This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
FDA warns about consumption of copycat products that contain THC. On May 13, the FDA warned consumers about products that appear to be popular food items but actually are imitators containing THC, the psychoactive ingredient of marijuana. The agency said it has received more than 100 reports of children and adults who “accidentally consumed copycat edible products containing THC and experienced adverse events” between January 2021 and April 2022. These incidents included such symptoms as increased heart rate, vomiting and hallucinations, many of which required a doctor’s care or a hospital admission. Some of the products were packaged in ways that were nearly identical to well-known marketed cereals and candies that appeal to children.
Canada allowing higher level of Vitamin D in fortified plant-based beverages. On May 4, Health Canada updated its Interim Policy on the Use of Expired Interim Marketing Authorizations Related to Food Fortification to permit an increased level of vitamin D in fortified plant-based beverages. This is part of a Health Canada strategy to increase the amount of vitamin D in the food supply, to assist Canadians in meeting consumption requirements and to improve bone health. This change follows a Marketing Authorization from January 2022, which allowed cow’s milk and goat’s milk to include more vitamin D. Since fortified plant-based beverages are widely consumed in Canada as a substitute to milk, the revision will permit the level of vitamin D allowed in plant-based beverages to match those amounts now permitted in milk.
Russian blockade of Ukrainian ports means worldwide food shortages. On May 17, Andrew Bailey, Governor of the Bank of England, warned that the world faces an “apocalyptic” food crisis because of the Russian blockade of Ukrainian seaports. His words were among the latest in a cascade of statements from world leaders and international organizations. Global movement of Ukrainian agricultural goods, in particular sunflower oil and grains like wheat and corn, is at a standstill, bottled up by the naval blockade. On May 8, Ukrainian President Volodymyr Zelenskyy said on his Telegram channel that the blockade “is a blow not only to Ukraine. Without our agricultural exports, dozens of countries in different parts of the world are already on the brink of food shortages.” He continued, “We need a global response.” Last year, Ukraine was the world’s sixth largest exporter of wheat, the fourth largest exporter of corn, and the leading exporter of sunflower oil. According to International Grains Council data, nearly 25 million tons of grain is stuck in Ukraine. A small amount is being exported via rail and a few river ports. On May 12, Fortune said a Russian ship carrying grain stolen from occupied Ukrainian territory was in the Mediterranean, seeking to sell its cargo “to the highest bidder.”
Changes being made to Canadian food permit fee collections and applications. The Canadian Food Inspection Agency (CFIA) has announced that it will be making changes to the method of making applications and the timing for fee collection for certain types of permissions. Changes include the following: 1) a service fee will be applied on application (including renewals and amendments) for animal and plant import permits and on application for a Ministerial Exemption for fresh fruits and vegetables; 2) on application for a Ministerial Exemption for fresh fruit and vegetables, the charging fee will be based on the number of loads requested on the application; and 3) applications for animal or plant import permits will only be accepted through My CFIA or postal service.
Tackling food fraud in Canada. In a news release on May 12, 2022, the CFIA reaffirmed its commitment to tackling food fraud in Canada. The CFIA enforces laws in Canada that prohibit the misrepresentation of food, also known as food fraud, which may include mislabelling, adulteration and substitution of food. The CFIA reports that honey, fish, spices, olive oil, and other expensive oils like sesame seed oil and grapeseed oil are commonly reported as having been misrepresented. The CFIA has committed to enhanced surveillance of these types of food products. When products are determined to not be authentic, the CFIA may take corrective or enforcement action, which may include removing the products from Canada, by detaining, destroying or relabelling.
Court finds some parts of a complaint against Sara Lee pre-empted by federal food law. On May 10, the District Court of the Northern District of California rejected part of a consumer class action against Van’s International Foods, the maker of Sara Lee frozen waffles, while permitting another aspect of the case to continue. The plaintiff had alleged that the “10g-PLANT-BASED protein” statement on the waffle package was inherently misleading because the protein is not all digestible by the body. The court found these claims are pre-empted by the federal Food, Drug and Cosmetic Act, which bars state-law requirements that are not identical to federal ones. On the other hand, the complaint had alleged that the waffles’ nutrition facts panel lacks a statement of the required protein content information that is adjusted according to protein digestibility. This concern, the court found, is not expressly pre-empted by federal law.
