• Secretary of Health and Human Services Robert F. Kennedy Jr. has been critical of seed oils, alleging that they are harmful to human health and that consumers have been “unknowingly poisoned.”  (See Twitter Post). This view is not shared by most of the scientific community. Indeed, FDA has approved qualified health claims for canola, corn, and soybean oils (all types of seed oils) and reduction in the risk of coronary heart disease. See Qualified Health Claims: Letters of Enforcement Discretion | FDA. However, this has not stopped Sweetgreen from announcing a seed-oil free menu earlier this year.
  • Although no seed oils bans have been proposed, a recent study conducted by the World Agricultural Economic and Environmental Association found that any such ban would significantly increase consumer vegetable oil prices and would have deleterious effects on the U.S. farm industry (non-seed oils like olive, palm, and peanut oil are largely imported).
  • Specifically, the study found that per capita spending on vegetable oils and fats would be 42.8% higher per year if overall vegetable oil consumption remained the same (non-seed vegetable oils substituted completely for seed oils). A second scenario assumed that the oils are not fully substitutable, resulting in a 21.1 pound per capita drop in vegetable oil consumption and an 8% greater per capita spending on vegetable oils per year.
  • The study characterizes the simulated effects as having an unprecedented shock on the oilseed market.
  • Sovena USA Inc. has filed a motion to dismiss (Law360 required) a proposed class action alleging that the company falsely labeled its avocado oil as “100% pure” despite diluting it with “cheaper” seed oils. According to Sovena, “the suit lacks evidence and is part of a ‘baseless’ litigation campaign meant to undermine the industry.”
  • The class action stems from a study by UC Davis researchers that showed fatty acid profiles beyond the types of fatty acids that would be expected to be in pure avocado oil, suggesting that there are other oils mixed into Sovena’s Olivari avocado oil. However, Sovena says that rather than testing for inferior oils, the researchers used a “theoretical ‘purity standard’” that they applied to a single bottle of Olivari oil. Thus, the study did not demonstrate that other oils are present in the Olivari oil or any of the other samples tested, but instead that the samples contained an “indicator” of other oils, “could have” other oils, or that the samples otherwise failed the researchers “ad hoc purity standards.”
  • According to Sovena, because the study does not definitively identify adulteration in the avocado oil, it cannot provide a plausible basis for the plaintiffs’ claims. Therefore, Sovena says the case should be dismissed with prejudice as “just one of multiple no-injury, no-deception class action suits aimed at avocado industry members.” The motion references other suits against Kroger and Walmart, which were both dismissed at the pleading stage.
  • Keller and Heckman will continue to monitor this and other food labeling litigation.
  • On April 9, 2025, the White House issued a memorandum titled “Directing the Repeal of Unlawful Regulations,” directing agency heads to repeal rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)). The “good cause” exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.”
  • This review-and-repeal effort directs agencies to evaluate existing regulation’s lawfulness under several recent Supreme Court decisions such as Loper Bright Enterprises v. Raimondo and West Virginia v. EPA—decisions which limited the power of federal agencies to promulgate regulations absent explicit congressional authorization.
  • The memorandum is intended to reinforce Executive Order 14219, published on February 19, 2025, which directed the heads of all executive departments and agencies to identify categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them.
  • Following the 60-day review period ordered in Executive Order 14219, agencies are instructed to immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that “clearly exceeds the agency’s statutory authority or is otherwise unlawful.”
  • Keller and Heckman will continue to monitor developments related to the repeal of regulations and provide updates on how these changes impact regulated industries.
  • On April 5, 2025, Texas Attorney General Ken Paxton announced an investigation of W.K. Kellogg Co. (Kellogg) for potential violation of Texas consumer protection laws, alleging that Kellogg’s marketing of its cereals as “healthy” is deceptive marketing because they include artificial food dyes and butylated hydroxytoluene (BHT).
  • As we previously reported, the Texas Senate recently passed SB 25, which if passed into law would require food labels to warn Texas consumers if a food product contains ingredients banned in other countries.  The bill is now under review with the Texas House Committee on Public Health.  AG Paxton’s announcement signals the Texas government’s continued focus on food additives and “healthy” claims by food manufacturers.
  • AG Paxton alleges that Kellogg’s “healthy” claim is deceptive because the artificial dyes “have been linked to hyperactivity, obesity, autoimmune disease, endocrine-related health problems, and cancer in those who consume them.”  However, not all food scientists agree with this link to health issues, and many of the food dyes and additives are currently approved for use by the U.S. Food and Drug Administration (FDA).
  • Keller and Heckman will continue to monitor this investigation and relay any developments.
