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

  • Dietary Guidelines panel to hold first meeting this month.The influential 2020 Dietary Guidelines Advisory Committee will hold its first meeting in Washington, DC on March 28 and 29. Every five years, HHS and USDA are obligated under law to update the Dietary Guidelines for Americans, the nation's go-to source for nutritional advice. The members of the 2020 committee – each a nationally recognized expert on diet and nutrition issues – were announced in February. The ultimate new guidelines will, for the first time, reflect both federal agency input and public comments.The public comment period on the guidelines opened on March 11, and comments will be accepted into early 2020.
  • NCI head appointed new acting director of the FDA. The Trump Administration announced March 12 that Norman "Ned" Sharpless will become acting commissioner of the FDA, replacing Scott Gottlieb, who is resigning to spend more time with his family. Sharpless is currently the head of the National Cancer Institute. It has been reported that Gottlieb has recommended to the administration that Sharpless be named the permanent commissioner of the agency. Sharpless has publicly supported the FDA's policy under Gottlieb to curb the sale of e-cigarettes and to make them unavailable to minors. Although Sharpless's views on key food safety and disclosure issues − such as the regulation of cell-cultured meat, the revision of the Nutrition Facts label and the disclosure of GMOs in food − are not known, FDA observers predict that he is likely to continue Gottlieb's approach once he is in office.
  • New report points to importance of sodium reduction for heart health. A report issued March 5 by the National Academies of Sciences, Engineering and Medicine reaffirmed the scientific conclusion that it is important for both adults and children to lower their sodium intake. The report concluded that adults should limit sodium to less than 2,300 milligrams per day and children to 1,200 to 2,300 milligrams per day. These were similar to previous salt-reduction targets. One new conclusion is that sodium reduction is instrumental not only in reducing high blood pressure but also in lowering the incidence of cardiovascular disease. The nonprofit Center for Science in the Public Interest wrote, "The new report should put an end to efforts by some food industry groups to spread misinformation and delay vital policy solutions."
  • USDA puts forth guidelines for dealing with potentially contaminated meat products. Carmen Rottenberg, administrator of the USDA's Food Safety and Inspection Service, said on March 4 that the department plans to issue new voluntary guidelines for meat safety in a matter of days. This action follows an increase in recalls of meat and poultry products that are suspected to possibly contain plastic, metal and other foreign substances. Under the new guidelines, the USDA will advise companies to start internal investigations when they receive customer complaints and to notify the government within 24 hours if contaminated products are in the marketplace. Consumer advocates say increased automation in meat processing plants has contributed to more machine parts breaking off and contaminating food.
  • FDA moves to permit imports of genetically engineered salmon. On March 8, the FDA announced it is deactivating a 2016 import alert that prevented genetically engineered salmon from entering the United States. The agency said it was doing so because when Congress passed a law in 2016 mandating disclosure of bioengineered foods, the USDA gained jurisdiction over these foods; further, the congressional mandate to disclose bioengineered foods was satisfied when the USDA issued final regulations implementing that law in late 2018. As a result, the FDA is permitting a product called AquAdvantage salmon eggs to be imported to a facility in Indiana, where the eggs will be grown into fish for food. AquAdvantage salmon are Atlantic salmon modified with DNA from other fish species to reach market weight in 18 to 20 months instead of the 28 to 36 months that conventionally farmed salmon require.
  • FDA, USDA announce specifics of their joint regulation of cell-cultured meat. On March 7, the FDA and USDA announced the specifics of their agreement to jointly regulate cell-culture meat, popularly known as lab meat. In a joint statement, the agencies said that the FDA will oversee cell collection, cell banks and cell growth and differentiation. During the cell harvest stage, a transition from the oversight of the FDA to that of the USDA's Food Safety and Inspection Service will occur. The FSIS will then oversee the production and labeling of human food products derived from the cells of livestock and poultry. The National Turkey Federation and the North American Meat Institute both expressed praise for the new regulatory scheme, saying that it is derived from sound logic and will ensure consumer confidence.
  • Milk producers urge FDA to take action against plant-based products.The National Milk Producers Federation (NMPF) has filed a citizen petition with the FDA proposing what it says would be "a practical solution to the dairy labeling problem that is grounded in current law and addresses contemporary concerns." The petition, filed February 22, proposes that plant-based products such as soy or almond milk that do not provide the same nutritional value as their dairy counterparts should be required by the FDA to use the term "imitation," while those that are the nutritional equivalent of dairy should be required to use the term "alternative." The NMPF said that it is only asking the FDA to enforce existing law regarding the legal definition of "milk." The Plant Based Foods Association responded that the "dairy labeling problem" is a problem that doesn't actually exist. Consumers, the association said, are not confused about the nature of plant-based "milks" or "yogurts."
