Search results for: mexico

  • Florida Natural Growers, Inc., was recently sued for allegedly falsely representing its Florida’s Natural orange juice products as being exclusively made from premium Florida orange juice despite being blended with juice from other countries. The plaintiff claims that Florida Natural knew that consumers would rely on Florida representations made on the label and be willing to pay more for Florida orange juice.
  • According to the complaint, labeling on the front of the package claiming “Owned by Florida Farmers” next to an American flag, as well as language on the side panel of the package about why the company is “different,” imply that the orange juice is made exclusively from Florida oranges. Further, the American flag is claimed to be an implied “Made in the USA” claim, which is regulated by the Federal Trade Commission and only permissible where “all or virtually all ingredients . . . are made and sourced in the United States.” 16 CFR 323.2.
  • The complaint also alleges that there is a strong connection between Florida and the citrus industry such that “consumers overwhelmingly preferred Florida orange juice” and are willing to pay a premium of approximately 50% for 100% Florida orange juice.
  • However, according to the plaintiff, because of a decline in citrus groves in Florida due to plant diseases, Florida Natural began including orange juice from Mexico and Brazil in its products beginning in 2022. Thus, the plaintiff claims, the claims on the orange juice label are misleading and deceptive.
  • Keller and Heckman will continue to monitor this case and other class action lawsuits related to food labeling.
  • A salmonella outbreak traced to cantaloupe imported from Mexico has spread through several U.S. states and Canada. As of November 17, 2023, at least 43 people in the U.S. and eight people in Canada had been infected with Salmonella linked to the same cantaloupes. At least 17 of those people required hospitalization.
  • On November 15, 2023, Sofia Produce, LLC issued a recall of all fresh cantaloupes it distributed in packages labeled with the “Malichita” brand between October 16 and 23, 2023. The cantaloupes were distributed directly to Arizona, California, Maryland, New Jersey, Tennessee, Illinois, Michigan, Wisconsin, Texas, Florida, and Canada, and may have reached consumers through retail outlets outside of those areas.
  • The outbreak also includes Vinyard brand pre-cut cantaloupes and ALDI brand whole and pre-cut cantaloupes. Sofia Produce is contacting each of its buyers to advise them of the recall. Consumers should check to see if they have recalled products, which should not be consumed. If consumers are unsure whether they have purchased a recalled product, they are advised to contact their retailer.
  • Keller and Heckman will continue to monitor and report on food recalls in the U.S.
  • The U.S. Food and Drug Administration (FDA) and the Center for Disease Control and Prevention (CDC) are renewing public health warnings that address the continuing hepatitis A outbreak traced to frozen, organic strawberries.  Although the outbreak has progressed slowly, public health officials are concerned that consumers may continue to be at risk due to the frozen product’s long shelf life.
  • As the FDA and CDC continue to investigate, various retailers have voluntarily recalled products that may be contaminated.  The strawberries in question have been found to have been imported by a common supplier from certain farms located in Baja California, Mexico.  FDA reported that, “the strain of hepatitis A virus causing illnesses this year is genetically identical to the strain that caused the outbreak of hepatitis A virus infections in 2022, which was linked to fresh organic strawberries imported from Baja California, Mexico, and sold at various retailers.”
  • Hepatitis A is a highly contagious, vaccine-preventable, liver infection caused by the Hepatitis A Virus (HAV).  Even if no symptoms are present, people can still transmit the infection.  Thus far, there have been 18 reported cases, resulting in 13 hospitalizations.  FDA has provided general food safety tips for consumers and retailers during an outbreak.
  • In 2020 FDA established a collaborative partnership, i.e., “Statement of Intent” (SOI), with its Mexican counterparts (SENASICA and COFEPRIS) to improve the safety of food that is traded between the countries. The SOI expanded upon a 2014 SOI which had been limited to produce and minimally processed foods.
  • On March 31, 2023, FDA held a joint meeting with SENASICA and COFEPRIS to discuss the progress on food safety issues. Progress on identifying food contaminated with Cyclospora cayetanensis was particularly noteworthy and FDA shipped Cyclospora DNA sequences to SENASCIA and COFEPRIS and delivered a training on Chapter 19B of the Bacteriological Analytical Manual (BAM), which relates to FDA’s preferred methods for testing for Cyclospora cayetanensis.
  • Other accomplishments of the partnership can be found at the FDA webpage for the partnership where they are listed under one of the four content-specific working groups which worked on the issue: (1) the Strategic Priorities Work Group (focused on improving communication on important food safety issues), (2) the Laboratory Collaboration Work Group (focused on sharing lab data including whole genome sequencing, (3) the Outbreak Response Work Group (focused on enhancing effectiveness and timeliness of responses to food born illness outbreaks), and (4) the Food Safety Training Work group (focused on training to improve compliance with food safety requirements). 
