Proposed 2019 Budget Seeks Major Revamp to USDA’s Supplemental Nutrition Assistance Program (SNAP)

  • USDA’s Food and Nutrition Service (FNS) administers the Supplemental Nutrition Assistance Program (SNAP), also colloquially known as the “Food Stamps” Program.  SNAP, through State Agency partners, offers nutrition assistance to more than 47 million eligible, low-income individuals and families.
  • The Trump Administration’s proposed 2019 budget seeks to overhaul SNAP.  In particular, the budget request proposes that more than 80 percent of SNAP recipients would receive about half of their benefits in the form of a monthly America’s Harvest Box with items such as juice, grains, ready-eat-cereals, pasta, peanut butter, beans, and canned fruits and vegetables, which would replace about half of their current SNAP benefits. The remaining SNAP benefits would go on debit cards to be used in grocery stores. (Currently, SNAP beneficiaries get money loaded onto an EBT card they can use to buy any foods that fall under the guidelines). T
  • The Administration is touting the proposed overhaul as a “cost-effective approach” with “no loss in food benefits to participants.” Last year, Congress largely ignored the Trump’s administrations proposed budget for SNAP, when he sought to cut funding by a quarter. 2019 is a farm bill year, however.  This means that many budgetary decisions will be made among the House and Senate agriculture committees. The food industry, of course, has a vested interest in how this all transpires and would likely coalesce to oppose any legislative or policy initiatives that would have the effect of curtailing eligible SNAP products and hence restricting consumer choice.

New DOJ Policy Says Government Lawyers Cannot Base Enforcement Actions on Guidance Documents

  • As our readership is well aware, the U.S. Food and Drug Administration (FDA) frequently issues guidance documents for all areas under its regulatory purview, including foods. These guidance documents seek to clarify and supplement existing regulations.
  • On November 16, 2017, Attorney General Jeff Sessions ostensibly expressed a distaste for binding private parties to provisions in guidance documents that have not undergone the rulemaking process.
  • On January 25, 2018, the U.S. Department of Justice changed its policy such that government lawyers will no longer be able to rely on guidance documents to establish civil law infractions.  In other words, going forward under the current Administration, “noncompliance with any guidance document cannot be used to prove violations involving federal civil enforcement actions.”
  • This policy change could have a substantial effect on regulatory actions brought against FDA-regulated entities.

FDA Releases 2017 Edition of the Food Code

  • As previously reported on this blog, FDA publishes a Food Code every four years that serves as a model for retail and food service regulations nationwide. The Food Code provisions are designed to be consistent with federal food laws and regulations and may be enacted into statute, promulgated as a regulation, or adopted as an ordinance by states or local jurisdictions.
  • On February 12, 2018, FDA released the 2017 Food Code (9th edition). This edition reflects input from regulatory officials, industry, academia, and consumers that participated in the 2016 meeting of the Conference for Food Protection (CFP). Some of the updates to the 2017 version include the following:
    • Addition of the term “Intact Meat,” which means a cut of whole muscle(s) meat that has not undergone comminution, injection, mechanical tenderization, or reconstruction;
    • Revision of the requirement for the Person in Charge (PIC) to be a Certified Food Protection Manager; and
    • Harmonization of cooking time/temperature parameters for intact and non-intact meat and poultry that are in accordance with guidance from the U.S. Department of Agriculture’s Food Safety and Inspection Service.
  • FDA urges state, local, tribal, and territorial regulatory bodies to adopt the latest version of the Food Code, which the agency points out is based on the most current science available. Other advantages—such as promotion of uniform national standards for retail food safety and conservation of resource—are listed by FDA on its website.

USCA petitions USDA for Labeling Alternative Beef Products

  • The U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) regulates the quality, safety, and labeling of meat, poultry, and egg products marketed in the United States.  Recently, alternative meat products (known as “clean” meat) produced by culturing cells have become an increasingly hot topic.
  • On February 9, 2018, the United States Cattlemen’s Association (USCA) filed a petition with the USDA’s Food Safety and Inspection Service (FSIS) requesting that the Agency undertake rulemaking on beef labeling to clarify for consumers the difference between beef derived from cattle and “beef” products created in a laboratory.
  • A key question is whether USDA should treat cultured “meat” in the same way as meat produced from raising animals. Not surprisingly perhaps, the USCA petition argues that such products should not be labeled as “beef” or “meat”. In light of the fact that cultured meat is a burgeoning area of food production, we will be closely monitoring regulatory developments as they unfold.

