• On September 1, 2025, cultivated meat companies Wild Type and UPSIDE filed suit in the U.S. District Court of the Western District of Texas, arguing that the state’s ban on cultivated meat is unconstitutional.
  • As we previously reported, Texas passed SB 261 in June, which banned the “manufacture, processing, possession, distribution, offer for sale, and sale of cell-cultured protein” starting September 1, 2025.  Indiana, Mississippi, Montana, Nebraska, Alabama, and Florida have passed similar laws.
  • The complaint argues that the law aims to unfairly promote one industry over another, by “stifl[ing] the growth of the cultivated meat industry to protect Texas’ conventional agricultural industry from innovative competition that is exclusively based outside of Texas.”  In a recent press conference, senior attorney of the firm representing the plaintiffs, Paul Sherman, stated that Texas lawmakers “absolutely made no secret” of the intent of the bill to protect conventional agriculture in Texas.
  • The lawsuit alleges the ban is unconstitutional because it violates the Commerce Clause, which prohibits protectionist barriers from out-of-state trade, and the Supremacy Clause, which states that laws enacted under the federal Constitution supersede state law.
  • In 2023, a similar Commerce Clause argument in National Pork Producers Council (NPPC) v. Ross was unsuccessful, where the U.S. Supreme Court concluded that California’s Proposition 12 did not intentionally discriminate against out-of-state pork producers.  It is unclear whether this decision will set a precedent in this case.
  • Keller and Heckman will continue to monitor and relay any developments regarding this suit.
  • Yesterday FDA announced the release of a report with 2022-2024 test data on the declaration of net quantity of contents in imported frozen seafood. 10 of the 28 tested samples (36%) improperly inflated the net quantity of contents to include the weight of added water, glaze, or ice.
  • This practice is known as “short weighting” and is characterized by FDA as a forbidden form of economically motivated adulteration. The adulteration provisions in section 402 of the Food, Drug, and Cosmetic Act typically define violations that could impact the composition of food, while the misbranding provisions in section 403 typically define violations related to deception and mislabeling.  It can be debated whether these instances of short weighting qualify as adulteration or misbranding.  As applicable here, section 402(b) defines adulteration to include the addition of any substance to increase its bulk or weight. In this case, however, FDA acknowledges that the added water glaze helps protect seafood from freezer burn during storage. So, its use seems to be legitimate if the weight of the water/glaze is not included in the net quantity declaration.
  • Violative samples were refused entry and the associated firms and their violative products were placed on Import Alert 99-47, Detention Without Physical Examination of Human Food Products That Appear to be Adulterated for Economic Gain.
  • A bone broth maker was sued in a proposed class action alleging that the company “took advantage of recent trends for high-protein foods by mislabeling the nutrient content of its products.” According to the plaintiffs, Roli Roti Butcher’s Organic Beef Bone Broth was labeled as containing 17 grams of protein per serving. However, testing of the product revealed that it only contains 11.14 grams of protein, about 65 percent of the represented amount.
  • According to the complaint, bone broth has recently been touted as a high-quality source of protein, and the Roli Roti brand has “garnered significant praise because of its high protein content.” Further, on Roli Roti’s website frequently asked questions page, the company states that its “‘proprietary’ method . . . allows it to ‘make sure that every bottle is filled with only the good stuff.’” Thus, the complain alleges, the company is aware of the importance of protein content to consumers but deceives those consumers by selling a product that is underfilled with protein.
  • The complaint also states that around early July 2025, the company updated the product pictures on its website to show a new nutrition label declaring 11 grams of protein; however, as late as August 21, 2025, the company’s Amazon product page still claimed that the bone broth contains 17 grams of protein, and consumers would only know the product contained a lower protein content if they were to scroll to a second image.
  • Under FDA’s nutrition labeling regulations, nutrients such as protein must be present in a product at no less than 80 percent of the value declared on the label. Thus, according to the plaintiffs and based on the allegations above, the bone broth is misbranded and deceptive because it deceives consumers regarding the amount of protein in the product.
  • Keller and Heckman will continue to reports on litigation related to food labeling.
  • On August 26, 2025, The New York City Health Department and the Mayor’s Office of Food Policy announced the release of its updated NYC Food Standards. The updated standards are a part of NYC’s broader Chronic Disease Strategy which targets conditions like diabetes and cardiovascular disease through dietary improvements. The updates standards will take effect on July 1, 2026.
  • The updated standards include:
    • Expanded restrictions on low-and no calorie sweeteners, now applying to all age groups whereas previously it was limited to children under 18;
    • New bans on artificial colors, flour additives, and preservatives; 
    • Elimination of processed meats from all meals served;
    • Increased requirements for whole and minimally processed plant proteins; and
    • Stricter snack guidelines to improve nutritional quality.
