• California State Senator Bill Monning (D-Carmel) introduced a bill that would require health warning labels on sugary beverages sold in California. More specifically, SB 300, referred to as the Sugar-Sweetened Beverages Health Warning Act, would require the following warning on certain sealed beverage containers:
    • STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, type 2 diabetes, and tooth decay.
  • Sugar-sweetened beverages are defined as having added sweeteners of 75 calories or more per 12 ounces. Exceptions would be allowed for certain types of beverages, such as 100% fruit juice, dietary aids, infant formula, and milk or milk substitutes. SB 300 was introduced on February 13, 2017, and referred to the Senate Committee on Health on February 23.
  • Sen. Monning introduced similar bills in 2014 and 2015, however, neither of those bills passed. In introducing the bill this time, Sen. Monning stated in a press release, “Officials and public health advocates have heightened their criticism of sugar as a key contributor to health epidemics like obesity and diabetes, and California has become a major battleground in the fight against what they say is excessive sugar consumption.” He also noted that San Francisco is currently defending in court a law requiring a warning label on advertisements for sugary drinks. (For more information on that case, see our August 10, 2016, blog entry, Soda Speech Suit.)
  • As previously covered on this blog here and here, for years, FDA, USDA, and various industry stakeholders have sought to tackle public health concerns associated with the use of medically important antibiotics to promote growth or feed efficiency in food-producing animals.  In the U.S., FDA is working with industry to gradually phase out the use of medically important antimicrobials in food animals for production purposes.   In an address to the UN General Assembly late last year, Dr. Margaret Chan, Director-General of the World Health Organization (WHO) called on consumers to choose “antibiotic free” meat, noting that doing so would help stem the “slow motion tsunami” of antimicrobial resistance.
  • On February 27, 2017, WHO published its first ever list of antibiotic-resistant “priority pathogens” – a catalogue of 12 families of bacteria that WHO claims pose the greatest threat to human health.  In its press release, WHO explains that the list was created to help guide and promote research and development of new antibiotics, as part of WHO’s efforts to address growing global resistance to antimicrobial medicines.
  • Coming on the heels of the WHO Director-General’s advice to choose “antibiotic free” meats, WHO’s publication of this “first ever” list suggests that antibiotic resistance concerns will continue to trend as a hot button issue in the food industry for years to come.
  • As previously covered on this blog, FSIS recently 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 has extended the comment period by 30 days, or until April 19, 2017.
  • A Keller and Heckman client alert addressing potential implications of the proposed rule is available here.  Keller and Heckman attorneys stand ready to assist interested parties in preparing comments and can be reached at: fooddrug@khlaw.com.
  • In recent years, both FDA and the food industry have faced criticism from consumer safety groups and the media related to the use of artificial colors in food, particularly where some ingredients are not approved or have been discontinued in other countries due to alleged safety concerns.  Last year, the Center for Science in the Public Interest (CSPI) released a report criticizing the continued use of artificial colors in the United States, alleging that the use of such dyes may trigger behavioral problems in children, and urging FDA to take action to ban or curtail the use of such dyes.
  • On February 16, 2017, California state Senator Bob Wieckowski jumped into the fray, introducing a bill to require warning labels on all foods containing synthetic dyes.  As support for the bill, the Senator cited to “mounting evidence” that synthetic food dyes contained in child-oriented food products trigger hyperactivity and other behavioral problems in some children with Attention Deficit/Hyperactivity Disorder (ADHD) and other behavioral disorders.  However, the food industry generally disputes the scientific validity of the alleged link to children’s behavior, consistent with FDA’s longstanding position that there is insufficient evidence of a causal effect between food dyes and behavioral problems.
  • It remains to be seen how this bill will fare given the contentious scientific issues involved.
  • As previously covered on this blog, on December 14, 2016, FDA announced the publication of Draft Guidance on “Fruit Juice and Vegetable Juice as Color Additives in Food” to assist manufacturers in determining whether a color additive derived from a particular plant material meets the specifications for fruit juice under § 73.250 or vegetable juice under § 73.260.  This guidance, including FDA’s interpretation of the terms used in § 73.250 and § 73.260, is limited to these specific color additive regulations.
  • On February 28, 2017, FDA announced the reopening of the comment period on its Draft Guidance on “Fruit Juice and Vegetable Juice as Color Additives in Food” for 60 days to allow interested parties additional time to submit comments.
  • This guidance aims to clarify when juices from fruits and vegetables may be used as color additives in food under existing authorizations without additional premarket review and approval from FDA under its color additive petition process.  Keller and Heckman attorneys stand ready to assist interested parties in preparing comments and can be reached at: fooddrug@khlaw.com
  • An alliance of 17 food and beverage trade groups has asked the Food and Drug Administration (FDA) to extend the compliance dates for supplier verification under the Preventive Controls for Human Food (PCHF) and the Foreign Supplier Verification Program (FSVP) final rules, and to align the compliance dates of the two rules. The PCHF and FSVP rules were implemented under the Food Safety Modernization Act (FSMA).
