• A district court judge has granted (Law360 subscription required) Trader Joe’s motion for summary judgment in a class action lawsuit alleging that the company’s dark chocolate bars contain the heavy metals lead, cadmium, and arsenic. In granting summary judgment, the court found that Trader Joe’s “did not have exclusive knowledge that the dark chocolate bars contained or had a material risk of containing heavy metals,” which is a requirement under the applicable state consumer protection laws.
  • In January 2023, Trader Joe’s was hit with 10 class action complaints claiming the company failed to disclose the presence of heavy metals in dark chocolate products. The complaints were consolidated in April 2023, and claims for violations of consumer protection laws in Washington, Illinois, and New York survived a motion to dismiss. Each of the claims under these state laws requires exclusive knowledge of omitted information and excludes claims if that omitted information was reasonably obtainable or easily discoverable by consumers.
  • Trader Joe’s presented articles from as early as 2002 reporting the presence of heavy metals in chocolate products. The judge rejected arguments that the information was not reasonably obtainable because the plaintiffs were not aware that the products contained heavy metals, stating that “[w]hether information on the presence of heavy metals in the products was reasonably obtainable (or easily discoverable) does not depend on what individual plaintiffs were or were not aware of . . . [but] turns on what information was reasonably obtainable or easily discoverable by consumers about the presence of heavy metals in dark chocolate.”
  • The judge did note, however, that if the plaintiffs had alleged that Trader Joe’s failed to disclose a specific amount of heavy metals, high levels of heavy metals, or that the levels exceeded some kind of regulatory threshold, then the information might not be reasonably obtained by consumers.
  • The presence of heavy metals in chocolate has been the subject of studies and lawsuits in recent years, as we have previously blogged. Keller and Heckman will continue to monitor activity related to heavy metals in chocolate and other foods.
  • On March 18, 2025, FDA announced that, at the direction of Health and Human Services Secretary Robert F. Kennedy Jr., it is “taking steps to enhance its efforts to ensure the ongoing quality, safety and nutritional adequacy” of infant formula products as part of a broader review of the U.S. food supply, in what is being referred to as “Operation Stork Speed.”  
  • Key measures include:
    • Nutrient Review: FDA will soon issue a Request for Information to begin a comprehensive review of infant formula nutrients.
    • Increased Testing: There will be increased testing for heavy metals and other contaminants in infant formula and other foods consumed by children.
    • Encouraging Innovation: FDA is urging companies to develop new infant formulas and improve transparency in labeling to better inform consumers and will collaborate with the National Institutes of Health on researching the long-term health outcomes associated with formula feeding of infants.
  • The announcement comes as part of a broader effort to stabilize the supply of infant formula following severe shortages in 2022.  FDA has since implemented a national strategy to increase the resilience of the U.S. infant formula market, including measures to prevent future shortages and improve the integrity of the supply chain.  Operation Stork Speed builds on these efforts, aiming to ensure that families have access to safe and nutritious formula for their infants.
  • Keller and Heckman will continue to monitor developments related to the regulation of infant formula.
  • On March 20, 2025, the Food and Drug Administration (FDA) announced the availability of a Chemical Contaminants Transparency Tool, a database intended to provide users with a list of contaminant levels in the food supply.
  • Contaminant levels, such as tolerances, action levels, and guidance levels, are used by FDA to evaluate potential health risks in food.  If contaminant levels exceed the permissible threshold, FDA will deem the food to be unsafe.
  • The database compiles existing information from several sources, including compliance policy guides, guidance for industry, and the Code of Federal Regulations, into a single reference.  Information includes the contaminant’s name, commodity, contaminant level type, level value, and its reference source.  There are currently 301 records available on the database.
  • According to the news release, under the direction of Secretary Kennedy, the Chemical Contaminants Transparency Tool is one new initiative intended to modernize chemical safety.  The intention behind the database is to offer the American public “informed consent about what they are eating.”
  • Earlier this year lawmakers in Nebraska proposed a bill (LB170) which would end the state’s sales tax exemption for soda and candy. Currently, all food and beverages except prepared foods and vending machine items are exempt from the sales tax.
  • The proposed bill defines candy as a “preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces” but excludes “any preparation that contains flour or that requires refrigeration” to avoid discouraging consumption of healthier snacks like granola and protein bars. (See Deep Dive: Nebraska Legislature committee to discuss ‘Sugar Tax’). Soft drinks are defined as “nonalcoholic beverages that contain natural or artificial sweeteners” but excludes “beverages that contain milk or milk products, soy, rice, or similar milk substitutes or that contain greater than fifty percent of vegetable or fruit juice by volume.”
  • The bill is intended to reduce the state’s budget deficit.  It is opposed by affected industry including the Nebraska Beverage Association.

  • Illinois is moving forward with the Illinois Food Safety Act to ban brominated vegetable oil (BVO), potassium bromate, propylparaben, and Red No. 3, despite FDA’s BVO ban that went into effect in July 2024 with a one-year compliance period. We previously blogged about Illinois’ bill and the FDA revocation of BVO.
  • According to Illinois Secretary of State Alexi Giannoulias, FDA’s ban left enforcement gaps, including lingering sales of BVO-containing products. The Illinois bill would ensure that “families aren’t stuck with unsafe leftovers while the feds catch up.” The Illinois ban is intended to enforce the BVO ban at the retail level and “tackle additional chemicals, potentially setting a precedent for stricter state oversight.”
  • Illinois is not the only state pushing for stricter food additive bans. California banned four additives in 2023, and other states including New York and New Jersey have proposed similar laws. According to the Environmental Working Group, states are “tired of waiting” for FDA to review additives and are “forcing the FDA’s hand.” However, states could face lawsuits claiming federal preemption for the banned chemicals.
