New Date Labeling Initiative Launched to Reduce Consumer Confusion

  • Supermarket shelves are overflowing with food and beverage products sporting a dizzying array of date labels.  The Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) report (here and here) that, as it stands, at least 10 different date labels on packages – such as Sell By, Use By, Expires On, Best Before, Better if Used By or Best By – are currently in the marketplace and can result in confused consumers discarding a safe or usable product after the date on the package.
  • To reduce consumer confusion, GMA and FMI have joined together to spearhead efforts to streamline and standardize the wording accompanying the date labels on packages to offer greater clarity regarding the quality and safety of products. This new voluntary initiative calls for the use of just two standard phrases:
    • “BEST If Used By” – to describe product quality where the product may not taste or perform as expected but is safe to use or consume; and
    • “USE By” – which would apply to the few products that are highly perishable and/or have a food safety concern over time; these products should be consumed by the date listed on the package – and disposed of after that date.
  • This industry-wide effort, which seeks to stem consumer confusion over dates on the product label and potentially help consumers avoid unnecessary food waste, follows on USDA’ recent guidance encouraging manufacturers and retailers of meat, dairy and eggs to use one universal “Best if Used By” date label on their products.
  • GMA and FMI are encouraging retailers and manufacturers to immediately begin phasing in the common wording with widespread adoption by the summer of 2018.  Broad industry adoption of this new voluntary standard is intended to occur over time to allow companies flexibility to make the changes in a way that ensures consistency across their product categories.

FSIS Sets Public Meeting on Food Allergens for March 16

  • As our readership is well aware, under current law, establishments regulated by USDA’s Food Safety and Inspection Service (FSIS) are required to declare all ingredients, including allergens, on their products’ labels.  If FSIS determines that a product under its jurisdiction contains undeclared allergens, the Agency requests the establishment to recall the product.  FSIS recently reported that since 2008, the Agency has seen “a notable increase” in the number of recalls due to undeclared allergens in regulated products.
  • To address the continued occurrence of product recalls due to undeclared allergens and best practices for preventing the presence of undeclared allergens in FSIS-regulated products, FSIS has announced a public meeting to be held on March 16, 2017.  The meeting will include participation from the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), international partners, and academic institutions.  In addition to holding this public meeting, FSIS has published a compliance guideline to assist regulated establishments in addressing the hazards posed by allergens in their products.
  • The upcoming March 16, 2017 meeting is scheduled to be held at USDA’s Jefferson Auditorium in the South Building at 14th & Independence Ave. SW in Washington D.C., from 8 a.m. to 5:30 p.m.  For additional information on this meeting, please see the Federal Register Notice here.

Four Senators Ask Trump to Implement GAO Food Safety Recommendations

  • Four democratic senators wrote President Donald J. Trump on February 13, the same day that the General Accounting Office (GAO) released a report on federal oversight of food safety, asking that the Administration work with Congress to implement the recommendations in the report. The report is titled, Food Safety A National Strategy Is Needed to Address Fragmentation in Federal Oversight, and is dated January 2017.
  • The GAO report states that while FDA and FSIS have taken actions since 2014 to address fragmentation in the federal food safety oversight system, more needs to be done. GAO calls for a national strategy to identify short- and long-term actions to improve the food safety oversight system.
  • The four senators—Kristen Gillibrand (D-NY), Richard J. Durbin (D-IL), Dianne Feinstein (D-CA), and Richard Blumenthal (D-CT)—requested that efforts begin immediately to establish the recommended national strategy to address the shortcomings in food safety oversight. The letter also asks the Administration “to work with Congress to request any additional statutory authority or budgetary consideration that is required in order to enhance the implementation of the government performance plan.”
  • The senators concluded by stating that if the Administration does not feel that their recommendations are justified, they would like “detailed responses from the appropriate agency and department authorities as to why the current food safety system is considered adequate to address the Nation’s food safety needs.”
  • Concern about fragmentation within the federal food safety system is not new. However, obtaining more funding to develop a national strategy on food safety under the current Administration might be problematic, given its emphasis on reducing regulatory costs.

Export Certificates Go Electronic

CFSAN to issue electronic export certificates for food products.

