• The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) has regulatory authority over both the import and export of livestock products.  In the import context, APHIS works to ensure that products entering the U.S. meet the Agency’s entry requirements to exclude pests and diseases.
  • In July 2014, USDA published a proposed rule (79 FR 43974) that would have recognized Mexico as a low-risk classical swine fever (CSF) region. Since the rule was published, the World Organization for Animal Health recognized Mexico as CSF-free.  As a result, Mexico’s government requested that APHIS suspend its rulemaking and instead continue evaluating Mexico’s CSF status.  APHIS reopened its evaluation and conducted a site visit in 2015. Based on the 2015 site visit report, along with updated surveillance data and additional information submitted by Mexico’s government, APHIS determined that current conditions support CSF-free recognition for all of Mexico.
  • On August 8, 2017, APHIS published a Notice (82 FR 37043) which proposes to recognize Mexico as free of classical swine fever (CSF).  In announcing the publication of this Notice, APHIS also noted that it will withdraw the 2014 proposed rule that would have recognized Mexico as a low-risk CSF region. Recognizing Mexico as CSF-free could potentially create new opportunities for Mexican pork products in the U.S. market.
  • APHIS will be accepting comments on the Notice for 60 days (or until October 10, 2017) prior to making a final determination on Mexico’s CSF status which will ultimately be published in the Federal Register.
  • Funded by the Canadian Food Inspection Agency (CFIA), University of Guelph researchers have conducted the first-ever Canadian study examining sausage mislabeling. The study examined 100 sausages that were labeled as containing just one ingredient — beef, pork, chicken or turkey.
  • Published on July 31, 2017 in Food Control, the study found cross-species contamination of meat ingredients in 20 percent of sausage samples from grocery stores across the country. Highlights of the study include:
    • The predominant meat species were determined in sausage samples using DNA barcoding.
    • Five turkey sausage samples contained chicken as the predominant species.
    • Contaminant meat species were detected using digital droplet PCR.
    • Undeclared species were detected in beef (6%), chicken (25%), and pork (5%) sausages.
    • Real-time PCR assay revealed that one pork sample contained horse meat.
  • CFIA states that the goal of the study was to explore whether CFIA might be able to employ scientific methods employed by the researchers – such as DNA barcoding and real-time Polymerase Chain Reaction (PCR) assays – in its regulatory practices as it concerns product mislabeling. CFIA says that the scientific tools show promising results. It remains to be seen whether these findings will prompt CFIA to launch a broader study of this issue and, ultimately, whether the CFIA will consider regulatory measures that incorporate such testing to assure that food product labels are truthful and not misleading.
  • As previously covered on this blog, the Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) launched an initiative this past February to streamline and standardize the wording accompanying the date labels on packages to offer greater clarity regarding the quality and safety of products.  The 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.
  • A recent poll by GMA and the Food Policy Action Network found that the current range of variations of date labels such as “best by, use by, sell by, use or freeze by” on food products around the country is problematic for consumers.  Key poll findings include:
    • Nearly 60 percent of Americans have discussed the meaning of date labels on their food
    • 40 percent of adults say they have had disagreements within their household over whether a food product should be kept or thrown away
    • Older Americans are slightly more likely to keep food longer, while younger Americans are more likely to throw food away earlier based on the date label.
    • More men say they are the ones in the household arguing to keep food longer; 64 percent of men make this claim, versus 56 percent of women.
  • Following on these poll findings, GMA’s Director of Sustainability stated that “clarity on product date labeling will reduce confusion . . .  [and] cut food waste.” Broad industry adoption of the voluntary date labeling standard launched by GMA and FMI is expected to occur over time to allow companies flexibility to make the changes in a way that ensures consistency across their product categories.  It remains to be seen if FDA and/or USDA will ultimately choose to issue regulations tracking the date labeling terminology proffered by GMA and FMI.
  • 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. The Common Sense Nutrition Disclosure Act (772/S.261) was introduced in the House by Reps. Cathy McMorris Rodgers (R-WA) and Tony Cárdenas (D-CA) on January 31, 2017, and in the Senate by Sens. Roy Blunt (R-MO) and Angus King (I-ME) on February 1, 2017. See previous blog coverage here.
  • On Thursday, July 27, 2017, The Common Sense Nutrition Disclosure Act advanced out of the House Energy and Commerce Committee. 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.
