• Officials in Florida are urging a federal judge to dismiss UPSIDE Food’s (UPSIDE) constitutional challenge to the state’s cultivated meat ban, SB 1084, arguing that the company’s claim is vague and unsubstantiated. UPSIDE claims that the ban was enacted for discriminatory purposes in violation of the Dormant Commer Clause.
  • The company’s complaint cites to public comments made by Florida Governor Ron DeSantis and Florida Ag Commissioner Wilton Simpson that claimed the out-of-state cultivated meat industry threatens Florida’s in-state conventional meat and agricultural industries. UPSIDE argues that these comments demonstrate Florida’s sole intent in enacting the ban was to protect the state’s cattle industry.
  • While the court previously denied UPSIDE’s motion for a preliminary injunction and rejected its claim that the Poultry Products Inspection Act preempted the law, as we reported last year, it allowed the company to proceed with its constitutional challenges to the law.
  • Florida’s SB 1084, the nation’s first state-wide cultivated meat ban, was enacted in May 2024. The law defines cultivated meat as “any meat or food product produced from cultured animal cells” and makes it unlawful for any manufacturer to sell, hold, or distribute cultivated meat in Florida.
  • UPSIDE received federal approval from the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) to sell a cultivated chicken product in 2022.
  • Keller and Heckman will continue to monitor and relay developments in this case.

  • It has been reported that a coalition of more than 100 groups, including food and agriculture groups, school districts, food service professionals, and nutrition experts wrote a letter to USDA urging it to classify pulse-based pastas as meat alternatives in the Department’s Child Nutrition Programs.   
  • The Child Nutrition Programs includes detailed meal pattern requirements, including minimum amounts and types of foods, that must be offered for reimbursable meals. These vary by program and meal, but many require a meat/meat alternate component, which currently cannot be satisfied by pulse pastas. The coalition argues that pulse-based pastas are packed with nutrients, including protein, and that the change would promote their use and is consistent with the updated dietary guidelines which call for nutrient-dense protein foods to be prioritized.  
  • The Coalition also urged USDA to update the list of creditable ingredients in its Food Buying Guide to include pulse flour products to make them more accessible to participating programs.
  • The coalition consists of various groups including manufacturers and trade associations. In a policy positions paper, pulse trade group USA Pulse has called for legislation supporting the increased use of pulse crops, including foods like soybeans, lentils, and legumes, in school meal programs. USA Pulse also calls for laws that allow pureed pulses and pulse-derived ingredients in federally reimbursable meals.
  • Keller and Heckman will continue to monitor food industry developments.

  • On June 29, 2026, FDA’s Human Foods Program (HFP) released its updated 2026 guidance agenda, which includes priority topics for HFP guidance documents. Subjects of particular interest include:
    • Caffeine content labeling in foods and beverages;
    • Questions and answers regarding the use of “healthy” claims;
    • Action levels for cadmium and inorganic arsenic in food for babies and young children;
    • Fruit juice and vegetable juice as color additives in food;
    • Identity and safety information about new dietary ingredients (NDIs); and
    • Multiple guidances to reduce chemical and microbiological hazards in food
  • While guidance documents do not impose legally enforceable requirements, they represent FDA’s current thinking and interpretation on a specific topic that the industry can use as practical guidance.
  • FDA is accepting comments on the proposed topics at www.regulations.gov, using Docket FDA-2022-D-2088. Keller and Heckman will be happy to assist in drafting comments on behalf of interested companies.

