• Missouri Attorney General Josh Hawley announced that 12 states have joined Missouri in a lawsuit challenging a California law requiring any eggs sold in the state to come from hens that have space to stretch out in their cages. The lawsuit was filed on December 4 to the U.S. Supreme Court.
  • In 2008, Californians approved, by a 63% vote, the Prevention of Farm Animal Cruelty Act, which requires that chickens and certain other animals be able to turn around freely, lie down, stand up, and fully extend their limbs. The act became effective in 2015. After California egg farmers complained that they would be at a competitive disadvantage with farmers in other states, the law was expanded in 2010 to ban the sale of eggs from any hens that weren’t raised in compliance with California’s standards (Los Angeles Times).
  • Missouri and several other states previously filed suit challenging the California law but, in 2016, the Ninth Circuit Court of Appeals ruled that they lacked standing to pursue their claims. The Dec. 4 lawsuit claims that California’s regulations violate both a federal law prohibiting states from imposing their own standards on eggs produced in other states, and the Commerce Clause of the U.S. Constitution, which gives Congress exclusive authority to regulate commerce among and between states, explains Hawley in a press release. He added that the suit includes an economic analysis with new data estimating California’s egg law has cost consumers nationwide up to $350 million annually due to higher egg prices.
  • The 12 states that joined Missouri in filing the current lawsuit are: Alabama, Arkansas, Indiana, Iowa, Louisiana, Nebraska, Nevada, North Dakota, Oklahoma, Texas, Utah, and Wisconsin.
  • Pursuant to its mandate under the Food and Drugs Act, Health Canada is responsible for setting safety and nutritional quality standards for all foods sold in Canada.  Health Canada achieves this goal by setting standards under the Food and Drug Regulations which are enforced by the Canadian Food Inspection Agency.
  • On October 24, 2016, Canada’s Minister of health announced that Canada’s food labeling requirements would be  revised as a part of the Healthy Eating Strategy for Canada.  This program has brought changes to labeling and disclosure requirements such as what needs to be disclosed on a food product’s label and how that information is to be conveyed (e.g. increased contrast between ingredients and background, mandatory font size requirements, etc.).
  • One of the key initiatives under the Strategy involves Front-of-Pack (FOP) labeling. Health Canada states that while existing nutrition labeling tools are very useful to many consumers when making food purchasing decisions, some consumers find the information provided too complex to understand and use. To help address this, Health Canada is proposing to introduce FOP labeling requirements on prepackaged foods high in sodium, sugars and saturated fat.   The objectives of FOP labeling are to:
    • Provide quick and easy guidance to encourage consumers to make informed choices about foods in relation to sodium, sugars and saturated fat; and
    • Encourage the availability of foods lower in these nutrients, thereby reducing risks to health.
  • A November 22, 2017 USDA FAS GAINS Report indicates that Canada has moved on to the next step of implementing a new mandate that will require food manufacturers to use FOP symbols to warn consumers about high levels of sugars, sodium or saturated fat with the label design process slated to be well under way shortly (bidding on a graphic design contract for the labels just closed in October).  Health Canada is planning to implement FOP labeling requirements in 2021, alongside previously approved changes to nutritional labeling.
  • It remains to be seen how the new requirements will mesh with the widely accepted Facts Up Front voluntary labeling initiative spearheaded by the Grocery Manufacturing Association (GMA) and the Food Manufacturing Institute (FMI).
  • As previously reported on this blog, legislation requiring labeling of genetically modified (GM) foods and food ingredients was signed into law on July 29, 2016.  This law, entitled the National Bioengineered Food Disclosure Standard, directs the U.S. Department of Agriculture (USDA) to develop regulations and standards to create mandatory disclosure requirements for bio-engineered foods by July 2018.  Under the new law, food companies would have three options to disclose GMO ingredients: the use of on-package text, a USDA-created symbol, or an internet link — i.e., a QR code printed on the package that directs customers to GMO information.  As part of the development of mandatory disclosure requirements for bioengineered foods, USDA was required to complete a study to identify potential technological challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital disclosure methods.  This study was slated to be released in July 2017.  As of late August 2017, the study had not been released and so the Center for Food Safety (CFS) sued USDA to release the study.  On September 6, 2017, USDA released the mandated study.
  • This week, CFS dropped its lawsuit indicating that it has obtained a promise from the Administration to accept public comments on the consumer study for purposes of developing mandatory disclosure requirements for bio-engineered foods.
  • We will continue to monitor developments on the National Bioengineered Food Disclosure Standard and report them to you here.
  • Enacted in 2010, the Healthy, Hunger-Free Kids Act (HHFKA) set rigid nutrition standards for schools and paved the way for the subsequent implementation of school meal rules that many in the industry argue have limited the flexibility of school foodservice providers, led to increased food waste in school cafeterias, and resulted in declining participation in the National School Lunch and Breakfast Programs.  USDA’s Final Rule: Nutrition Standards in the National School Lunch and School Breakfast Programs, for example, imposes stringent sodium limits and whole grain and dairy requirements. Recently, there have been increasing calls to scale back on these requirements.  Some school meal program operators have experienced challenges with the whole grain-rich requirement and the sodium limits.