  • We will continue to monitor and report on any developments in the partnership as well as other food safety issues.
  • As part of legislation updates to the rate of official controls and emergency measures for food of non-animal origin imported into Europe, the European Commission (EC) has added controls for vanilla extract from the United States. 
  • Decisions are based on notifications made in the Rapid Alert System for Food and Feed (RASFF) portal and information from documentary, identity, and physical checks by member states in 2022.
  • Consignments of vanilla extract from the US will need to be accompanied by an official certificate stating that sampling results show compliance with EU maximum residue levels for ethylene oxide.  However, shipments dispatched before February may enter the EU until October 16, 2023 without a certificate and they will be subject to checks at a 20% frequency.  Other products with new ethylene oxide checks include botanical food supplements from South Korea, locust bean products from Morocco and Malaysia, tomato ketchup and sauces from Mexico, and calcium carbonate from India.
  • Currently, there is a 20% frequency for checks on peanuts, peanut butter, and peanut paste for aflatoxins from the US as well.
  • On January 26, 2023, FDA issued a 60-day notice in the Federal Register of its intention to conduct an experimental study on consumer responses to front-of-package (FOP) labeling. Any collection of information conducted or sponsored by an agency requires such notice and solicitation of public feedback prior to submission to the Office of Management and Budget (OMB) for approval.  44 U.S.C. 3506(c)(2)(A)
  • FDA continues to explore options to create a healthier food supply and to empower consumers to make healthier choices including through FOP labeling. FOP labeling has already been adopted in both Canada and Mexico and the development of FOP labeling was included as part of the White House’s Hunger, Nutrition, and Health Strategy. In 2022 FDA conducted a review of the literature on FOP nutrition-related labels and conducted a set of focus groups to test FOP concepts and draft FOP schemes, and the results of this work will inform the experimental study.
  • The experimental study will test 3,000 adult consumer responses to a set of draft FOP schemes over 3 mock food products without providing any explanation of the FOP scheme. Further details regarding the study are available in the Federal Register notice.
  • As required by statute FDA is seeks comment on:
  1. whether the proposed collection of information is necessary for the proper performance of FDA’s functions, including whether the information will have practical utility;
  2. the accuracy of FDA’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
  3. ways to enhance the quality, utility, and clarity of the information to be collected; and
  4. ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
  • Comments are due by March 27, 2023. 
  •  Dr. Mark Moorman, Director of the Food and Drug Administration’s (FDA) Office of Food Safety, and Stephen Hughes (Prevention Coordinator) published a post on the FDA Voices blog on October 13, 2022 discussing a new series designed to share the latest information on strategies for preventing future foodborne illnesses.
  • FDA’s new series of Prevention Strategies to Enhance Food Safety is developed from investigations of foodborne disease outbreaks.  For food-hazard pairings where emerging patterns can be identified and targeted, FDA will release strategies that contain recommendations for the prevention of future foodborne illness.  These strategies take from the lessons learned from larger initiatives like the Leafy Green STEC Action Plan, while establishing a scalable approach that can be utilized more frequently.  FDA has thus far released two Prevention Strategy documents:
    • Imported Enoki and Imported Wood Ear Mushroom Strategy Document (September 26, 2022) targets Listeria monocytogenes and Salmonella contamination of imported specialty mushrooms and, among other information, includes:
      • Recommendations for further research; and
      • Increased sampling at U.S. ports and retail operations.
    • Bulb Onion Strategy Document (September 26, 2022) targets Salmonella contamination of bulb onions and includes:
      • Recommendations for further research;
      • Prioritized inspections of farms in the U.S. and Mexico;
      • Increased sampling of onions from the State of Chihuahua, Mexico;
      • Support for industry-led efforts to develop and implement best practices for bulb onion production; and
      • Prioritized Foreign Supplier Verification Program inspections of bulb onion importers.
  • FDA experts will be interviewed about foodborne illness prevention strategies on Food Safety Magazine’s Food Safety Matters podcast to be released October 18, 2022.
  • A class action lawsuit filed in the U.S. District Court for the District of New Mexico against Diestel Turkey Ranch alleges that much of the advertising of its turkeys is false and designed to mislead consumers into purchasing products that they believe are sourced from animals that have been raised with the highest standards of care.