  • Given the bipartisan support for this bill, to date, combined with the flexibilities afforded to industry under its provisions, this bill stands a good chance of ultimately becoming law. We will continue to monitor developments on this bill as they unfold and report them to you here.
  • 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.).
  • As another part of this program, Health Canada is revising Canada’s Food Guide to provide better guidance for healthy eating.  In the Fall of 2016, Health Canada asked Canadians for input on revisions to Canada’s Food Guide.  Then, they used this information to develop recommendations for healthy eating, and to identify ways to better communicate health information to consumers.  Notably, they excluded industry commissioned reports from consideration.
  • The initial Guiding Principles and Recommendations developed as a result of the public consultation are notable in that they emphasize plant-based sources of protein.  In developing the “Guiding Principles and Recommendations”, the Agency considered that there are many interrelated factors at play when people make choices about their food.  These include access to nutritional options, culture, and the physical and social environment.  The Agency has designed its recommendations to be observable by people in areas throughout Canada, by including more readily accessible products, such as frozen, packaged, and canned foods.  The Agency also considered the potential environmental benefits of shifting towards a diet higher in plant-based foods.
  • Specifically, Health Canada is proposing the following “Guiding Principles and Recommendations”:
    • Guiding Principle 1: A variety of nutritious foods and beverages are the foundations for healthy eating.
      • Under this principle Health Canada recommends regular intake of fruits, vegetables, whole grains, and protein rich foods – especially plant-based sources of protein, including legumes, nuts, seeds, and soy.
      • This shift towards more plant-based foods is focused on getting Canadians to eat more foods rich in fiber, eat less red meat, and to replace many of the saturated fats in the diet with more unsaturated fats.
    • Guiding Principle 2: Processed or prepared foods and beverages high in sodium, sugars, or saturated fat undermine healthy eating.
      • Under this principle Health Canada recommends limiting intake of processed or prepared foods high in sodium, sugar, or saturated fats, as well as beverages high in sugar.
      • This is meant to combat the increasing consumption of processed foods in Canada which contribute at least half of the sugar intake of Canadians, over three quarters of the sodium, and a significant portion of saturated fat.
    • Guiding Principle 3: Knowledge and skills are needed to navigate the complex food environment and support healthy eating.
      • Under this principle Health Canada recommends selecting more nutritious foods when shopping and eating out, planning healthy meals and snacks ahead of time, and sharing meals with friends and family whenever possible.
      • This is meant to decrease reliance on meals of convenience and increase the preparation of meals from scratch.  Health Canada is hoping that as people start to develop the knowledge and skill to select, plan, and prepare their own healthier meals, that it will become more convenient and common for people to do so.
  • The recommendations enumerated above, however, are not final.  Currently, until August 14th, 2017, Health Canada will be taking additional comments on the new healthy eating recommendations before they are formally finalized.
  • As previously reported on this blog, a Cook County Ordinance that imposes a $0.01 per ounce tax on the retail sale of sweetened beverage was temporarily blocked after the Illinois Retail Merchants Association and others filed a lawsuit to block the tax. On July 28, 2017, Cook County Circuit Judge Daniel Kubasiak dissolved the temporary restraining order and dismissed the lawsuit.
  • The tax applies to bottled sweetened beverages, including soda, sports drinks, flavored water, energy drinks, and pre-made sweetened coffee and tea with less than 50% milk content. Infant formula, unsweetened drinks to which a purchaser can add or request that a retailer add sugar at the point or sale, 100% fruit juices, and beverages for medical uses are among the products exempted from the tax.
  • In an article on the Cook County soda tax, Illinois Policy said that the tax makes soda sold in Chicago among the most expensive in the country. As an example, the organization pointed out that that the Chicago soft drink sale tax of $0.12 combined with the Chicago sales tax of $0.41, along with the Cook County sugary drink tax of $1.44, will increase the cost of a 12-pack of 12-ounce cans of soda from $4.00 to $5.97.
  • Cook County expects to receive $200 million annually from the tax. After the lawsuit was dismissed, Cook County Board President Toni Preckwinkle explained in a statement, “The delay in implementing the tax caused by the merchants’ lawsuit forced us to put into motion cost-saving measures to cope with this revenue loss, which currently is at least $17 million.”