USDA and FDA Announce Formal Agreement to Bolster Coordination

  • The U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA) work closely to regulate the nation’s food supply. USDA oversees the safety of meat, poultry, and certain egg products, while FDA has authority over all other foods such as dairy, seafood, produce and packaged foods. USDA and FDA partner in many key areas, including produce safety and biotechnology efforts.
  • On January 30, 2018, USDA Secretary Sonny Perdue and FDA Commissioner Scott Gottlieb announced a formal agreement aimed at making the oversight of food more efficient and effective by bolstering coordination between the two agencies. The formal agreement outlines efforts to increase interagency collaboration, to promote efficiency and effectiveness with respect to produce safety and biotechnology activities, and to provide clarity to manufacturers regarding the agencies’ joint efforts.
  • This agreement represents the agencies’ latest initiative to streamline regulatory responsibilities and use government resources more efficiently to protect public health. In particular, the agreement seeks to increase clarity and efficiency and potentially reduce the number of establishments subject to the dual regulatory requirements of the USDA and FDA.
  • For example, an establishment that produces both chicken noodle soup and vegetable soup is currently subject to regulation by both agencies. The agreement tasks FDA and USDA with identifying ways to streamline regulation and reduce inspection inefficiencies while achieving food safety standards for dual-jurisdiction facilities. The successful implementation of this initiative would certainly reduce regulatory burden and costs.

House Passes Bill to Ease Menu Labeling Rules

  • Over the past several years, FDA has been in the process of implementing menu labeling provisions added to the Federal Food, Drug, and Cosmetic Act by the Affordable Care Act. Under the new requirements, restaurants or similar retail food establishments (in chains of 20 or more locations doing business under the same name and selling substantially similar menu items) must provide calorie and other nutrition information for standard menu items. The menu labeling requirements originally were scheduled to take effect on December 1, 2015. The compliance date has since been delayed until May 8, 2018.  In the meantime, Congress has been considering legislation to modify the menu labeling requirements to provide flexibility in determining how to disclose nutrition information.
  • On February 6, 2018, the U.S. House of Representatives passed The Common Sense Nutrition Disclosure Act, introduced by Reps. Cathy McMorris Rodgers (R-WA) and Tony Cárdenas (D-CA), 266-157, with the support of 32 Democrats. The bill would allow restaurants and grocery retailers the choice of listing calories for the whole menu item, by serving, or per “common unit” of a food item. The bill also provides additional flexibility on where establishments can post calorie information. More specifically, under the proposed bill, nutritional information may be provided solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises.  The Food Marketing Institute applauded the passage of the bill.
  • Roy Blunt (R-Mo.) has offered a companion bill in the Senate where it likely faces an uphill but not insurmountable battle. The 16 co-sponsors of the Senate bill include three moderate Democrats up for reelection this year — Sens. Heidi Heitkamp (N.D.), Joe Donnelly (Ind.) and Claire McCaskeill (Mo.).  The bill will need to garner the support of at least nine Democrats to pass the Senate.  Given the increasing bipartisan support for this bill combined with the flexibilities afforded to industry under its provisions, The Common Sense Nutrition Disclosure Act (or some variation thereof) may have a chance of ultimately becoming law.

Colorado Rejects Latest COOL Measure

  • As previously covered on this blog, mandatory country of origin labeling (COOL) rules for beef products have long been the subject of controversy and challenge, culminating in: (1) a World Trade Organization (WTO) ruling that the COOL requirements violate U.S. trade obligations to Canada and Mexico and (2) Congress repealing COOL for beef and pork as of December 21, 2015.  Since then, some states have sought to require COOL labeling for beef within their states.  For example, in 2017, Wyoming, South Dakota and Colorado considered state-level COOL legislation, but in each case, the measures were defeated.  And on January 5, 2018, Colorado state legislators introduced a bill titled “Beef Country of Origin Recognition System” also referred to as the “Beef COORS bill” which proposed that “Product of the USA” labels be limited to beef derived exclusively from animals born, raised and slaughtered in the United States.
  • Last week, Colorado legislators rejected the “Beef COORS bill,” voting 10 to 3 in committee to prevent the measure from being debated on the Assembly’s floor by the state’s House of Representatives.
  • The ultimate fate of COOL for beef at the state and federal level remains unclear, particularly since some stakeholders are pushing the Administration to follow through on its campaign promise to create a level playing field for independent domestic meat producers through increasing transparency for consumers, i.e., to have COOL comprise a key element of the Administration’s North American Free Trade Agreement (NAFTA) renegotiations.