  • In particular, Defendant’s turkey products, which are sold at major retailers such as Whole Foods, are marketed to provide consumers the comfort of knowing that the products are sourced from turkeys that are raised humanely in open pasture on a small family run ranch in the Sonora, California region. For example, among other representations, Diestel advertises its products as “[t]houghtfully raised on sustainable family farms with plenty of fresh air and space to roam” and as raised under the welfare standards of the Global Animal Partnership (GAP) Welfare Certified Program.
  • Plaintiff alleges that, in stark contrast to these representations, the vast majority of turkeys are raised in abysmal conditions at factory farm operations outside of California. And, while some of Defendant’s products are in fact certified under the highest GAP standard (< 1%), Plaintiff notes that the GAP auditors visit every 15 months and the turkey life cycle is only 4 months, so many flocks sold as GAP were never visited by a third-party auditor. Further, Plaintiff also notes that while USDA-FSIS reviews and requires some substantiation for animal raising claims, it does not independently verify claims through on-site inspections and, as a result, many such labels contain inaccurate statements.
  • The lawsuit follows several years after the Washington Post and the Wall Street Journal reported on abuses at Diestal Turkey Ranch farms and a month after a similar lawsuit was filed in the U.S. District Court for the Northern District of California.

 Food Cos. Escape Suit Alleging False US Origin Labeling (subscription to Law360 required)

  • The Federal Meat Inspection Action (FMIA) grants the United States Department of Agriculture (USDA) exclusive authority to regulate the labels and packing of beef products.  A lawsuit, previously covered on this blog, that sought to force USDA to reinstate its country of origin labeling (COOL) rules was dismissed on June 5, 2018.  Under USDA’s COOL rules, implemented in 2013, meat labels were required to indicate where animals were born, raised, and slaughtered.  After much controversy and a ruling against the COOL requirements by the World Trade Organization (WTO), Congress repealed the COOL requirements as of December 21, 2015.  In the aftermath of the COOL controversy, a beef product label, which cannot be used until it is approved by USDA’s Food Safety Inspection service (FSIS), is permitted to bear the phrase “Product of the USA” if the product is “processed” in the United States.
  • On August 27, 2020, a New Mexico federal judge granted motions by defendant meat processing companies, Tyson Foods, Inc., Cargill Meat Solutions, JBS USE Food Company, and National Beef Packing Company to dismiss two previously consolidated putative class actions on behalf of consumers and ranchers alleging that “Product of the USA” claims are fraudulent and misleading as applied to beef from cattle raised in foreign countries and imported live for slaughter and processing in the U.S.  The judge denied injunctive relief, finding it was preempted by the express language of the FMIA in that it would create labeling requirements “in addition to, or different than” the USDA’s standards.  Further, the judge refused to consider whether USDA’s decision to approve the label may be wrong, determining that since USDA had authority to regulate country-of-origin labeling the preemption analysis stands without consideration of any evidence as to whether the labeling is misleading.
  • Although appeals are expected in the federal lawsuits in New Mexico, potential new action from the USDA could possibly cement the preemption argument.  As we have covered on this blog, on March 26, 2020, in denying two petitions requesting that the FSIS permit “Product of the USA” labeling only on meat of “domestic origin,” the USDA announced an intent to initiate rulemaking to limit “Product of USA” and certain other voluntary U.S. origin statements to meat products derived from livestock that were slaughtered and processed in the United States.
  • On July 9, 2020, USDA’s Agricultural Marketing Service unveiled an unpublished draft of Strengthening Organic Enforcement, which is a new rule for the National Organic Program aimed at bolstering enforcement and oversight of the US organic industry.  This proposal addresses challenges by making changes in four major areas.
  • First, the proposed rules limit the types of businesses that are exempt from organic certification, which closes gaps in oversight that increase the risk of fraud and mishandling that can compromise organic products.   This proposed rule applies to those businesses that “buy, sell or trade organics, or businesses that negotiate the purchase, sale or trade of organic products between buyers and sellers.”
  • Second, the proposed rule mandates electronic National Organic Program import certificates for all organic products.  This represents a change from the current system, which only requires import certificates from certain countries, like those in the EU, South Korea, and Japan.  The director of AMS’ Standards Division noted that requiring electronic National Organic Program Import Certificates for each shipment of organic products into the US will help ensure compliance of imported organics by “providing traceability to the port of entry and creating an auditable record trail.”
  • Third, the proposed rule includes standardized record-keeping requirements, which are meant to help prevent and quickly contain fraud at the operation level before it continues onto the supply chain.
  • Lastly, the new proposal requires that certifiers take additional steps to protect the integrity of the organic supply chain and addresses on-site audits.  For example, the proposed rule requires that all certifiers conduct unannounced inspections of at least 5% of the operations they certify annually.  We will continue to monitor any developments.