• Members of the food and dietary supplement industries were among those who responded to a March 9, 2017 request from the U.S. Department of Commerce (DOC) for input on the impact of “Burdensome Federal Regulations and Construction Permitting Process on Domestic Manufacturing.” Comments were due by March 31, 2017. Some of the suggestions from the food and dietary supplement companies and associations are provided below.
    • The American Herbal Products Association (AHPA) said that the definition for “produce” in FSMA’s Produce Safety Rule was too broad by including parts of plants not usually considered produce. Another concern with FSMA, suggested the association, was that FDA significantly expanded the scope of “processed food” to include thousands of items that previously were considered “raw agricultural commodities.” As a result, AHPA claimed that many farm operations will be transformed into “food manufacturers” that are subject to facility registration and good manufacturing practices for food. Finally, AHPA called for the revised New Dietary Ingredient (NDI) draft guidance published in 2016 to be significantly revised or immediately withdraw.
    • Knouse Foods Cooperative, Inc. suggested that FDA and USDA should work together to merge the compliance dates for the Nutrition Facts Panel (NFP) changes and the mandatory GMO disclosure so that manufacturers will only need to make one label change. The company also requested that the FSMA “Food Defense Rule” and “Produce Safety Rule” (especially the agricultural water standards requirement) be repealed. (As noted in our March 21, 2017 blog, FDA has announced that it may simplify the Produce Safety Rule’s agricultural water standards.)
    • The International Dairy Foods Association (IDFA) also commented on the compliance date for the Nutrition Facts Panel, suggesting that it should be extended from July 29, 2018 to May 2021. With respect to FSMA, IDFA suggested that FDA delay the compliance dates for the “Food Defense Rule” until the agency can revise the regulation “to provide for more flexibility and greater focus on risk-based methods of preventing intentional adulteration of the food system.” Other recommendation from IDFA dealt with sodium reduction targets and some of the dairy standards of identity.
  • As we reported on this blog last week, the dairy industry also requested a delay in implementation of the Nutrition Facts Rule at a House Agriculture Committing hearing on March 22. We will continue to follow any possible reduction in regulatory burdens and report on them here.
  • 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 as of December 21, 2015.
  • Later today, the Colorado General Assembly’s House Agriculture, Livestock & Natural Resources Committee is slated to consider reinstating COOL for beef products sold at retail stores in that state. The Beef Country of Origin Retail Placard bill, HB17-1234 (introduced by State Representative Kimmi Lewis and State Senator Vicki Marble) would reinstate country of origin information for beef sold in Colorado by requiring a placard to be placed next to beef sold in retail stores.  The placard would be required to denote “U.S.A. Beef” when the beef is exclusively from animals born, raised and slaughtered in the United States.  If the beef is of foreign origin, the placard must state the name of the foreign country or countries from where it originated.
  • Colorado’s COOL efforts follows on the heels of failed state-level efforts in South Dakota and Wyoming to reinstate COOL.  It remains to be seen how Colorado’s COOL efforts will fare.
  • As previously covered on this blog, Brazilian federal police raided several meat producers earlier this month for allegedly doling out bribes to inspectors to certify meat that was either rotten or tainted with Salmonella. A number of jurisdictions – including China, Chile, Japan, Mexico, Hong Kong, South Africa and the European Union – responded by halting the importation of Brazilian meat partially or completely. Considering that meat and poultry exports are a key element of Brazil’s economy – Brazil is responsible for an estimated 20 percent of the world’s red-meat exports and 40 percent of its chicken exports – Brazilian meat companies have been making every effort to regain access to these markets.
  • In recent days, Brazilian meat companies have succeeded at getting their products back into some of their most important markets, including Hong Kong which accounted for nearly $718 million in purchases in 2016.  China, Chile, South Korea, and Egypt have also already lifted temporary bans on Brazilian meat over the past several days.  The European Union continues to maintain a partial ban on products from the 21 meatpacking plants under investigation.  The U.S. has not issued a ban on Brazilian meat imports, but is testing all beef from Brazil for pathogens.
  • We will continue to monitor developments on this issue as they unfold.
