• On August 31, 2026, more than 250 food retailers signed a letter to the United States Department of Agriculture (USDA)  to delay its implementation of its final rule on Updated Staple Food Stocking Standards for Retailers in the Supplemental Nutrition Assistance Program (SNAP) by six months.
  • If no action is taken, USDA’s new policy is set to go into effect on November 4 and key changes include:
    • Increase in required varieties: Retailers must now stock at least seven varieties in each of the four staple food categories, up from three.
    • Updated definition of “variety”: USDA has issued detailed guidance regarding what constitutes a distinct variety within each staple food category. For example, different dairy products such as milk, yogurt, cheese, and infant formula may count as separate varieties, and certain categories have been further subdivided.
    • Perishable food requirement: Retailers must offer at least one perishable variety in at least three of the four staple food categories.
    • Minimum stocking units remain: Each qualifying variety must still be stocked in the required minimum quantities, and retailers must maintain the required inventory on a continuous basis.
    • Accessory foods excluded: USDA clarified that certain products, including snack bars, jerky, cheese dip, fruit spreads, butter, and similar items, do not count toward the staple food stocking requirements, even though they may remain SNAP-eligible for purchase.
  • Historically, retailers generally needed to stock at least three varieties of staple foods in each of the four staple food categories (fruits/vegetables, dairy, protein, and grains/breads), while also meeting minimum stocking quantity requirements for each qualifying item.
  • On September 4, 2026, USDA published new guidance and examples illustrating compliant stocking configurations.  USDA also stated additional guidance is forthcoming.
  • A coalition of Plaintiffs, including non-profit organizations and unions representing USDA employees, filed suit against USDA and USDA Secretary Rollins in the U.S. District Court for the Northern District of California, alleging that USDA’s planned reorganization is unlawful.
  • The lawsuit alleges that USDA sought congressional authorization for the reorganization and was expressly rejected but nevertheless proceeded with the reorganization plan. It also alleges that the reorganization was arbitrary and capricious because the decisions were made without any analysis of their impact on the agency’s functions and ability to meet its statutory mandates. It alleges that the reorganization plan, which relocates offices, anticipates that many employees will not relocate and is intended to reduce the size of the USDA workforce.
  • Plaintiffs filed another lawsuit, AFGE v. Trump, No. 25-cv-03698-SI (N.D. Cal.), earlier this year which more broadly challenged the Trump administration’s reorganization of the federal government. This lawsuit was filed after the court presiding that case determined that the USDA reorganization claims should be brought as a separate suit.
  • Keller and Heckman will continue to monitor and report on USDA’s reorganization and any challenges to it.
  • The Reagan-Udall Foundation recently released a report summarizing lessons learned following investigations into 2025 and 2026 infant formula recalls due to the presence of Clostridium botulinum (C. botulinum). The report follows a July 13, 2026, roundtable in which participants representing the infant formula industry, academia, consumer advocacy groups, and FDA discussed these recalls and provided recommendations to increase the understanding of risks and strengthen controls in the infant formula supply chain.
  • The report focuses discussion in five key areas: (1) C. botulinum state of the science; (2) data sharing; (3) a collaborative, multifactorial approach to maintain infant formula safety; (4) FDA collaboration; and (5) potential next steps. The report outlines current challenges and includes recommendations in each of these areas to “advance research, establish standardized and fit-for-purpose testing methods, strengthen data sharing, validate preventive controls, and improve collaboration across industry, academia, and government.”
  • According to the report, the recent infant formula recalls have quickly accelerated knowledge relating to testing for C. botulinum in infant formula powder, as well as safety throughout the supply chain. The report emphasized that industry-wide collaboration is essential to develop “solutions that are scientifically credible, operationally and economically feasible, regulatorily sound, and grounded in risk-based decision-making.”
  • Keller and Heckman will continue to report on updates related to infant formula manufacturing and general food safety.
  • On August 31, 2026, the U.S. Food and Drug Administration (FDA) and the U.S. Securities and Exchange Commission (SEC) entered into a Memorandum of Understanding (MOU) to establish a formal framework for sharing nonpublic information between themselves related to FDA-regulated products and activities. 
  • According to the press release, the MOU is designed to assist the agencies in “carrying out their respective missions of ensuring the integrity of the financial markets and protecting public health.”  For example, the MOU will help them detect situations where a company may have made false or misleading statements to investors related to “the status of FDA review, product approvals, clinical trial results, or other matters within the FDA’s regulatory authority that could affect investors’ decisions” (see MOU, Background).  Although FDA and SEC have historically coordinated in exchanging information, the MOU formalizes infrastructure that will make this exchange faster and easier.
