    • Frozen chicken strips. More than 11 million pounds of frozen chicken strips manufactured by Tysons have been recalled due to possible contamination with bits of metal. The recall covers 11 brands of chicken strips, sold by major chains across the US and shipped abroad. The USDA's Food Safety and Inspection Service notes, "The problem was discovered when FSIS received two consumer complaints of extraneous material in the chicken strip products. FSIS is now aware of six complaints during this time frame involving similar pieces of metal with three alleging oral injury." The recall was originally posted March 21, then expanded on May 4; the products have also been sold to commercial and military kitchen suppliers.
  • White House sets forth new executive order on agricultural biotech. On June 11, President Donald Trump signed an executive order mandating that federal agencies implement certain policies to modernize the regulatory framework for agricultural biotechnology. The order directs the secretary of Agriculture, the administrator of the Environmental Protection Agency and the FDA commissioner to take specific actions to streamline science-based, timely, efficient and transparent oversight of the products of agricultural biotechnology. Secretary of Agriculture Sonny Perdue praised the order, saying, "Our current regulatory framework has impeded innovation instead of facilitating it. I applaud President Trump for signing this important Executive Order that will help America's farmers do what we aspire to do at USDA: Do right and feed everyone." The nonprofit Center for Science in the Public Interest responded, "CSPI strongly supports a regulatory system that is science-based, predictable, transparent, and efficient – principles articulated in the executive order. But no attempt at streamlining the work of biotechnology regulators at the Food and Drug Administration, the US Department of Agriculture, and the Environmental Protection Agency should come at the expense of safety."

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