  • In a February 13 letter to Dr. Stephen Ostroff, Acting FDA Commissioner, the Food & Beverage Issue Alliance explained:
    • “The PCHF and FSVP regulations are groundbreaking in many respects. These are the first FDA regulations requiring implementation of comprehensive supplier verification programs. PCHF is the first regulation requiring supplier verification for domestically produced foods. FSVP is the first regulation where FDA has required supplier verification of all imported foods. FSVP also is the only FDA Food Safety Modernization Act (FSMA) regulation that may require entities that do not manufacture food, such as retailers, to engage in supplier verification.”
  • The alliance pointed out that the PCHF compliance date, March 17, 2017, is just over one month away for many companies and the compliance date for FSVP, May 30, 2017, is less than four months away. (FDA extended the FSVP compliance for verification activities for food-contact substances to May 28, 2019.) The alliance also explained that many of its members have hundreds or even thousands of suppliers requiring supplier verification and will need more time to modify programs based on guidance from FDA, especially since the agency had not issued draft guidance documents on these rules yet. The group also expressed concern over when the guidance documents will be published given the While House Regulatory Freeze Memo, issued earlier this year (See our blog entry, Food Groups Express Concern about Impact of Recent Presidential Orders, for more information on the memo.) The alliance requested that the compliance date for both regulations be extended until May 28, 2018.
  • The alliance includes the Food Marketing Institute, the Grocery Manufacturers Association, the American Frozen Food Institute, the International Dairy Foods Association, the United Fresh Produce Association, the Association for Dressings & Sauces, the Juice Products Association, the Vinegar Institute, the National Pasta Association, the North American Millers’ Association, the American Bakers Association, the National Association of Chemical Distributors, the Peanut and Tree Nut Processors Association, SNAC International, the Produce Marketing Association, the National Confectioners Association, and the National Grocers Association.
  • As previously covered on this blog, a number of U.S. cities have implemented controversial taxes on soft drinks.  This trend appears poised to continue with an upcoming public hearing in Santa Fe, New Mexico concerning a proposed soft drink tax slated for March 8, 2017.
  • Spearheaded by Santa Fe Mayor, Javier Gonzales, the proposed tax would levy a 2-cent-per-ounce tax on sugar-sweetened beverages sold in the city (but not on diet soda).  The tax is ostensibly meant to fund pre-school programs for 3- and 4-year-olds.  Following the March 8, 2017 public hearing, the Santa Fe City Council will vote on whether to move forward with putting the proposal before voters in a special election this May.
  • Reaction to the proposed soda tax is predictably mixed.  We will continue to monitor whether Sante Fe moves forward with the proposed tax and, importantly, whether other jurisdictions follow suit.
  • 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 a World Trade Organization (WTO) ruling that the COOL requirements violate U.S. trade obligations to Canada and Mexico, and Congress repealing COOL as of December 21, 2015.  Several states have since attempted to require retail meat products to bear a country-of-origin label.  A state senator recently introduced such a bill in South Dakota.
  • Earlier this week, South Dakota’s legislature squashed the proposed COOL bill for meat sold in the state.
  • Given the fact that COOL was repealed at the federal level in December 2015, it is unlikely that state COOL efforts will be successful in the near term.  Nevertheless, this remains a topic of interest to industry and worth continued monitoring.
  • Supermarket shelves are overflowing with food and beverage products sporting a dizzying array of date labels.  The Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) report (here and here) that, as it stands, at least 10 different date labels on packages – such as Sell By, Use By, Expires On, Best Before, Better if Used By or Best By – are currently in the marketplace and can result in confused consumers discarding a safe or usable product after the date on the package.
  • To reduce consumer confusion, GMA and FMI have joined together to spearhead efforts to streamline and standardize the wording accompanying the date labels on packages to offer greater clarity regarding the quality and safety of products. This 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.
  • This industry-wide effort, which seeks to stem consumer confusion over dates on the product label and potentially help consumers avoid unnecessary food waste, follows on USDA’ recent guidance encouraging manufacturers and retailers of meat, dairy and eggs to use one universal “Best if Used By” date label on their products.
  • GMA and FMI are encouraging retailers and manufacturers to immediately begin phasing in the common wording with widespread adoption by the summer of 2018.  Broad industry adoption of this new voluntary standard is intended to occur over time to allow companies flexibility to make the changes in a way that ensures consistency across their product categories.
  • As our readership is well aware, under current law, establishments regulated by USDA’s Food Safety and Inspection Service (FSIS) are required to declare all ingredients, including allergens, on their products’ labels.  If FSIS determines that a product under its jurisdiction contains undeclared allergens, the Agency requests the establishment to recall the product.  FSIS recently reported that since 2008, the Agency has seen “a notable increase” in the number of recalls due to undeclared allergens in regulated products.
  • To address the continued occurrence of product recalls due to undeclared allergens and best practices for preventing the presence of undeclared allergens in FSIS-regulated products, FSIS has announced a public meeting to be held on March 16, 2017.  The meeting will include participation from the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), international partners, and academic institutions.  In addition to holding this public meeting, FSIS has published a compliance guideline to assist regulated establishments in addressing the hazards posed by allergens in their products.
  • The upcoming March 16, 2017 meeting is scheduled to be held at USDA’s Jefferson Auditorium in the South Building at 14th & Independence Ave. SW in Washington D.C., from 8 a.m. to 5:30 p.m.  For additional information on this meeting, please see the Federal Register Notice here.