  • Upon request by an exporter, FDA issues certificates of free sale (COFS) for certain food products regulated by FDA’s Center for Food Safety and Applied Nutrition (CFSAN). Although FDA does not require export certificates to export foods to foreign countries, review of a certificate may be required by foreign countries as part of the process to import a product into those countries.
  • Starting February 20, 2017, COFS will be issued online as downloadable Portable Document Format (PDF) files. Exporters will continue to use the FDA Certificate Application Process (CAP) to request COFS (account with FDA Industry Systems required). CFSAN is also revising the appearance of the COFS, including an updated letterhead and image of the Health and Human Services (HHS) seal. Additionally, for each certificate, FDA will provide a unique Certificate Identifier, which will allow foreign government officials authorized by the FDA to verify the authenticity of the certificate.
  • The change from paper to PDF certificates is expected to make the process of issuing COFS more efficient for both exporters and CFSAN. In addition to allowing exporters to submit applications and receive certificates electronically, CAP also allows exporters to receive real-time status updates via email and online tracking and to copy, edit, and resubmit applications.

FDA announces public meeting to obtain input on the use of the term “healthy” in the labeling of human food

Today, FDA announced a public meeting to give interested persons an opportunity to discuss the use of the term “healthy” in the labeling of human food.

  • As previously covered on this blog,  on September 28, 2016, FDA published a request for comment in the Federal Register.  The comment period, which was originally scheduled to end on January 26, 2017, was later extended to April 26, 2017.  At the same time, FDA published a guidance for industry entitled “Use of the Term ‘Healthy’ in the Labeling of Human Food Products,” in which the Agency stated their intent to exercise enforcement discretion with respect to the implied nutrient content claim “healthy” on foods that have a fat profile of predominantly mono and polyunsaturated fats, but do not meet the regulatory definition of “low fat,” or that contain at least 10 percent of the Daily Value (DV) per reference amount customarily consumed (RACC) of potassium or vitamin D. FDA has received over 800 comments in response to its request, and on January 27, 2017, FDA received a Citizen Petition from the Union of Concerned Scientists urging the FDA to establish “disqualifying levels” of added sugars that would render a product ineligible to use labeling or advertising with “healthy” claims.
  • FDA could promulgate regulations to formalize its current enforcement strategy as is or with amendments, including, potentially, establishing a “disqualifying level” for added sugars as part of its possible redefinition of the term “healthy”. The public meeting, which will be held in Rockville, Maryland on March 9, 2017, will offer an opportunity for interested parties to weigh in on these issues and others relating to the use of the term “healthy” in the labeling of human food.
  • The meeting will include introductory presentations, perspectives panels, and multiple opportunities for individuals to express their opinions at the meeting through oral presentations, participation in breakout sessions, and submission of electronic or written comments. FDA remains particularly interested in information, experiences, and issues related to:
    • “healthy” as a nutrient-based claim, food component-based claim, or both;
    • “healthy” single definition or definition by category;
    • consumer understanding of and response to the term “healthy”; and
    • when, if ever, the use of the term “healthy” may be false or misleading.
  • K&H will continue to closely monitor developments in this area. Clients who are interested in submitting written comments or in receiving a summary of the public meeting are invited to contact Melvin Drozen at drozen@khlaw.com or 202-434-4222.

State Legislators File Amicus Brief Against Philadelphia Beverage Tax

  • A 1.5 cent per ounce tax on sugar-sweetened beverages sold in Philadelphia took effect on January 1 of this year. As reported on this blog, the American Beverage Association (ABA) together with retailers, distributors and consumers filed a lawsuit in September 2016 challenging Philadelphia’s soda tax. Philadelphia Court of Common Pleas Judge Gary S. Glazer ruled in favor of the tax, but the beverage industry is appealing that decision.
  • A coalition of 5 state senators and 31 state representatives filed an amicus brief last week in the Commonwealth Court of Pennsylvania opposing Philadelphia’s beverage tax. The legislators argue that the sweetened beverage tax is unlawful since the products it covers are already subject to the state’s sales tax. Noting that the Appellee had argued that the tax is allowed because it is imposed on “the distribution” of the product and not at the sales point, the legislators provided examples of how the beverage was being passed on to consumers and also noted that the tax is not applied equally to all beverages.  Some of examples provided are listed below.
    • A Coca-Cola six-pack is taxed at 57% at the Collins Shop Rite.
    • A 15-pack Gatorade is taxed at 42%, a 12-pack of Ginger Ale is taxed at 21%, Waist Watcher Diet Tonic Water is taxed at 78 %, and a 4-pack of Red Bull is taxed at 6% at a Fresh Grocer.
  • Another argument against Philadelphia’s beverage tax is it will result in lost revenue in state tax. Explaining, the brief states, “Allowing this tax to remain not only causes immediate lost revenue to the general fund but will then snowball to make a budget every year become even more of a problem…. It is not unrealistic to expect that next year there will be a “candy tax” based upon volume in Philadelphia, a sweetened beverage tax based upon volume in Harrisburg, and a “snack/cookie tax” based upon volume in another cash-strapped city.”
  • The outcome of the appeal could impact efforts by other jurisdictions to bridge budget gaps with similar taxes. See our blog entry, Five More U.S. Cities to Tax Soft Drinks.