  • The Illinois Retail Merchants Association responded to the ruling in a July 28 tweet, stating, “We are disappointed with the judge’s ruling on Cook County’s sweetened beverage tax. We are exploring our legal options.” Stay tuned for further developments concerning beverage taxes imposed by Cook County and other jurisdictions.
  • 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 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.
  • On June 28, 2017, USDA’s Agricultural Marketing Service (AMS) posted a list of 30 questions to obtain stakeholder input to facilitate the drafting of mandatory disclosure requirements to implement the National Bioengineered Food Disclosure Law.  Many of the questions are open-ended in nature and request stakeholder feedback on how to best define certain terms, how to determine if a product requires a GMO label and what on-package symbol should be used to denote GMO ingredients.  See our client alert for a comprehensive review of USDA’s 30 questions.
  • Stakeholder feedback was originally due to USDA by July 17, 2017, but was recently extended to August 25, 2017.
  • Keller and Heckman lawyers stand ready to assist interested parties in submitting comments to provide USDA with expert industry insight on GMO labeling – one of the most controversial areas of food labeling and manufacturing today.
  • On January 19, 2017, USDA’s Food Safety & Inspection Service (FSIS) released a proposed rule to revise its nutrition labeling requirements for meat and poultry products to reflect current scientific research and dietary recommendations. FSIS indicates that the changes parallel FDA’s recently revised nutrition labeling requirements (see our previous blog coverage regarding FDA’s revised nutrition facts requirements here).  On, February 22, 2017, FSIS announced that it had extended the comment period by 30 days, and the comment period finally closed on April 19, 2017.  Notable comments by the meat and poultry industry included a request to remove cholesterol from the label, stearic acid from the saturated fat content and the requirement to label naturally occurring trans fat.
  • Last week, the Trump administration released its first Unified Agenda listing USDA’s nutrition facts rule as inactive.  According to USDA, this means that the rule will not be a priority for at least six months.
  • This latest action follows on the heels of the compliance date for the FDA Nutrition Facts final rule – originally scheduled for July 26, 2018 – being delayed for an indefinite period of time.  Many leading food companies have started to transition their FDA-regulated product labels to the new format required by the FDA Nutrition Facts final rule.  But because USDA has not finalized its nutrition facts rulemaking, USDA regulated products do not bear the new USDA format – except to the extent that manufacturers of USDA-regulated foods are voluntarily using the new FDA format consistent with a USDA notice (from late last year) stating that until the USDA proposed rule is finalized, meat and poultry manufacturers may voluntarily use FDA guidelines on nutrition labeling.
  • The key implication for industry and consumers alike going forward is the potential for inconsistency between nutrition labeling of meat and poultry products and nutrition labeling of FDA-regulated products.  We will continue to monitor developments on this issue as they unfold and report them to you here.
  • As previously covered on this blog, as part of a deal to resume U.S. beef exports to China, the U.S. pledged that it would remove obstacles to importing cooked Chinese poultry meat.  In support of this pledge, on June 16, 2017, USDA’s Food Safety and Inspection Service (FSIS) published a proposed rule (82 FR 27625) amending its inspection regulations to list China as eligible to export poultry products derived from birds slaughtered in that country to the U.S.  Notwithstanding USDA’s recent move to facilitate cooked Chinese chicken imports, China continues to ban U.S. poultry.
  • Yesterday, a bipartisan group of 37 U.S. senators led by Senator Thad Cochran (R-Miss.) and Senator Mark Warner (D-Va.) called on Secretary of Agriculture Sonny Perdue to press for the swift reopening of the Chinese market to U.S. chicken and turkey exports.  In a July 26, 2017 letter to Secretary Perdue, the Senators challenged the ban, instituted by China in 2015 after the detection of a wild duck with Highly Pathogenic Avian Influenza (HPAI).  The ban, which contradicts World Health Organization for Animal Health standards, prevents U.S. poultry products from being exported to Chinese markets.  The letter notes that China has begun an animal audit of the U.S. poultry industry and urges USDA “to remain diligent in seeking final Chinese approval for U.S. poultry’s first successful shipment as quickly as possible.”
  • The restoration of U.S. poultry access to China would represent a financial win for American poultry producers as the Chinese market for American poultry exports – at its peak – stood at $71 million for turkey and $722 million for chicken.  We will continue to monitor developments on this issue as they unfold and report them to you here.