  • On June 25, 2026, the USDA Agricultural Marketing Service (AMS) posted a final notice on its rulemaking to revise orange juice grading standards. AMS addressed comments, but stated that it will publish the changes as provided in the interim final notice, released in November, 2025.
  • As we have previously blogged, FDA released a proposed rule to lower the required minimum Brix content in August, 2025. Then-FDA Commissioner Marty Makary spoke about the rule in a video with US Secretary of Agriculture, Brooke Rollins. Makary said that “for years, we’ve been wasting beautiful American oranges simply due to an outdated regulation.”
  • Later, on November 18, 2025, USDA issued an interim final rule revising its grading system and deferring to FDA’s standard of identity (SOI) for Grade B pasteurized orange juice. The revisions took effect immediately, but USDA opened a 60-day comment period.
  • In its final notice, USDA addressed each of the five comments it received. Three expressed support for revising the Grade B Brix allowances, and one “was not responsive to the action in the interim final notice.” The fifth comment expressed concern over how revising these standards would impact the taste or nutritional quality of orange juice products. USDA responded that, according to FDA, these changes would have minimal impacts on taste or nutritional value.
  • AMS plans to publish the changes at its grades and standards webpage. Instead of providing a Brix value of its own, AMS will now direct readers to FDA’s standards in 21 C.F.R. 146.140(a).
  • Keller and Heckman will continue to monitor USDA developments.

  • On June 11, 2026, the Delaware House of Representatives passed HS1 for HB394.
  • Under the bill, the Division of Public Health would be required to create and provide signage for retailers selling energy drinks or caffeinated dietary supplements. The signage must state that “energy drinks and caffeinated dietary supplements are not recommended for children, individuals sensitive to caffeine, and individuals who are pregnant or nursing.” Notably, the bill encourages, but does not require, retailers to display the signage next to the energy drinks and caffeinated dietary supplements.
  • This bill is a modification of earlier versions, which would have required retailers to display signage in a publicly visible location next to energy drinks and caffeinated dietary supplements. The original bill had stricter provisions, prohibiting retailers from selling these products to minors and requiring individuals whose age was in question to present a valid form of identification.
  • Delaware’s HS1 for HB394 reflects a broader trend of states adopting legislation that mandates warning signage in retail settings for foods and beverages containing caffeine. For example, in April, Pennsylvania introduced HB2377, which would require retail food facilities to “clearly and conspicuously display a disclosure” for beverages on the menu containing at least 80 milligrams of caffeine per serving.
  • Keller and Heckman will continue to monitor state caffeine warning bills.