  • To address these challenges, USDA took administrative steps, such as allowing enriched pasta exemptions for SYs 2014-2015 and 2015-2016, to provide flexibilities and ease the transition to the updated standards. Congress recognized the challenges as well, and, through Section 751 of the Consolidated and Further Continuing Appropriations Act, 2015 ( L. 113-235), expanded the pasta flexibility to include other grain products.
  • Today, the U.S. Department of Agriculture (USDA) published an interim final rule titled the “School Meal Flexibility Rule” which aims to provide greater flexibility in nutrition requirements for school meal programs in order to make food choices both healthful and appealing to students (82 FR 56703). The rule provides school meal plan operators the option to provide flavored, low-fat (1 percent) milk and grants exemptions in 2018-19 for schools that experience challenges obtaining whole grain-rich products acceptable to students. It also affords schools and industry additional time to reduce sodium levels in school meals, effectively permitting schools that meet the current Sodium Target 1 limit to be considered compliant for 2018-2019 instead of being required to further restrict sodium levels.
  • USDA Secretary of Agriculture Sonny Perdue said the rule reflects USDA’s commitment – articulated in a May 2017 proclamation – to work with program operators, school nutrition professionals, industry, and other stakeholders to develop forward-thinking strategies to ensure school nutrition standards are both healthful and practical.
  • The advancement of this interim final rule makes clear that USDA is serious about moving towards increased flexibility when it comes to school meal program nutrition requirements, with the complete rolling back of the previous administration’s school nutrition requirements a possibility.
  • Last week, Russia’s Rosselkhoznador, the Federal Service for Veterinary and Phytosanitary Surveillance, announced that it would temporarily ban pork imports from Brazil beginning on December 1, 2017.  This announcement comes after the feed additive ractopamine was identified in some shipments.
  • Brazilian authorities have promised to conduct an internal investigation into the matter, and Brazilian and Russian authorities are expected to reach a swift agreement to lift the ban because Russia “still depends on Brazilian meats.”
  • The Russian ban comes after a year in which Brazilian exports of meat products came under severe scrutiny following a bribery scandal.  As previously covered on this blog, earlier this year Brazilian federal police raided several meat producers for allegedly doling out bribes to inspectors to certify meat that was either rotten or tainted with Salmonella.  The U.S. is currently banning imports of fresh beef from Brazil due to recurring concerns about the safety of those products, but currently permits the importation of Brazilian pork subject to certain restrictions. It remains to be seen whether or to what extent the recently announced Russian ban will influence the U.S. or other jurisdictions’ decision to continue importing Brazilian pork products.
  • Are cotton farmers and ginners subject to FDA’s Food Safety Modernization Act (FSMA)?  If you are a cotton ginner that is not a farm the answer is currently yes. FDA is currently exploring the extent to which cotton ginners should be covered by FSMA. Cotton farmers and ginners, of course, produce the fabrics that we use every day, but they also produce food. After being separated from fibers in a process called ginning, cotton seeds and cotton plant parts are frequently used to feed livestock. Cotton seeds may also be further processed into cottonseed oil and cottonseed meal for animal food.  Because products derived from ginning enter the American food supply, the cotton industry has raised concerns about the impact of the new FSMA requirements on cotton ginners.
  • As background, cotton ginning has traditionally fallen under the general food adulteration provisions of the Federal Food, Drug, and Cosmetic Act.  With the implementation of FSMA, certain operations are now also subject to the FSMA-mandated preventive controls requirements, which applies to manufacturing facilities rather than farms. Most cotton ginning is done by farms, whose ginning operations do not fall under the new requirements.  But cotton gins that are not part of a farm are considered manufacturers subject to the preventive controls requirements, which include a hazard analysis and the implementation of controls to minimize hazards.
  • In August 2016, FDA extended the compliance date for cotton ginners subject to the Preventive Controls for Animal Food rule to allow for additional time to consider how best FSMA should be tailored to cotton ginners (81 FR 57784). Under the extension, regular businesses have until January 28, 2019 to comply, small business until January 27, 2020 and very small business until January 26, 2021.  In the meantime, to better understand industry’s concerns, FDA officials recently traveled to northern Alabama to visit a cotton farm, ginning operation and a cotton warehouse.  In a recent FDA blog post, Dr. Stephen Ostroff, FDA’s Deputy Commissioner for Foods and Veterinary Medicine, indicated that the Agency wishes to further engage stakeholders “in pursuit of a solution that works for industry while protecting public health.”
  • China announced tariff cuts on 187 products—including baby powdered milk, avocados and mineral water—effective December 1, 2017. (See Financial Times (subscription required) and S. News.) The import tariffs will average 7.7%, down from the current 17.3%. In addition to foods, the reduced tariffs will impact selected health supplements, pharmaceuticals, clothing items, shoes and other consumer goods.