New study targets fluorinated grease-proofing agents employed in paper packaging for fast food

  • Fluorinated chemicals are used in formulating food packaging paper and paperboard materials for their grease-repellent properties.
  • A recent study by the Silent Spring Institute, published in Environmental Science & Technology Letters, suggests that a substantial portion of the paper and paperboard used for fast food packaging contains certain fluorinated grease-proofing chemicals, including poly or perfluoroalkyl substances (PFAS).  The study, which has received extensive media attention (see e.g., here and here), implicitly suggests that the presence of PFAS in the food packaging poses some safety or environmental concern.
  • While the press coverage suggests a potential health concern for consumers based on this study, at least some of the news articles do reference a U.S. Food and Drug Administration (FDA) spokesperson who stated that FDA has carefully reviewed the science on short-chain compounds and has not identified any safety concerns.
  • Additional coverage of the study and its implications is available on Keller and Heckman’s Packaging Law website.  For further information on the regulatory challenges facing the paper packaging industry both in the U.S. and abroad, sign up to attend Keller and Heckman’s 2nd Annual Paper Packaging Law Seminar, to be held April 4-5, 2017 in Atlanta, Georgia.

Oregon Contemplates GMO Ban

  • While much attention in the area of genetically modified organism (GMO) legislation has previously focused on labeling laws such as Vermont’s labeling law and, more recently, the federal GMO bill signed into law on July 29, 2016, various local jurisdictions have considered or enacted local bans on the cultivation of genetically modified (GM) crops.
  • Earlier this month, legislation was introduced in the Oregon state legislature that would repeal parts of a 2013 Oregon law that preempts local county laws or rules from regulating farm practices, including restrictions on the cultivation of GM crops.  In other words, if the proposed legislation becomes law, various local county governments would be authorized to implement local legislation banning the cultivation of GM crops.  For example, the passage of this bill would revive a GMO ban approved in May 2014 in Josephine County, Oregon.
  • The introduction of this legislation highlights the continued conflicts and tensions surrounding the cultivation of GM foods in the U.S.  The success of this latest effort to ban GMO cultivation at the local level remains to be seen.

USDA Extends Comment Period for Proposed Rule to Revamp Its Biotechnology Regulations

  • As previously covered on this blog, on January 19, 2017, USDA published a proposed rule to update its regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms in response to advances in genetic engineering and the Agency’s understanding of the plant pest and noxious weed risk posed by genetically engineered organisms.  The proposed updates would represent the first comprehensive revision of the regulations since they were established in 1987.
  • Today, APHIS announced that it would be extending the comment period for the proposed rule to June 19, 2017.  82 FR 10312.
  • With a new administration at the helm, it remains unclear whether this proposed rule will move forward following the end of the comment period on June 19, 2017.  Industry stakeholders are encouraged to take advantage of this additional time to prepare and submit comments to the Agency to ensure that any future Agency action as it relates to the proposed rule will result in the least regulatory burden possible.

USDA Delays Final Rule on Organic Livestock and Poultry Practices

  • As previously covered on this blog, on January 19, 2017, USDA published a controversial final rule on organic livestock and poultry which establishes minimum indoor and outdoor space requirements for chickens as a function of type of production and stage of life. 82 FR 7042.
  • On February 9, 2017, USDA published a Notice in the Federal Register delaying the effective date of the Organic Livestock and Poultry Practices final rule by 60 days to May 19, 2017.  The Agency noted that this delay is consistent with the Memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled, “Regulatory Freeze Pending Review.”
  • Given the controversial nature of the final rule and a new administration at the helm, the ultimate fate of this rule continues to remain unclear.
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