  • As previously covered on this blog, in May 2016, FDA issued final rules to implement changes to the nutrition and dietary supplement labeling and serving size regulations. Mandatory compliance with the new nutrition labeling requirements for food products that are initially introduced into interstate commerce is currently slated for July 26, 2018 (or July 26, 2019 for manufacturers with less than $10 million in annual food sales).  As the compliance deadline steadily approaches, some in the industry have sought to delay the rule’s implementation.
  • Most recently, during a March 22, 2017 House Agriculture Committee hearing, the Presidents and CEOs of the National Milk Producers Federation (NMPF) and the International Dairy Foods Association (IDFA) testified that the extension would obviate the need to change labels twice – once in 2018 to comply with FDA’s new requirements and a second time in 2021 when USDA’s GMO labeling disclosure requirements are expected to come into effect.  Representative Rodney Davis (Ill.) expressed his support for extending the deadline for compliance with FDA’s new nutrition facts and serving size requirements.
  • Given that many in the industry have started down the path of compliance with the new requirements, it is not immediately clear that implementation of the rule will be delayed, but with a new administration at the helm, this is certainly a possibility.  We will continue to keep a close eye on any developments in this regard and report them to you here.
  • U.S. beef has been denied access to China since 2003.  Last fall, China announced that it had lifted its ban on imports of U.S. beef, but attempts since then to negotiate the technical terms of access have faltered and so American beef producers are effectively blocked from selling any U.S. beef to Chinese consumers.
  • On March 27, 2017, the National Cattlemen’s Beef Association sent a coalition letter to President Donald Trump, urging him to discuss the restoration of U.S. beef access to China when he meets with Chinese President Xi Jinping next month.
  • As the Chinese market represents the largest foreign market for American beef exports – at an estimated $2.6 billion – we expect the American beef industry to continue pressing for the restoration of U.S. beef access to China.  We will continue to monitor any developments on these efforts as they unfold.
  • Following on the heels of a study by the Silent Spring Institute suggesting that fast food paper and paperboard may contain poly or perfluoroalkyl substances (PFAS) and that PFAS may pose safety or environmental concerns, California Assemblymember Phil Ting (D-San Francisco) has introduced a bill that would “prohibit a food provider from serving, selling, offering for sale, or offering for promotional purposes prepared food or fast food in, on, or with take-out food service ware or packaging that contains a fluorinated chemical.”
  • The definition of fluorinated chemical is much broader than PFAS.  The bill, AB-958, defines a fluorinated chemical as an organic or inorganic substance that contains at least one fluorine atom, including, but not limited to, a perfluorinated or polyfluorinated alkyl substance, fluorinated polymer, or fluorotelomer-based chemical.
  • The bill has been referred to California State Assembly’s Committee on Environmental Safety and Toxic Materials.  Should the bill pass, it could greatly impact the food service industry’s ability to use paper packaging materials.  We are monitoring the bill’s progress.
  • Created in 2011, The Interagency Food Safety Analytics Collaboration (IFSAC) is a partnership of three federal agencies—the Centers for Disease Control and Prevention (CDC), the U.S. Food and Drug Administration (FDA), and the Food Safety and Inspection Service of the United States Department of Agriculture (FSIS). IFSAC aims to enhance the coordination of federal food safety analytic efforts and address cross-cutting priorities for food safety data collection, analysis, and use.  In particular, IFSAC’s projects and studies seek to identify foods that are important sources of human illness and focuses its analytic efforts on four priority pathogens: Salmonella, Escherichia coli (E. coli) O157:H7, Listeria monocytogenes (Lm), and Campylobacter.  IFSAC’s success is tied, in large measure, to its work with key partners, including federal and state public health and regulatory agencies and industry stakeholders.