  • Connecticut may become first state with statewide beverage tax.On February 20, Connecticut Governor Ned Lamont unveiled his proposed new two-year budget for the state, which includes new "sin taxes" on alcohol, sugary drinks, plastic bags and e-cigarettes and vaping products. Sugary drinks would be taxed at a rate of 1.5 cents per ounce. Ryan Drajewicz, Lamont's chief of staff, said the taxes were not primarily meant to raise revenue. "It's about changing behavior, behavior that leads to healthier lives and a better environment," he said. If this tax is enacted, Connecticut would become the first state with a statewide tax on sodas and other sugary drinks. The governor has said that such a tax would bring about $163 million to the state's coffers, besides making state residents healthier.
  • Will Maryland change its method of regulating alcohol?At a Maryland state Senate hearing on February 22, State Senator Benjamin Kramer contended that Maryland should shift its regulation of alcohol from the office of the state comptroller to a new commission appointed by the governor. Kramer said the current comptroller, Peter Franchot, has received donations from local breweries, which, Kramer said, is why Franchot is pushing for the removal of caps on how much craft beer can be made and sold in local breweries. Maryland is one of the few states that strictly limits how much beer craft-beer breweries can produce and sell, restrictions that critics say are archaic and favor out-of-state beer importers.
  • Appeals court rejects suit against Connecticut alcohol pricing regulations. On February 20, the US Court of Appeals for the Second Circuit rejected a challenge to Connecticut's liquor pricing regulations, finding that a lower court was correct when it tossed out a suit brought by Maryland-based Total Wine that alleged these regulations violate federal antitrust laws. The litigation looked at three provisions: the minimum retail price provision, which sets a lowest cost at which retailers must sell; the "post and hold" rule, requiring distributors to release bottle and case prices and giving them the opportunity to adjust prices; and rules banning discounts based on wholesale volume. Under Connecticut law, a package store can't sell a bottle of alcohol for less than the "bottle price" set by wholesalers and posted each month. This allows smaller stores to set prices close to those of larger retailers. Total Wine & Liquor charged that the rules stymied competition by preventing high-volume retailers from offering discounts that would benefit consumers. The appeals court said it was not within the court's power to rule on whether the regime led to higher prices for consumers. Some estimates say that liquor prices are as much as 24 percent higher in Connecticut than in surrounding states because of these regulations.
  • New Mexico contemplates relaxing its liquor laws.Bills introduced in the New Mexico legislature would for the first time permit people in that state to take home wine they ordered in a restaurant but didn't finish and also to have wine delivered to their door. State legislators say both measures, if passed, would tend to reduce the number of people who are driving under the influence of alcohol, since people would be more likely to imbibe only after they were safely at home. One legislative backer also said that the measures would aid the tourism business. They would "foster people having nice meals at home provided by a local restaurant. Instead of having to get dressed up and go out, you can have the same experience in the comfort of your own home," said a legislator.
  • Utah legislative committee rejects bill permitting stronger beer sales in groceries. A committee of the Utah House of Representatives on March 7 rejected an effort to permit the sale of beer with as much as 4.8 percent alcohol in grocery and convenience stores in that state. At present, only beer with an alcohol content of 3.2 percent is permitted to be sold in those stores. Stronger beer can be sold in Utah in state-regulated liquor stores. Earlier this year, the Utah Senate overwhelmingly passed a measure to permit the sale of stronger beer in grocery and convenience stores, but the House action seems to indicate that the effort is dead for this legislative year.
  • Texas groups take steps to make it possible to buy beer at breweries. On February 13, the Texas Craft Brewers Guild, which represents the interests of local Texas breweries, and the Beer Alliance of Texas, which represents the interests of beer distributors, agreed to a legislative change that would permit Texans for the first time to buy up to two cases of beer per person per day in places where beer is brewed. Texas is the only state in the country where customers cannot purchase beer from local breweries to consume at home, according to the Texas Craft Brewers Guild. Legislation to that effect must still be passed by both houses of the state legislature and signed by the governor, but observers say the agreement between the groups makes a change in state law much more likely.

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