  • The reductions in tariffs are being made in response to increased demand for quality goods that cannot currently be met domestically, explained China’s Finance Ministry in making the announcement. Additional benefits from the lower tariffs, suggested by Lu Zhengwei, an Economist with Industrial Bank in Shanghai, include consumers will be more likely to buy foreign goods from Chinese retailers instead of purchasing them while traveling abroad, which also could help generate jobs in China.
  • China faces pressure from the United States and other trading partners to allow better access to its growing markets. As reported on this blog in June, the Certification and Accreditation Administration of the People’s Republic of China (CNCA) and the U.S. Food and Drug Administration (FDA) signed a Memorandum of Understanding (MOU) that formally established a registration process for U.S. food manufacturers that export milk and milk products, seafood, infant formula, and/or formula for young children to China. The U.S. Dairy Export Council reported that the MOU will increase access to China for more than 200 U.S. dairy exporters in the short-term and sets the stage for additional American companies to tap into the lucrative Chinese market going forward.
  • China reported a $510 billion global trade surplus last year. The tariff reductions to occur December 1, are relatively small and it is unclear how they will affect China’s trade balance.
  • As previously covered on this blog, on April 6, 2016, FDA published a final rule to implement sanitary food transportation requirements under the FDA Food Safety Modernization Act (FSMA).  Click here for a complete copy of the final rule.  Click here for an FDA fact sheet summarizing the final rule, and click here for our summary of the rule and its implications for entities in the food industry.  In short, the final rule establishes sanitary transportation practices for covered entities addressing: (1) vehicles and transportation equipment; (2) transportation operations; (3) training; (4) records; and (5) waivers. The compliance date for most companies was April 2017.  Small businesses have until April 2018 to comply.
  • On November 21, 2017, FDA announced the availability of a Small Entity Compliance Guide (SECG) to help small businesses understand the requirements of the Final Rule on the Sanitary Transportation of Human and Animal Food (Sanitary Transportation Rule). Small businesses have until April 6, 2018, to comply with the rule.
  • The SECG provides descriptions of the rule requirements in a question and answer format that includes information on topics such as training and record keeping. Comments may be submitted to FDA at any time. Instructions on how to submit comments are available in the Federal Register Notice available here (82 FR 55503).

The Daily Intake will return on Monday, November 27.  We extend our best wishes to those of you celebrating the Thanksgiving holiday.

  • Washington State Senator Kevin Ranker (D-Orcas Island) plans on proposing legislation in the upcoming session to ban Atlantic salmon net-pen farming, reports the Seattle Times. The legislation is in response to an August 2017 incident where 100,000 fish escaped into Puget Sound from a net-pen farm. The Washington Department of Ecology defines Net-Pen finfish aquaculture as the practice of raising fish in an underwater net that serves as a pen.
  • The salmon escaped due to a failed net-pen structure owned by Cooke Aquaculture, a multi-billion dollar, privately held corporation based in Canada. The Washington Department of Natural Resources manages the land on which the net-pen farm is located and has a tenant contract with Cooke Aquaculture. Sen. Ranker’s bill would allow the leases for eight existing Atlantic net-pen farms in Washington to expire in 2025 but would not allow any new permits to be issued or existing ones to be renewed.
  • Also in response to the August incident, the Wild Fish Conservancy (WFC) filed a citizen suit against Cooke under the Clean Water Act. WFC explained in a press release, “These discharges represent blatantly negligent violations of the National Pollutant Discharge Elimination System (NPDES) permits under which Cooke Aquaculture’s Atlantic salmon net pens currently operate.”
  • As previously reported on this blog, legislation requiring labeling of genetically modified (GM) foods and food ingredients was signed into law on July 29, 2016.  This law, entitled the National Bioengineered Food Disclosure Standard, directs the U.S. Department of Agriculture (USDA) to develop regulations and standards to create mandatory disclosure requirements for bio-engineered foods by July 2018.  Under the new law, food companies would have three options to disclose GMO ingredients: the use of on-package text, a USDA-created symbol, or an internet link — i.e., a QR code printed on the package that directs customers to GMO information.
  • Earlier this month, eleven senators, led by Senator Jeff Merkley (D-Oregon), wrote a letter to USDA Secretary Sonny Perdue recommending that “bioengineered ingredient disclosures should consist of clearly worded, on-package text labels indicating the presence of [ ] ingredients.” The senators further stated that “QR codes or other electronic disclosure methods should not be used until broadband internet access and smartphone adoption are near universal, and no longer present obstacles to consumer access to bioengineered ingredient information.”
  • As the law specifically authorizes the use of on-package text, a USDA-created symbol, or an internet link to covey the presence of GM ingredients to consumers, it remains to be seen what impact, if any, the senators’ letter will have on the forthcoming mandatory disclosure requirements. We will continue to monitor developments on the National Bioengineered Food Disclosure Standard and report them to you here.