• The Connecticut legislature is considering an anti-price-gouging bill (House Bill 6856) that would add new disclosure requirements for food companies that adjust product sizes without price changes (a practice referred to as “shrinkflation”). 
  • If passed, the bill would require companies to “provide a clear and conspicuous notice” for at least 12 months when they reduce the “quantity, amount, weight, or size of a product” without adjusting the price.  The bill applies to “essential groceries covered by federal Supplemental Nutrition Assistance Program (SNAP) regulations, including baby formula, bread, cereals, dairy products, meats and fish, non-alcoholic beverages, seeds, and snacks.”  The language excludes retailers and establishments, like restaurants, that ​“primarily sell food to the public for consumption.”
  • According to Connecticut Attorney General William Tong, “[a]lthough companies must update their labels to reflect product size changes, they are not currently required to advertise that they have made a change.  Since the pandemic, price sensitive consumers have started to notice these changes—for example when they open their favorite box of crackers or bag of chips only to realize that the box or bag is only half full.  This leaves consumers feeling deceived and like they are receiving less value for their hard-earned dollars.”
  • If passed, Connecticut would be the only state in the US to explicitly address shrinkflation. Keller and Heckman LLP will continue to monitor legislative developments.
  • Last month a lawsuit filed by plaintiffs including the Tucson Environmental Justice Task Force (TEJTF) filed suit against FDA and now former FDA commissioner Robert Califf alleging that FDA had unduly delayed in responding to a petition filed by TEJTF in 2023 which had requested that FDA set tolerances for 30 types of PFAS in lettuce and blueberries and 26 types of PFAS in bread, milk, eggs, salmon, clams, and corn silage.
  • The lawsuit argues that FDA has unduly delayed because it has not acted consistent with its statutory mandate to “promote public health by promptly and efficiently reviewing clinical research and taking appropriate action on the marketing of regulated products in a timely manner” (21 USC § 393) and the delay allegedly is to the detriment of the public health. The lawsuit argues that prior decisions holding that courts should defer to FDA on whether to promulgate tolerances is no longer good law post-Chevron and that the “only discretion FDA may exercise for such chemicals [harmful substances] is the level of tolerance to be set.”
  • We will continue to monitor and report on the regulation of PFAS and other chemicals, including any changes in approach that may be implemented by the new administration.

  • FDA has delayed the effective date of the final rule on use of the term “healthy” in food labeling until April 28, 2025, in response to a presidential memorandum recommending a regulatory freeze to review questions of fact, law, and policy that recently published rules may raise. We previously blogged about the “healthy” final rule here and the regulatory freeze here.
  • According to the Agency, the temporary delay “is necessary to give Agency officials the opportunity for further review and consideration of the new regulation, consistent with the memorandum described previously.” FDA is not seeking public comment due to the limited impact of the delayed effective date, since the February 25, 2028 compliance date remains unchanged. FDA also reiterated that “parties are free to begin implementing the rule earlier than the compliance date.”
  • Keller and Heckman will continue to share updates on the “healthy” rule and other FDA actions.
  • Since the start of February, at least four states have introduced or advanced proposals to ban various food chemicals and address concerns over the use of ultra-processed foods (UPFs).  New food chemical bans have surfaced in recent days in Florida, Arizona, and Utah, while lawmakers in Illinois advanced a food chemicals ban that has long raised concerns for industry stakeholders.
  • The Illinois chemicals ban (SB 93) would prohibit brominated vegetable oil, potassium bromate, propylparaben, and Red No. 3, effective in 2028.
  • Florida has been one of the latest states to introduce a food chemical ban.  If passed, the bill (SB 560) would prohibit food companies from manufacturing, selling or distributing food that contains nine food chemicals, including potassium bromate, propylparaben, Blue No. 1, Yellow No. 5, benzidine, butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT).