  • On March 24, 2017, FDA CDC, and FSIS issued a new Strategic Plan for 2017-2021 as part of IFSAC.  Under the new strategic plan, IFSAC intends to focus on continuing to improve estimates of the sources of foodborne illnesses and developing methods to estimate how these sources change over time. The three goals of the new strategic plan are: (1) to improve the use and quality of new and existing data sources; (2) to improve analytic methods and models; and (3) to enhance communication about IFSAC progress.  Key objectives outlined in the strategic plan to achieve these goals, include:
    • Enhance the collection and quality of relevant source data;
    • Enhance the use of existing regulatory and foodborne illness surveillance data;
    • Incorporate genomic data and other novel data sources;
    • Explore ways to address key gaps in data quality, methods and models;
    • Develop new analytic approaches and models to maximize use of existing data;
    • Expand the availability of technical and scientific expertise through collaboration with internal and external partners;
    • Enhance relationships and engagement with internal and external groups; and
    • Improve the synthesis, interpretation and dissemination of analytical findings for multiple audiences.
  • The new strategic plan highlights IFSAC’s intent to continue engaging with industry stakeholders on future work.
  • By way of background, foreign governments have recently made substantial investments in U.S. agriculture. Most notably, Smithfield’s sale to Chinese firm Shuangui, Syngenta’s acquisition by Chinese-government owned group ChemChina and Bayer’s proposed acquisition of Monsanto.  Transactions such as these are reviewed by the Committee on Foreign Investment in the United States (CFIUS), a panel of government officials tasked with reviewing proposed mergers and acquisitions of U.S. companies, including foreign entities seeking to purchase U.S. agricultural and food assets. CFIUS determines whether or not transactions initiated by foreign entities threaten to impair U.S. national security interests. Currently, CFIUS does not include permanent representation from the U.S. Department of Agriculture (USDA) or the U.S. Department of Health and Human Services (HHS).
  • On March 14, 2017, U.S. Senators Chuck Grassley (R-Iowa) and Debbie Stabenow (D-Mich.) introduced new bipartisan legislation to give senior USDA and HHS officials permanent representation on the CFIUS. The “Food Security is National Security Act of 2017” would also require that CFIUS consider new agriculture and food-related criteria when reviewing transactions that could result in control of a U.S. business by a foreign company.
  • In introducing the legislation, Sen. Stabenow noted: “Protecting the integrity, safety, and resiliency of America’s food system is core to our national security . . . As foreign entities continue their aggressive acquisitions of U.S. food and agriculture companies, it’s imperative that these transactions face additional scrutiny. This bill ensures that the U.S. has the appropriate tools and people in place to safeguard America’s food security, food safety, biosecurity, and the highly competitive U.S. farm sector as a whole.”
  • No companion legislation has been introduced in the U.S. House of Representatives to date, but there appears to be some appetite for doing so.  We will continue to monitor any developments on the proposed legislation.
  • By way of background, Brazilian federal police raided several meat producers last Friday for allegedly doling out bribes to inspectors to certify meat that was either rotten or tainted with Salmonella. The raids uncovered that a small number of companies and inspectors have allegedly been using “carcinogenic acids” to mask rotten meat, switching out labels on expired meat to change the expiration dates, and deliberately approving shipments of meat products contaminated with Salmonella.  In response, a number of countries have halted the importation of Brazilian meat. So far, China, Chile, Japan, Mexico, Hong Kong, South Africa and the European Union have suspended Brazilian meat purchases, partially or completely.
  • Yesterday, Congresswoman Rosa DeLauro (CT) wrote to the USDA urging the Agency to cease the importation of Brazilian meat.
  • We will continue to monitor developments on this issue as they unfold.
  • 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 as of December 21, 2015.  Against this backdrop, the Trump administration is gearing up to renegotiate the North American Free Trade Agreement (NAFTA) with COOL reportedly being a key element of a model trade agreement.
  • On March 14, 2017, speaking at the confirmation hearing of Robert Lighthizer to be U.S. Trade Representative, Senator Pat Roberts (R-Kan.), chairman of the Senate Agriculture Committee, warned against any reconsideration of country-of-origin labeling (COOL). Sen. Roberts explained, “We fixed the issue of COOL in 2015. We don’t need to go down that road again. We narrowly escaped about $4 billion … in retaliatory tariffs against the United States. I do not think we need a constantly changing list of key elements of a model trade agreement … what we need is a U.S. Trade Representative confirmed … and in place who will embark on a robust trade policy.”
  • It remains to be seen whether the new administration will seek to advance COOL as part of its apparently imminent renegotiation of NAFTA.