  • The following are some key provisions from the MOU:
    • Information Sharing:  The agencies agree to share “appropriate information” related to FDA-regulated products and activities, and persons and firms who manufacture, distribute, and sell FDA-regulated products, with the other party, where practicable.
    • Dedicated Points of Contact:  Each agency will designate a principal point of contact to facilitate the information requests.
    • Confidentiality Controls:  Nonpublic information shared under the MOU may not be further disclosed without the providing agency’s written permission. The MOU includes detailed protocols for responding to FOIA requests, subpoenas, congressional inquiries, and other compulsory process.  These would require prompt notification to the providing agency and cooperation in asserting the applicable privileges.
  • The MOU will be effective for three years until August 31, 2029, but may be extended, modified, or terminated by the agencies at any time with 30 days’ notice.
  • Keller and Heckman will continue to relay any developments related to FDA regulation and enforcement.
  • In June the U.S. District Court for the District of Columbia vacated five state Supplemental Nutrition Assistance Program (SNAP) waivers granted by USDA. The waivers permitted states to exclude certain foods deemed to be unhealthy from the scope of their SNAP programs, which the district court held exceeded USDA’s legal authority.
  • On August 21, 2026, USDA filed an appeal of the decision with the U.S. Court of Appeals for the District of Columbia. The parties have not yet briefed the issues. 
  • The June district court decision only vacated the waivers granted to Colorado, Iowa, Nebraska, Tennessee, and West Virginia, but the decision cast doubt on the legality of similar waivers granted to other states.
  • The target implementation dates for the South Carolina and North Dakota SNAP waivers were August 31, 2026, and September 1, 2026, respectively. However, it has been reported that USDA has asked these states to delay implementation of the waivers until November 1, 2026, during which time USDA plans to publish federal register notices regarding the waivers and consider public comment.
  • Many SNAP waivers are already in effect. Indeed, the Arkansas SNAP waiver went into effect on July 1, 2026, only 9 days after the court ruling. State officials maintained that the court ruling does not apply to the Arkansas waiver.
  • The California Legislature has passed Assembly Bill 2244 (AB 2244) to establish a “non-ultra-processed food” certification seal. California Governor Gavin Newson will now have until the end of September to either sign or veto the bill.
  • The bill was introduced in March 2026, as we previously blogged, and would permit food products in the state to bear a “California Certified” seal that is modeled after the “USDA Organic” seal. The seal is “intended to provide consumers with a way to quickly identify ‘healthier’ food options.”
  • If signed into law, the bill would require the California Department of Public Health to accredit certification agents no later than June 1, 2029, and to create the standardized “Non-Ultraprocessed Certified” seal. It would also require grocery stores to make at least three certified food products clearly identifiable such that they are readily distinguished from other products through physical separation, signage, or other visual cues.
  • The bill would also create a Public Health Food and Nutrition Education Fund, which would use registration fees from certification agents to support implementation and education about the label requirements, food products, and nutrition.
  • Keller and Heckman will continue to monitor this and other food related legislation.
  • On August 17, 2026, an individual consumer submitted a citizen petition to the U.S. Food and Drug Administration (FDA) requesting that the agency designate pea protein, including pea protein isolate, pea protein concentrate, and pea flour, as a major food allergen requiring mandatory disclosure in allergen labeling.
  • The petition asks FDA to exercise its authority under section 403(w)(7) of the Federal Food, Drug, and Cosmetic Act to require manufacturers to identify pea protein through clear “Contains” allergen statements on packaged foods. Currently, pea protein is not among the allergens subject to the mandatory labeling requirements established under the Food Allergen Labeling and Consumer Protection Act (FALCPA) and the Food Allergy Safety, Treatment, Education, and Research (FASTER) Act. Those laws currently require labeling for milk, egg, fish, crustacean shellfish, tree nuts, wheat, peanuts, soybeans, and sesame.
  • According to the petition, the increasing use of pea protein in plant-based food products has created challenges for some consumers with pea allergies and other legume sensitivities. The petitioner cites recent product reformulations in which pea protein was introduced into products that had previously relied on soy protein or contained no concentrated pea ingredients. The petition describes examples involving plant-based butter substitutes and vegan mayonnaise products and argues that consumers may not anticipate the presence of pea protein in foods that were previously considered safe.
  • The petitioner further contends that pea protein has become more common in a wide range of foods, including plant-based dairy alternatives, baked goods, and other packaged products. The petition points to reports of IgE-mediated allergic reactions associated with peas and argues that mandatory allergen labeling would help consumers more readily identify products containing pea-derived ingredients.