Salmon Farming Update: Washington State Terminates Another Lease

  • As previously reported on this blog, Cooke Aquaculture (Cooke) sued the Washington State Department of Natural Resources (DNR) last month for terminating its Port Angeles net pen lease for salmon farming. On February 4, Washington State DNR announced that it was also terminating the lease for the company’s Cypress Island Atlantic salmon net pens. In August 2017, one of Cooke’s Cypress Island net pens failed, releasing more than 240,000 Atlantic salmon into the Puget Sound.
  • The termination of the Port Angeles net pen lease followed the January 30 release of a report on the net pen failure. The investigative report—prepared jointly Washington State’s Department of Ecology, Department of Fish and Wildlife, and DNR—determined that the probable cause of the incident was due to failure of Cooke to adequately clean the nets containing the fish. The report also faulted Cooke for underreporting the number of fish that escaped during the net pen collapse and for over-reporting the number of salmon it recovered. Furthermore, on January 30, the Washington State Department of Ecology fined Cooke $332,000 for violating it water quality permit leading up to and during the net pen collapse.
  • The future of Cooke’s remaining two leases for Atlantic salmon net pen facilities in Washington State (Rich Passage and Hope Island) is also uncertain. DNR is currently reviewing those leases. In addition, several bills have been introduced in the Washington legislature that would restrict aquaculture in Washington State. They range from HB 2956 that would restrict future salmon farming leases to production of single-sex salmon to SB 6086 that would ban any new leases for aquaculture of Atlantic salmon.

European Commission Publishes Notice on Possible Food Law Implications of Brexit

  • On March 29, 2017, the United Kingdom (UK) officially notified its intention to leave the European Union (EU).  As of March 30, 2019, EU food law will no longer be applicable to the UK unless a possible withdrawal agreement specifies otherwise.
  • On February 1, 2018, the European Commission published a Notice to Stakeholders on Withdrawal of the United Kingdom and EU food law. Highlights of the Notice include:
    • The importation of products of animal origin from the UK into EU-27, will only be possible if the following conditions are met:
      • the United Kingdom is “listed” by the Commission for public and animal health purposes;
      • the establishment in the United Kingdom from which the food is dispatched, and obtained or prepared in, is “listed” by the Commission for public health purposes;
      • the United Kingdom is “listed” by the Commission as having a residue control plan approved in accordance with Directive 96/23/EC39 for the animals and animal products specified therein;
      • The imported food satisfies all food hygiene requirements set out in the applicable EU legislation.
    • For foods of non-animal origin imported from the UK, the EU authorities will be carrying out regular official controls in accordance with the EU legislation. In addition, compliance with certain EU phytosanitary requirements for imports will be required.
    • Organic production certificates issued by UK authorities to operators who sell their organic products in the EU will no longer be valid as of the withdrawal date. In addition, import of organic products from the UK will be subject to special rules.
  • In light of the uncertainties surrounding the content of a possible withdrawal agreement, affected stakeholders are advised to follow closely future developments related to the EU-UK negotiations.  Our colleagues in Brussels are well-positioned to answer any questions you may have regarding these developments.

FDA Recognizes First Accreditation Body Under Accredited Third-Party Certification Program

  • As previously covered on this blog, in November 2015, the U.S. Food and Drug Administration (FDA) finalized The Food Safety Modernization Act (FSMA) rule on Accredited Third-Party Certification that established a program for the accreditation of third-party certification bodies to conduct food safety audits and to certify that foreign food facilities and food produced by such facilities meet applicable FDA food safety requirements.
  • On January 31, 2018, the FDA announced that ANSI-ASQ National Accreditation Board (ANAB) – an organization jointly owned by the American National Standards Institute (ANSI) and the American Society for Quality (ASQ) – became the first accreditation body to receive FDA recognition under the voluntary Accredited Third-Party Certification Program, created by the Food Safety Modernization Act (FSMA). FDA explained that it recognized ANAB for a five-year term because it met the applicable FDA requirements, which were validated through application review and on-site assessment.  Additional information on this development is available in our client alert available here.
  • Keller and Heckman will continue to monitor and provide updates regarding FDA’s implementation of the Accredited Third-Party Certification Program and other FSMA-related issues.