  • Keller and Heckman will continue to monitor and report on state and FDA review of food additives.
  • On March 20, 2025, the U.S. Food and Drug Administration (FDA) announced its intention to extend the compliance date for the Food Traceability Rule by 30 months.  This extension aims to provide the food industry with additional time to fully implement the rule’s requirements.
  • The Food Traceability Rule, established under the FDA Food Safety Modernization Act (FMSA), mandates enhanced traceability recordkeeping for entities that manufacture, process, pack, or hold foods listed on the Food Traceability List (FTL) for the purpose of promptly identifying and removing potentially contaminated food from the market.    
  • Notably, in its announcement, FDA made clear that the substance of the rule remains intact, and the only modification is extending the compliance deadline.  The agency will continue to work with stakeholders to provide additional assistance and resources to address challenges with implementation.
  • Keller and Heckman will continue to monitor developments related to the FSMA and the Food Traceability rule.
  • On March 19, 2025, the West Virginia Senate and House sent HB 2354 to the governor for final approval, which proposes banning various food additives and synthetic dyes.
  • The bill would prohibit the sale of any food product in the state that contains butylated hydroxyanisole (BHA), propylparaben, Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2, or Green No. 3.  If enacted, the legislation would apply to food products in school nutrition programs beginning August 1, 2025, then extend to all food products in the state on January 1, 2028.
  • While there was some push back arguing that the state should wait for changes to come top down from the U.S. Food and Drug Administration (FDA) and that the ban will cause food prices to go up or limit the competitiveness of the state, the voting pattern shows that the opposition was minimal.  This article by West Virginia Watch stated that Senator Barrett, who spearheaded the effort, feels confident that the Governor will sign HB 2354.
  • The West Virginia bill is the latest state legislative effort to regulate food dyes, following California, Utah, Florida, and Virginia.
  • If passed, Maine’s SB130, titled An Act to Establish the PFAS Response Program and to Modify the Fund To Address PFAS Contamination, would be the first state law to establish PFAS limits in food (PFAS limits have been established for other categories of goods).
  • The bill would formally establish a PFAS response program to “respond to and address PFAS contamination affecting agricultural producers in the State, to assist commercial farms affected by PFAS contamination and to safeguard public health.” We note that the bill would in part codify existing portions of Maine’s PFAS response program, which has already set an action level for PFOS (a type of PFAS) in milk of 210 ppt. 
  • Specifically, under the proposed bill, the PFAS response program would, among other things:
    • Establish maximum levels for PFAS in farm products (defined as “plants and animals useful to humans” and includes, by way of example, products ranging from grains and food crops to Christmas trees).
    • Provide PFAS testing support to help agricultural producers understand the extend of PFAS contamination and provide technical support to assist in mitigation efforts.
    • Provide financial assistance to PFAS-impacted agricultural producers.
    • Establish baseline criteria that agricultural producers would have to adhere to in order to receive technical and financial assistance, including granting property access to conduct PFAS investigations and providing relevant information to program staff.
  • We will continue to monitor and report on PFAS regulation.
  • On March 7, 2025, FDA announced that is has no questions regarding a human food product made from cultured pork fat cells, finding that the defined production process results in a product that is as safe as comparable foods produced by other methods. The cultured cells are produced in a controlled environment using belly fat cells from domestic Yorkshire pigs to create cultured pork fat.
  • In addition to a pre-market consultation, FDA has inspected the facility where pork fat cells are cultured and grown and intends to conduct additional inspections after commercial production begins and on an ongoing basis. Before the product can be marketed for use in food, it must also meet USDA regulations as outlined in the joint agreement between USDA and FDA establishing the agencies’ shared oversight of food made with cultured animal cells.
  • FDA’s pre-market consultation process for food made with cultured animal cells allows developers to work with the Agency on a case-by-case basis to ensure they are producing food that does not violate the Federal Food, Drug, and Cosmetic Act. During the process, FDA evaluates the production process and resulting cell material, including the establishment of cell lines and cell banks, manufacturing controls, and reviews all components and inputs.
  • This is the third product made using cultured animal cells for which FDA has concluded it has no questions regarding the safety, following the first for a product made from cultured chicken cells in 2022. Keller and Heckman will continue to provide updates on the development of cell cultured meat products.
  • On March 10, 2025, the Secretary of the Department of Health and Human Services (HHS), Robert F. Kennedy Jr., met with executives at major companies across the food and beverage industry, including PepsiCo, General Mills, and others.  He informed industry leaders that eliminating artificial dyes is going to be a top priority for the Secretary.  Kennedy also expressed his desire to collaborate with industry but made it clear that he intends to act unless the industry proactively offers solutions. 
  • The movement to ban synthetic dyes has recently gained momentum, with California and FDA banning FD&C Red No. 3 as we previously blogged, as well and several states moving to ban foods that contain artificial dyes from school lunches.  
  • The public discussion regarding food colors has grossly misstated differences in the regulation of synthetic dyes in food, with critiques often pointing to the EU or Canadian markets as examples of regions that are more restrictive with food color regulation.
  • However – there are current 15 synthetic dyes approved in the European Union, 10 in Canada, and only 9 approved in the U.S.
  • Additionally, all food colors in the U.S. must submit a Color Additive Petition to FDA.  
  • While the EU and Canada have premarket requirements for many food colors, naturally derived concentrates and extracts in many cases are exempt from mandatory pre-market review in Canada.  
  • In the EU, ingredients that are derived from edible sources and are used because of their coloring properties are defined as “coloring foods,” which are not subject to a European Food Safety Authority (EFSA) evaluation prior to use and are not assigned an E number.
  • Keller and Heckman will continue to monitor the development of the new administration’s policy priorities and actions related to synthetic dyes and other food additives.