  • Food Standards Australia and New Zealand (FSANZ) have approved a cell-cultured quail product produced by Vow, an Australian company. Under the approval, either the term “cell-cultured” or “cell-cultivated” must be displayed on the labeling.
  • The approval follows two rounds of public consultations on Vow’s novel food application, originally submitted in January 2023.
  • The approval will now be sent to the Food Ministers (of the Commonwealth, States and Territories, and New Zealand) who have 60 days to accept, amend, or seek a review of the proposed change to the Food Standards Code. If accepted, the product can then be commercialized. 

  • A new bill introduced in the U.S. House of Representatives would require a “high caffeine” warning on beverages that contain more than 150 milligrams of caffeine, as well as require manufacturers to declare the amount of caffeine in their products.
  • Representative Robert Menendez introduced H.R.2511, the Sarah Katz Caffeine Safety Act, stating that (Law360 subscription required) “the bill is about transparency and safety,” aimed at preventing tragedies such as the death of Sarah Katz, a college student who died after drinking a highly caffeinated beverage. As we previously blogged, Katz’s parents filed a lawsuit alleging that Panera Bread Company’s “Charged Lemonade” caused their daughter’s death and that the beverage contained anywhere from 260-390 mg of caffeine, depending on the size of the beverage.
  • The bill would require menu items in chain restaurants containing at least 150 mg of caffeine to bear a statement such as “high caffeine” on the menu. In addition, the bill amends Section 403 of the Food, Drug, and Cosmetic Act to consider foods and dietary supplements containing more than 10 mg of caffeine as misbranded unless the label includes the amount of caffeine in the product, a statement of whether the caffeine is naturally occurring or an additive, and an advisory statement regarding FDA’s daily recommended limit of caffeine for healthy adults.
  • The bill also directs FDA to define “added caffeine” and review the status of caffeine and other stimulants as generally recognized as safe (GRAS). Specifically, FDA would be directed to consider:
    • Whether caffeine should be considered GRAS;
    • The safety of caffeine or other stimulants, either alone or in a blend;
    • The safety of guarana, taurine, and similar substances in food and dietary supplements with added caffeine;
    • Thresholds for the amount of caffeine or blends of caffeine and other stimulants; and
    • Whether any regulations relating to caffeine in food and dietary supplements should be issued or updated.
  • Finally, the National Institutes of Health would be required to conduct or support a review of the effect of caffeine consumption in vulnerable populations, and FDA and CDC would be required to conduct a public education campaign on caffeine safety.
  • FDA’s webpage on caffeine indicates that 400 mg a day is “not generally associated with dangerous, negative effects,” but that the level of sensitivity can vary widely.
  • Keller and Heckman will continue to monitor this bill and other developments regarding caffeinated beverages.
  • On March 18, 2025, Louisiana introduced Senate Bill 14, a bill that would require products containing artificial dyes, chemical additives, and other ingredients to include a warning label on the product where the substances are banned or not authorized in other countries.  The bill lists 51 different ingredients that would require the warning, including several synthetic dyes, synthetic or artificial vanillin, propylparaben, potassium bromate, melatonin, bleached flour, and others.  Any food items containing any of the listed ingredients would be required to bear the following warning label, “WARNING: This product contains an artificial color, chemical, or food additive that is banned in Australia, Canada, the European Union, or the United Kingdom.” 
  • Additionally, SB 14 would prohibit public schools and non-public schools receiving state funds from serving ultra-processed foods.  The bill defines ultra-processed food as any food or beverage that contains the following: Blue dye 1, Blue dye 2, Green dye 3, Red dye 3, Red dye 40, Yellow dye 5, Yellow dye 6, azodicarbonamide, Butylated hydroxyanisole (BHA), Butylated hydroxytoluene (BHT), Potassium bromate, propylparaben, and titanium dioxide.
  • Some additional provisions of the bill would also require any food service establishment that cooks or prepares food using seed oil to display a disclaimer on the menu or other clearly visible location, prohibit soft drinks from SNAP eligibility, and require physicians and physician assistants to complete continuing education on nutrition and metabolic health.
  • This bill mirrors Texas SB 25, as we’ve previously blogged about, which would also require warning labels on packaged food products containing artificial colors, chemicals, or food additives that do not have a regulatory clearance in other countries.
  • LA SB 14 is the latest in a host of newly proposed bills this legislative cycle targeting synthetic dyes and various other food additives, which, if adopted, will create a divided and complicated regulatory scheme across the country.
  • Keller and Heckman will continue to monitor developments related to state legislative efforts to prohibit food additives.