  • On June 22, 2026, the United States District Court for the District of Columbia  vacated Supplemental Nutrition Assistance Program (SNAP) waivers that USDA had granted to Colorado, Iowa, Nebraska, Tennessee, and West Virginia. The waivers had permitted the states to exclude certain foods deemed to be unhealthy such as soft drinks and candy from eligibility for purchase under the SNAP program.
  • SNAP provides federal funds to low-income households and is administered by USDA and state agencies. The uniform eligibility standards are determined at the federal level. All foods for human consumption except alcoholic beverages and hot foods prepared for immediate consumption are eligible under federal law. (See 7 USC 2012(k) definition of “food” and 7 CFR 271.2 definition of “eligible food”).
  • The Court held that USDA’s waivers improperly waived the statutory definition of “food.” Furthermore, the Court held that USDA improperly sidestepped notice requirements by asserting, without support, that the waivers would not have a significant impact on the public.  
  • The ruling only addressed the five state waivers that were challenged by Plaintiffs. However, USDA has granted eighteen similar waivers, and the Court’s reasoning seems equally applicable to them.
  • This holding is a snag for the Make America Healthy Again MAHA movement, which has sought to allow states to restrict “unhealthy items” from purchase with SNAP benefits.
  • Keller & Heckman will continue to monitor USDA developments.
  • On June 2, 2026, the New York Legislature advanced its bill for uniform date labels, S7618/A7291, to Governor Kathy Hochul for final consideration.
  • The bill standardizes date labeling for food products by mandating the terms “Use By” or “Use By or Freeze By” to indicate safety-based dates and “Best if Used By” or “Best if Used or Frozen By” to indicate quality-based dates. The measure largely mirrors California’s AB 660.
  • For smaller food items, the bill permits abbreviated labels in the form of “UB” and “BB.”  The bill also prohibits products using “sell by” dates.
  • The bill exempts certain products from the date labeling requirements. For example, infant formula and alcoholic beverages are not subject to this requirement, and wine and distilled spirit-based products may include labels indicating the date the product was manufactured or bottled.
  • If signed by the governor, the effective date of this bill will be July 1, 2028.
  • Keller and Heckman will continue to monitor state food labeling requirements.
  • On June 18, 2026, FDA updated its webpage on per- and polyfluoroalkyl substances (PFAS). The webpage outlines the efforts FDA has made to understand and mitigate the risks of PFAS in food while explaining some specific actions FDA plans to take.
  • In the updated webpage, FDA now states that one of its goals is to regulate PFAS levels in bottled water under its authority from the Federal Food, Drug, and Cosmetic Act (FFDCA). Under the FFDCA, FDA may set allowable levels for contaminants in bottled water when EPA sets levels for those same contaminants in drinking water. EPA released a PFAS National Primary Drinking Water Regulation in April 2024, and recently proposed to amend this regulation in May, 2026.
  • This update also notes FDA’s concerns relating to potential PFAS contamination in seafood. FDA is assessing data and determining risk management actions for seafood products after an import alert issued for imported clams contaminated with PFOA. According to FDA, adding firms to an import alert will help reduce PFAS exposure across the food supply. The Agency’s testing under the Total Dietary Study (TDS) found that over 95% of tested fresh and processed foods were PFAS-free while 69% of tested seafood contained PFAS.
  • Additionally, FDA referred to test results for PFAS and other contaminants in infant formula. The Agency will continue researching this category and plans to eventually establish action levels for infant formula contaminants.
  • FDA continues research to identify new types of PFAS in foods through high resolution mass spectrometry (HRMS).
  • Keller & Heckman will continue to monitor FDA updates.
  • On June 11, 2026, Consumer Reports, a nonprofit consumer advocacy group, sent a letter to the United States Department of Agriculture (USDA), requesting the release of information about salmonella testing methods for certain chicken products the agency once determined as adequate, but now says are unsatisfactory due to high false-positive rates, especially at low levels of contamination.
  • Previously, in 2024, USDA’s Food Safety and Inspection Service (FSIS) initiated efforts to establish enforceable product standards for Salmonella in poultry products, including not-ready-to-eat (NRTE) breaded stuffed chicken, by setting a limit of 1 Colony Forming Units per gram (1 CFU/g) of Salmonella in the source material used for producing the chicken products.
  • However, FSIS delayed further verification sampling stating in December 2025 that “current available test methods have accuracy limitations and have resulted in finding false positives, especially at low levels of contamination.” According to Consumer Reports, “this assertion is troubling,” as FSIS previously stated that validated, accurate test methods already exist that detect Salmonella at the regulatory threshold, such as the BioMerieux GENE-UP QUANT Salmonella Test Kit.
  • Consumer Reports is now asking USDA to release data that supports the determination that there are inaccuracies associated with the testing methods, with the group alleging that further delays could allow potentially contaminated foods to remain on the market longer, increasing the risk of outbreaks. As of yet, USDA has not published a formal response to the letter.
  • On June 13, 2026, a kratom drink maker filed an appeal (Law360 subscription required) from the denial of a motion for preliminary injunction, arguing that Utah’s law that bans mixing kratom with any “nonkratom substance” is preempted by federal law.
  • The law, which went into effect on May 6, 2026, prohibits kratom processors from selling or distributing any kratom product that is not pure leaf kratom. The law defines “pure leaf kratom” as a kratom product that is not mixed or packed with a nonkratom substance unless that substance is an inert encapsulating agent.
  • The plaintiffs argue that this requirement directly contradicts federal good manufacturing practices (GMPs), which require botanicals, such as kratom, used as a dietary supplement, to be free of dangerous pathogens. To meet this standard, the industry has relied on washing kratom leaves with heated chlorinated water which kills virtually all bacteria.
  • However, according to the plaintiffs, Utah’s law would prohibit the use of this technique because chlorinated water meets the definition of a non-kratom substance, meaning kratom producers would not be able to sell kratom products without either violating federal law or state law.
  • Keller and Heckman will continue to monitor litigation related to kratom products.