  • In Arizona, Republican Sen. Leo Biasiucci said he was inspired by the MAHA movement to introduce HB 2164, which would ban any food that contains eleven chemicals: potassium bromate, propylparaben, titanium dioxide, brominated vegetable oil, Yellow No. 5 and 6, Blue No. 1 and 2, Green No. 3, and Red No. 3 and 40.  The bill would also ban UPFs in school meals – however, the definition for UPFs included in this bill categorizes these as foods that contain any of the eleven chemicals set to be banned by the proposal.  This definition differs significantly from other approaches, by focusing more on specific additives, rather than the degree of processing.
  • Utah has followed a similar approach to Arizona with HB 402.  If passed, this bill would ban certain ultra-processed foods from being served at schools.  UPFs are defined here as foods containing one or more of the following ingredients: brominated vegetable oil, potassium bromate, propylparaben, titanium dioxide, Blue No.1 and 2, Green No. 3, Red No. 3 and 40, and Yellow No. 5 and 6.
  • As we have previously blogged about, Health Canada published front-of-pack (FOP) labeling regulations in 2022, which require warnings for most foods high in saturated fat, sugars, and/or sodium. See also Front-of-package nutrition symbol labelling guide for industry – Canada.ca. The regulations will begin to be enforced on January 1, 2026, although the warnings can be voluntarily implemented earlier and have already begun to appear on Canadian shelves.  
  • Recently, Health Canada’s Food and Nutrition Directorate launched an initiative to bring awareness to the new warnings. The initiative aims to inform consumers of the symbol that will be used (black and white box with a magnifying glass, a “high in [X]” declaration, and the words “Health Canada”), its utility (intended to help consumers make informed health choices), and the reason why some pre-packaged foods don’t have it (e.g., the food is a fruit or vegetable or other food exempted because it offers health protection benefits).
  • We will continue to monitor developments on FOP labeling rules in Canada, the U.S., and other jurisdictions.
  • Thousands of workers employed across the Department of Health and Human Services received notices that they would be terminated following four weeks of leave, including at least 89 members of FDA’s Human Foods Program staff, as part of the Trump administration’s overhaul of the federal workforce. The layoffs follow the confirmation of Robert F. Kennedy, Jr. as HHS secretary on February 13.
  • Terminated staff from FDA’s Human Foods Program include those working on nutrition, infant formula, and food safety response, as well as 10 staff members “who were charged with reviewing potentially unsafe chemicals in the nation’s food supply.”
  • Jim Jones, FDA’s deputy commissioner for human foods, resigned from the Agency on February 17, citing the “indiscriminate firing” of food program staff and Robert F. Kennedy, Jr.’s rhetoric toward staff. In a letter, Jones wrote: “I was looking forward to working to pursue the Department’s agenda of improving the health of Americans by reducing diet-related chronic disease and risks from chemicals in food. It has been increasingly clear that with the Trump Administration’s disdain for the very people necessary to implement your agenda, however, it would have been fruitless for me to continue in this role.”
  • Jones, who was appointed as deputy commissioner for human foods in 2023, had committed to priority areas of preventing foodborne illness, decreasing diet-related chronic disease, and safeguarding the food supply, as we previously blogged.
  • Keller and Heckman will continue to report on updates to FDA’s Human Foods Program.
  • On February 13, 2025, President Donald J. Trump signed an Executive Order establishing the President’s Make America Healthy Again Commission.  This initiative, chaired by the newly-confirmed U.S. Health and Human Services Secretary Robert F. Kennedy Jr., aims to tackle the root causes of chronic diseases that affect millions of Americans.
  • According to the order, six in ten Americans have at least one chronic disease, and four in ten have two or more.  The commission aims to review the American diet, “absorption of toxic material,” and “food production techniques,” as part of its objectives.
  • The Commission has outlined four main policy directives to achieve its goals: (1) requiring federally funded research to be transparent; (2) prioritizing researching the root causes of illness; (3) working with farmers to ensure our food supply is healthy and abundant; and (4) increasing the flexibility of health insurance coverage to provide better support for disease prevention.