  • A plaintiff has filed two class actions targeting a dietary supplement promoted as increasing GLP-1. One case is in federal court in New York, while the other is in California state court. Both cases allege false advertising. According to the complaints, Lemme, a brand co-founded by Kourtney Kardashian Barker, offers a product, Lemme GLP-1 Daily, which contains orange extract, saffron extract, and a clinically tested lemon extract.
  • Among other advertising, the complaints point to a product webpage with the headline, “How GLP-1 your ‘un-hunger’ hormone works.” The explanation that follows notes, “GLP-1 helps you feel full and supports glucose metabolism. But factors like age, lifestyle, and diet can affect your body’s ability to produce GLP-1. That’s where we come in.” The complaints also identify social media posts with claims such as, “[T]his will increase your body’s natural GLP-1 level (promotes fat loss + reduces hunger).”
  • The complaints concede that clinical studies exist on the lemon extract in Lemme GLP-1, but the complaints argue that the studies “rely on sample sizes that are far too small to derive valid statistical conclusions.” Also, according to the complaints, even if the studies were valid, after four months, results showed only a “17 percent” increase in GLP-1 and “failed to show any decrease in body weight, body-mass index (BMI), or waist/hip ratio.” The “number of calories consumed did not change” either.
  • The complaints further allege “GLP-1 concentration in the blood increases by approximately 400% to 900% after eating”; thus, it “is unsurprising” that a “mere 17% increase in GLP-1 would have no discernible effect on caloric consumption, BMI, or weight loss.” The complaints also contend that a “1 mg weekly dose of Ozempic or Wegovy results in a concentration of synthetic GLP-1” that is “300,000% to 600,000% greater” than typical concentrations, with a “half-life of 7 days instead of 2 minutes.”
  • Keller and Heckman will continue to monitor activity on advertising around GLP-1.
  • On March 12, the Texas Senate unanimously passed SB 25. While the bill, as currently drafted, does not ban the use of any food additives, it would require food manufacturers to label products that contain certain artificial colors or chemicals, such as titanium dioxide and red 40. Products containing any of the fifty listed substances would have to be labeled with the following text: “WARNING: This product contains an artificial color, chemical, or food additive that is banned in Australia, Canada, the European Union, or the United Kingdom.” If this bill becomes law as currently drafted, this requirement would take effect on September 1, 2025.
  • SB 25 would also establish a Nutrition Advisory Committee for the state, which would “examine the impact of nutrition on human health and examine the connection between ultra-processed foods, including foods containing artificial color and food additives, and the prevalence of chronic diseases and other chronic health issues.” Additionally, the Committee would “develop and maintain dietary and nutritional guidelines” for the State.
  • On March 12, the Texas Senate also passed SB 314, which would prohibit the use of the following food additives in free or reduced-price meals served in Texas public schools: (1) brominated vegetable oil (BVO); (2) potassium bromate; (3) propylparaben;(4)azodicarbonamide; (5) butylated hydroxyanisole (BHA); (6) red 3; (7) red 40; (8) yellow 5; (9) yellow 6; (10) blue 1; (11) blue 2; (12) green 3; (13) caramel; (14) titanium dioxide. If this bill becomes law as currently drafted, the ban would go into effect beginning with the 2026-2027 school year.
  • The Texas House Committee on Public Health is currently considering SB 25 and SB 314. Keller and Heckman will continue to monitor the activity in Texas and report on state bills that impact the food industry.
  • Yesterday the U.S. District Court for the Northern District of California granted summary judgment to FDA and drug manufacturer Elanco Animal Health, thereby rejecting a challenge to FDA’s approval of Experior, a drug intended to reduce ammonia production in feedlot cattle. See 20-cv-03703-RS (Law360 subscription required).
  • Plaintiffs (three advocacy groups) had challenged the approval and argued that FDA failed to comply with the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the National Environmental Policy Act (NEPA) in approving the drug.
  • Specifically, in regard to drug efficacy, the Court held that FDA had properly found that there was substantial evidence supporting approval of Experior for the “reduction of ammonia gas emissions per pound of live weight and hot carcass weight in beef steers and heifers fed in confinement for slaughter during the last 14 to 91 days on feed.”  The conclusion was based on 5 well-controlled studies consisting of a total of 536 animals and the Court held that it was irrelevant that the mechanism of action was not well established and that FDA did not require proof of any particular environmental results.
  • In regard to the safety of the new animal drug, the Court held that FDA appropriately evaluated human food safety, user safety, and target animal safety and that Plaintiffs’ arguments would require the Court to inappropriately second-guess FDA’s judgment.
  • Finally, with regard to NEPA, the Court held that FDA’s Finding of No Significant [Environmental] Impact (FONSI) was a reasoned decision that was not inconsistent with the approval of an ammonia reducing drug.