  • Specifically, the prohibition applies to aspartame, stevia, sorbitol, FD&C Blue No.1, FD&C Blue No.2, Caramel Color, Citrus Red, Titanium Dioxide, Potassium Bromate, Butylated hydroxyanisole (BHA), and Propylparaben, among others.
  • NYC’s Food Standards were first introduced in 2008 and are now mandated to be updated every three years. The standards apply to meals served by agencies such as the Department of Education, Health and Hospitals, Department of Correction, and Human Resources Administration among others.
  • Keller and Heckman will continue to monitor developments related to municipal nutrition standards and changes to public health policy.
  • On August 26, 2025, the U.S. Food and Drug Administration (FDA) submitted a proposed collection of information to the Office of Management and Budget (OMB) related to the notification process for Generally Recognized as Safe (GRAS) substances. Specifically, the revision incorporates new burden estimates tied to FDA’s 2022 guidance document, Best Practices for Convening a GRAS Panel.
  • Under the Food, Drug & Cosmetic Act, food additives must receive pre-market approval from FDA. However, substances designated as GRAS by qualified experts are exempt from this requirement. Some companies voluntarily use expert panels (groups of independent scientists) to review their GRAS conclusion.
  • FDA has provided updated burden estimates for the use of such panels across three categories: (1) reporting; (2) recordkeeping; and (3) third-party disclosures. Notably, FDA has reduced its estimate for animal food GRAS submissions from 25 to 12 respondents annually, lowering the associated costs by over 2,200 hours. It also decreased the estimated time required to maintain written GRAS panel policies, from 40 hours to 2 hours per year.
  • The proposed revision may signal FDA’s preparation for broader changes to the GRAS framework. As we’ve previously blogged, in March 2025, HHS directed FDA to explore rulemaking that would eliminate the self-affirmed GRAS pathway, requiring all GRAS determinations to be formally submitted to the Agency.
  • Comments should be submitted via Reginfo.gov, referencing OMB Control Number 0910-0342 and FDA Docket Number FDA-2025-N-0123. The deadline for submission is September 25, 2025.
  • Keller and Heckman would be happy to assist in preparing and submitting any comments on behalf of interested stakeholders.
  • A spokesperson for the Centers for Disease Control (CDC) told NBC news that FoodNet, a collaboration between CDC, FDA, USDA, and 10 state health departments, has reduced its surveillance of foodborne pathogens from 8 pathogens to just 2, Salmonella and Shiga toxin-producing E-coli (STEC). Campylobacter, Cyclospora, Listeria, Shigella, Vibrio, and Yersinia are no longer being monitored as of July 1st.
  • Talking points the CDC provided to the Connecticut Public Health Department cited an absence of funding as the reason for the cut.
  • FoodNet is the only federal program monitoring multiple foodborne pathogens and the cuts could make it harder to identify and respond to foodborne illness outbreaks.
  • CDC has not publicly announced the change and the FoodNet webpage has not yet been updated to reflect the change.
  • A federal judge has dismissed a lawsuit claiming that several major food companies aggressively market “highly addictive, ultra-processed foods to children.” According to the judge, the plaintiff did not adequately allege that the companies’ products caused him any harm.
  • The lawsuit alleges that ultra-processed foods (UPF) marketed by the named defendants and other companies are harmful because of their high degree of processing, including addition of many food additives. The plaintiff claimed that he was diagnosed with both type 2 diabetes and non-alcoholic fatty liver disease at 16, attributing both to the consumption of UPF. Further, he alleged that the incidence of such diseases and obesity has dramatically increased since the 1980s due to the consumption of UPF, as we previously blogged.
  • However, according to the judge, the plaintiff dedicated his complaint to the science and marketing of UPF, but “when it comes to allegations regarding Plaintiff himself, the complaint is woefully deficient.” The plaintiff did not allege how often he consumed the defendants’ products, in what amounts, or when; he did not allege when he ate the products in relation to receiving his diagnoses or began experiencing symptoms; and he failed to identify what foods or products he consumed, listing over 100 brands manufactured or sold by the defendants without identifying specific products he consumed within these brands. As a result, the defendants did not have sufficient notice of the claims against them. Overall, according to the judge, there are not enough facts to suggest that the companies’ products are what caused the plaintiff’s harm.
  • The judge did state that “the Court is deeply concerned about the practices used to create and market UPFs, and the deleterious effect UPFs have on children and the American diet.” However, the lawsuit was dismissed in its entirety due to the failure to state a claim upon which relief may be granted.
  • As we blogged earlier this year, FDA is working with USDA and other government agencies to define UPF, which could have a broad impact on regulation, as well as processing and marketing . Keller and Heckman will continue to monitor developments related to UPF.