  • The composition of the Make America Healthy Again Commission will include the Secretary of Health and Human Services as Chair, and the Assistant to the President for Domestic Policy as Executive Director, and top officials across several federal agencies related to health, the environment, food and drugs, and others.
  • The EO requires that within 100 days of the order, the commission will provide a preliminary assessment identifying the causes of childhood chronic disease in America.
  • Keller and Heckman will continue to monitor the new commission and any activities or initiatives taken under its directive.
  • On February 13, 2025, the US Senate confirmed Robert F. Kennedy, Jr. as the nation’s top healthcare official, the secretary of the US Department of Health and Human Services (HHS).  Through this position, Kennedy will be in charge of the US Center for Disease Control and Prevention (CDC), the US Food and Drug Administration (FDA), and the Centers for Medicare & Medicaid Services.
  • During his Senate confirmation hearings, Kennedy discussed what he has described as a health crisis facing the United States and advocated for changes in the food system, starting at the soil level.  In his opening remarks, Kennedy stated, “We will make sure our tax dollars support healthy foods.  We will scrutinize the chemical additives in our food supply… We will create an honest, unbiased, gold-standard science at HHS…”
  • Kennedy’s Make America Healthy Campaign (MAHA) website calls for a “comprehensive national strategy to combat the chronic disease epidemic, which includes addressing the root causes such as poor diet, environmental toxins, and inadequate healthcare,” though MAHA opponents question Kennedy’s scientific qualifications and evidence for some of his claims.
  • Kennedy has consistently vocalized his opposition to “highly chemical, intensive processed foods,” or “ultra-processed foods,” though some argue the term to be not well-defined.  Kennedy called out the food supply as being the “primary culprit” of “poisoning the American people.”  During the hearing, Kennedy also called out the practice of food and beverage companies selling products in the US with more ingredients, while selling “cleaner” versions of the same product outside the US.
  • Iowa and 22 states have filed a brief supporting the petition of the Iowa Pork Producers Association (IPPA) to the Supreme Court for a writ of certiorari to review the judgment of the 9th Circuit Court of Appeals in a case involving a challenge to California Proposition 12. Prop 12 is an animal welfare law which prohibits the sale of pork from swine housed in conditions inconsistent with California standards.
  • In National Pork Producers Council (NPPC) v. Ross, the Supreme Court, in a fractured opinion, dismissed a similar challenge to Prop 12 and held that it did not violate the dormant commerce clause.
  • However, IPPA argues that this case presents different questions, in part because it alleges discrimination against out-of-state pork producers. In contrast, NPCC had disavowed any discrimination-based claims in their challenge to Prop 12.
  • The petition for certiorari also requests that the Court address the issue of whether dissenting opinions should be considered in determining a majority opinion on a point of law. In affirming the dismissal of the IPPA challenge to Prop 12, the 9th Circuit applied its own precedent and not the Supreme Court’s precedent in NPPC v. Ross because the “majority of the Justices . . . did not agree upon a single rationale and there is no opinion that can reasonably be described as a logical subset of the other.”
  • A grant of writ of certiorari is up to the discretion of the Supreme Court, but the Court typically considers factors that include the importance of resolving conflicts in judicial interpretations and the significance of the issue(s).
  • The Trump administration has named Gerald Parker to lead the White House Office of Pandemic Preparedness and Response Policy. Parker is a veterinarian and has served in the Departments of Health & Human Services, Homeland Security, and Defense.
  • Most recently, Parker served as the associate dean for Global One Health at Texas A&M’s College of Veterinary Medicine and Biomedical Sciences. In this role, he advised lawmakers on the U.S. bird flu outbreak that has sickened at least 66 people.
  • Congress established the White House Office of Preparedness and Response Policy in 2022 as the Covid-19 pandemic began to abate. The office advises the President on pandemic preparedness and response policy, drives interagency strategic coordination and communication in preparation for and response to biological threats, and promotes and supports the development of relevant expertise and capabilities to ensure the U.S. can quickly detect, identify, and respond to such threats.