This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- FDA sets 2022 deadlines for sodium reduction goals, labeling of milk alternatives. The FDA announced on June 29 that in the next 12 months it is aiming to release its long-awaited voluntary sodium reduction goals and a draft guidance on the labeling of plant-based milk alternatives. The agency set June 2022 as a target date for the sodium reduction goals, which it originally proposed as voluntary guidelines in 2016 but did not finalize at the time.
- FDA and Dole announce blueberry recall. On June 25, the FDA announced that Dole Diversified North America, Inc. has recalled a limited number of cases of its Dole Fresh blueberries due to possible contamination with the Cyclospora parasite. So far, no illnesses have been reported in connection with the recall. The recall affects blueberries in various sizes packed between May 28 and June 9. Cyclosporiasis, the infection associated with Cyclospora, is an intestinal infection that can cause severe abdominal pain, diarrhea, nausea, vomiting, body aches and fatigue. The affected products were distributed in four US states – Illinois, Maine, New York, and Wisconsin, and in the Canadian provinces of Alberta and British Columbia.
- Restaurant grant program officially closes. On July 6, the Small Business Administration officially shuttered the Restaurant Revitalization Fund, the grant program created earlier this year as a lifeline for restaurants struggling to survive the pandemic. The $28.8 billion appropriated to run the fund has been completely exhausted, the SBA reports, going to 110,000 restaurants, bars and other small business providing onsite food and drink. Demand for the funds far exceeded the monies Congress had appropriated – another 278,000 restaurants, requesting more than $72 billion, have been informed the fund is shutting down due to "overwhelming demand." The RRF application process opened on May 3; within only 10 days, it had already received applications for more than twice the funds Congress had appropriated. The SBA recently informed applicants in a letter that the online RRF application platform will remain open until July 14 so that applicants may check their status. A spokesperson for the National Restaurant Association said, "For 100,000 restaurants, the R.R.F. has made their future clear and stable, but for the more than 200,000 operators shut out of funding, receiving this letter today only heightens their fear and anger."
- Snapple becomes target of class action over its coloring agents. In a federal class action complaint filed June 30, three consumers asserted that nine flavors of Snapple drinks that are labeled "All Natural" contain coloring agents that consumers would not expect and thus that Snapple has violated California consumer protection laws. Specifically, the complaint alleges that Snapple uses “vegetable and fruit juice concentrates," "vegetable juice concentrates,” “fruit juice concentrates," and/or beta carotene as coloring agents in the drinks. The plaintiffs say that they and other consumers would not expect these types of ingredients to be found in a product labeled "All Natural." They say that they would not have bought the Snapple products or that they would not have paid as much as they did, had they known the truth. The complaint was filed in the US District Court for the Eastern District of California.
- Appeals court affirms summary judgment for dog food maker in labeling case. On June 30, the US Court of Appeals for the Seventh Circuit affirmed a district court’s grant of summary judgment to Champion Petfoods USA Inc. in a class action brought by a purchaser of the company’s dog food. The plaintiff had disputed Champion’s claims on its packaging that the food was “biologically appropriate” and made of "fresh regional ingredients." The appeals court, however, found that the plaintiff "failed to produce sufficient evidence from which a reasonable jury could determine that any of the representations [on the packaging] were false or misleading." It specifically agreed with the lower court that Champion’s assertion that it uses fresh regional ingredients could not be reasonably interpreted to mean that the company uses fresh regional ingredients to the exclusion of all other ingredients.
- Wisconsin Assembly passes bill concerning labels on milk and meat substitutes. On June 22, the Wisconsin state Assembly unanimously passed a bill that would prohibit vegetarian or vegan milk or meat substitutes from being labeled in that state with terms that use the words "meat," "milk," or "dairy." The state’s agriculture and dairy industries support the bill as a way to combat what they say are false representations by manufacturers of products such as vegetarian burgers or oat milk. Supporters of the bill say that it will help protect the state’s agricultural economy, inform consumers, and put pressure on the federal government to take action regarding such labeling. The Plant-Based Foods Association, which represents manufacturers of these products, says bills of this sort are a misguided attack on innovation and infringe on the manufacturers’ free speech rights to use terms that consumers understand. The bill will now go to the state senate for consideration.
- California olive-oil producers divided on proposed labeling law. A proposed California law that would expand marketing and labeling requirements for olive oil has divided the state’s olive oil industry. Some olive oil producers In California are supporting the proposed legislation, which would prohibit a reference of any sort to the state of California on an olive oil label unless all the oil in the bottle is sourced from olives grown in California. One major producer, however, opposes the measure, calling AB 535 a blatant attempt to restrict competition. Michael Fox, CEO of a high-end olive oil company, calls the bill "a solution in search of a problem” and “a violation of our First Amendment commercial speech right and federal trademark law."
Grocers stockpiling food inventory. Facing concerns about coming food shortages and climbing prices, supermarkets are beginning to stockpile food. The Wall Street Journal reported on July 6 that major grocery companies are storing up supplies of frozen meat, dry goods, and other self-stable products. Customer demand for groceries is climbing; the US food supply chain is under pressure on an array of fronts; and, the publication says, retailers are “stockpiling to keep costs down and protect margins.” SpartanNash, a grocery chain based in Michigan, is among the major grocery retailers increasing its inventory after more than 100 of its suppliers notified it of coming price increases.