  • On August 15, 2025, the U.S. Department of Justice (DOJ) in coordination with the National Economic Council, issued a Request for Information (RFI) seeking public input on state laws, regulations, and practices that may significantly and adversely affect the national economy or interstate commerce.
  • The RFI invites comments on the following:
    • Which State laws significantly burden commerce in other States and between States, thus raising costs unnecessarily and harming markets nationwide.
    • Whether the laws identified may be preempted by existing Federal authority and, if so, what authority.
    • Whether there may be Federal legislative or regulatory means for addressing the State laws identified or the burdens they cause.
    • Which Federal agency has the subject-matter expertise to address concerns lawfully within the Federal government’s authority.
  • The RFI is particularly relevant to industries facing a patchwork of state regulations, most notably the food and beverage sector, where over 300 state bills have been introduced this year alone.
  • Comments must be submitted by September 15, 2025, under the Docket No. OLP182 through the Federal rulemaking Portal.
  • Keller and Heckman would be happy to submit comments on behalf of interested stakeholders or assist with drafting comments for submission.
  • On August 6, 2025, Former Commissioner of the U.S. Food and Drug Administration (FDA), David Kessler, submitted a citizen petition calling on FDA to limit refined carbohydrates used in industrial food processing to prevent obesity, diabetes, and cardiovascular disease, and requested the agency take various actions, including revoking the GRAS designations of these ingredients.
  • The petition focuses on 1) refined sweeteners (i.e., corn syrup, corn solids, glucose syrups, dextrose, invert sugar, xylose, maltose, and high fructose corn syrups) and maltodextrin; 2) refined flour and starches subjected to food extrusion technology (i.e., wheat, corn, tapioca, oat and potato flour, and starches that are processed by extraction or similar technologies); and 3) sucrose, refined flours, or starches that are used with emulsifiers (e.g., mono- and diglycerides of fatty acids, DATEM, sodium stearoyl lactylate, polysorbates); dough conditioners and strengtheners (e.g., azodicarbonamide, L-cysteine, calcium peroxide); humectants (e.g., propylene glycol); stabilizers and gums (e.g., carboxymethylcellulose, methylcellulose); or modified starches and fillers (e.g., regelatinized starch, modified food starch, dextrins).
  • The petition makes a dubious distinction in the use of these ingredients, noting “This petition focuses on refined carbohydrates used in industrial food processing … not in home cooking.”
  • The petition claims that refined carbohydrates put people at risk for increased caloric intake, weight gain, fat accumulation in the liver, pancreas, skeletal muscle and heart, and metabolic abnormalities, leading to various chronic diseases.
  • The requested actions in the petition include the following:
    • Stop considering processed refined carbohydrates identified in the petition to be GRAS.
    • Promptly initiate proceedings to revoke any existing GRAS regulation for processed refined carbs used in industrial food processing.
    • Require companies seeking to continue using the ingredients to notify FDA within 12 months of their intent to file a food additive petition, and to file such petition within 24 months.
    • With revocation of GRAS status, announce that the ingredients are legally classified as food additives and that absent a regulation allowing for their safe use, it is illegal to continue using them.
    • Remove the products from commerce unless they are eventually covered by a food additive petition.
    • Work with industry to reduce the use of processed refined carbs as quickly as possible.
  • The petition cites FDA’s approach to partially hydrogenated oils (PHOs) in 2015, when it revoked their GRAS status, prompting the submission of a food additive petition that was ultimately denied.  However, the same scientific consensus and legal standards with respect to PHO’s have not been achieved here.
  • Keller and Heckman will continue to monitor FDA’s review of the Kessler petition and relay any developments.

  • On August 19, FDA announced updates to its List of Select Chemicals in the Food Supply Under FDA Review. The list is part of FDA’s plan to conduct post-market reviews of chemicals in food. Note that the excel spreadsheet on the list includes additional information that is not available on the main page such as the date the review was initiated. (see “Export Excel” button on linked page)
  • The new chemicals officially added to the list are:
    • The antioxidants butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT)
    • Azodicarbonamide (ADA), approved as a bleaching agent in cereal flour and as a dough conditioner in bread baking
    • Synthetic color additives FD&C Blue No.1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.
    • Opiate alkaloids on poppy seeds. Earlier this year, FDA requested information on agricultural, production, and supply chain practices which may contribute to the presence of these opiate alkaloids.
  • FDA’s announcement also notes that (1) it will seek data on BHA, BHT, and ADA to facilitate its post-market assessments, (2) it has separated lead as an impurity in food contact substances from lead as an environmental contaminant, and (3) that it is taking steps to expedite its review of chemicals included in previous updates, including phthalates, propylparaben, and titanium dioxide.