  • FDA acknowledged receipt of the petition in a letter dated August 26, 2026. As is customary, the agency stated that acceptance of the petition for filing is a procedural matter and does not reflect any determination regarding the substantive merits of the request. The petition has been assigned Docket No. FDA-2026-P-9901, and interested stakeholders may submit comments to the docket through Regulations.gov.
  • Keller and Heckman will continue to monitor developments related to FDA food allergen labeling requirements and any agency response to the petition.
  • On August 24, 2026, two more companies were sued over claims of “0g sugar” where the products contain “allulose.”
  • Earlier last month, the Seventh United States Circuit Court of Appeals in Illinois revived a proposed class action finding that allulose, a naturally occurring sweetener in yogurt, constitutes a sugar under federal regulations.  The inclusion of allulose in the calculation of sugars would disqualify the product from being labeled as “sugar free” because the sugar content would exceed the “less than a half gram of sugar” requirement for such a label.
  • FDA advises in its guidance The Declaration of Allulose and Calories from Allulose on nutrition and Supplement Facts Labels, it intend to exercise enforcement discretion for the exclusion of allulose from the amount of “Total Sugars” and “Added Sugars” declared on the label. For more information on FDA’s Final Guidance on Allulose, please see FDA Issues Final Guidance on Allulose and Solicits Information for Rulemaking on Nutrition Labeling for Sugars That are Metabolized Differently Than Traditional Sugars | The Daily Intake.
  • These similar arguments are now being brought in the Northern District of California and Central District of California over “0g Sugar’ claims on energy drinks and “Zero Added Sugar” claims on cereals.
  • All three cases are still in court.  Keller & Heckman will continue to monitor lawsuits that target sugar claims on products that contain allulose.
    • News outlets including the Washington Post have reported that President Trump’s nomination of Dr. Heidi Overton has been criticized by some elements of the Make America Healthy Again (MAHA) movement who regard her as an establishment figure who has stymied some of their initiatives.
    • Chief among the complaints has been her alleged involvement in drafting a February 2026 executive order which declared the production of elemental phosphorus and glyphosate-based herbicides as critical to the national defense. Glyphosate is an effective herbicide and the active ingredient in Roundup. The executive order found that there were no direct alternatives and that its use is critical to national agricultural productivity.
    • The safety and use of glyphosate has been subject to much litigation, including a June 2026 Supreme Court decision which held that state-law failure to warn claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The U.S. Environmental Protection (EPA) has not identified risks of concern from glyphosate uses, including with respect to cancer, a conclusion that has been echoed by other international agencies including the European Food Safety Authority (EFSA).
    • Kush Desai, Special Assistant to the President & Senior Deputy Press Secretary, denied that Dr. Overton was primarily responsible for drafting the executive order and instead stated that she “pushed as many MAHA-minded edits as possible to a mostly-baked EO that, again, was written with national security considerations in mind.” He also stated that “Pretty much every MAHA win by this Administration absolutely would not have been possible without Heidi often singlehandedly running interagency policy processes.”
    • Keller and Heckman will continue to monitor and report on the confirmation process for FDA commissioner.
    • On August 19, 2026, the Physicians Committee for Responsible Medicine (PCRM) filed a lawsuit against the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia, seeking to have the recently issued Dietary Guidelines for Americans 2025-2030 withdrawn.
    • PCRM alleges that HHS and USDA improperly departed from the traditional Dietary Guidelines development process by relying on a group of outside reviewers that was assembled without the transparency and public oversight required under the Federal Advisory Committee Act (FACA). According to the complaint, this group, which PCRM refers to as a “Secret Panel,” included individuals with ties to the meat, dairy, and diet industries and played a significant role in developing The Scientific Foundation for the Dietary Guidelines for Americans, 2025-2030, a report that allegedly diverged from the findings of the Dietary Guidelines Advisory Committee’s scientific review.
    • The lawsuit claims that the agencies violated FACA and the Administrative Procedure Act by relying on recommendations developed outside the public advisory committee process. PCRM is asking the court to order HHS and USDA to withdraw the current Dietary Guidelines, issue new guidelines through a FACA-compliant process, and disclose documents relied upon by the reviewers.
    • This lawsuit continues PCRM’s longstanding scrutiny of the Dietary Guidelines process. The organization has challenged several prior editions of the Guidelines and earlier this year petitioned the Offices of Inspector General at HHS and USDA to withdraw the 2025-2030 Guidelines, citing alleged industry influence.
    • Keller and Heckman will continue to monitor developments related to the Dietary Guidelines and other challenges to Agency actions.