Arizona Beverages is sued over the labeling of its fruit snacks. On May 9, Arizona Beverages USA LLC and its parent company, Hornell Brewing Co., were hit with a proposed federal class action that claims AriZona fruit snacks are deceptively labeled because they contain more sugar and less real fruit than consumers are led to expect. According to the lawsuit, the front label on packages of AriZona’s Arnold Palmer Half & Half Fruit Snacks and Green Tea Fruit Snacks says the products are “Made with Real Fruit” and that “Fruit Is Our First Ingredient.” The complaint says these claims lead consumers to believe that the snacks are more healthful than similar products. However, the suit alleges, the fruit snacks are “devoid of real fruit” and contain sugar levels comparable to candy. The suit also contends that consumers have overpaid for the fruit snacks since they did not receive the “health-focused treats” they believed they were buying based on the company’s advertising. The case was filed in the US District Court for the Northern District of California.
Appeals court rejects challenge to California’s ban on foie gras. The US Court of Appeals for the Ninth Circuit on May 6 rejected a challenge to California’s ban on foie gras. A three-judge panel of the court ruled by a 2-1 margin that the foie gras ban was not pre-empted by federal law and did not violate the dormant Commerce Clause of the US Constitution. The statute provides that a product may not be sold in California “if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” The panel found that the plaintiffs in the case had not shown any cognizable burden on interstate commerce resulting from the law and also found that the state has an interest in public health and in preventing animal cruelty. The panel also upheld the district court’s ruling that the ban should be read as applying to sales in the state but not to online, phone and fax sales from out of state to California buyers.
Kansas enacts new law on labeling of non-meat alternatives. On May 5, Kansas Governor Laura Kelly signed into law a bill, supported by the cattle industry and unanimously passed in the state House and Senate, that its proponents say intends to protect consumers who may be confused by packaging for plant-based meat alternatives. According to the law, as of July 1, 2022, producers of plant-based meats must include on their labels a disclaimer that is placed in a “prominent and conspicuous font size, in close proximity” to traditional meat terms. These disclaimers can include the words vegetarian, vegan and meatless, among other words and phrases. Without such disclaimers, the food would be considered misbranded. The law applies only to the labeling of “meat analog” products, which are defined as “any food that approximates the aesthetic qualities, primarily texture, flavor and appearance, or the chemical characteristics of any specific type” of meat or meat product.
CSPI begins campaign to get Pop-Tarts off the menu in schools. On April 27, the nonprofit Center for Science in the Public Interest kicked off an online campaign to urge Kellogg’s to stop selling its Pop-Tarts to school meals programs nationwide until the company brings down the amount of added sugars in the product to what the group considers to be safer levels. The group said that the version of Frosted Cinnamon Pop-Tarts Made with Whole Grain that is sold to school programs contains 30 grams of added sugars, or about seven teaspoons, in a package. Excess sugar is known to promote type 2 diabetes, weight gain, cardiovascular disease, tooth decay and other heart problems. “When companies sell dessert for breakfast, they undermine parents’ and schools’ efforts to give kids a healthy start to the day,” said a spokesperson for the group. “Today, parents are saying enough is enough. Please provide healthier options.”
Toronto to receive Canada’s first Michelin Guide. On May 10, Toronto Mayor John Tory announced that restaurants in the city will be eligible to be included in the Michelin Guides beginning this fall. The Guides, published by the French company Michelin, award one to three stars annually to select restaurants and hotels in recognition of their excellence. This is the first time that a Canadian city will be included in the Guides. Inspectors from Michelin America have already started visiting establishments in Toronto. The visits are anonymous. Decisions are based on five criteria: quality of the products, mastery of flavors and cooking techniques, the personality of the chef expressed in the cuisine, value for money and consistency between visits.
New study points to menu disclosures’ impact on greenhouse gas emissions. A study published May 11 on the online journal PLOS Climate found that climate-oriented labels that relate to a food’s carbon footprint can influence diners’ decisions to eat sustainably. This phenomenon, in turn, could help to reduce greenhouse gas emissions on a global scale. In the study, conducted by Ann-Katrin Betz and her colleagues from Maximilians-Universität Würzburg in Germany, 256 volunteers were asked to select one dish from nine hypothetical menus. Some sample menu items included a beef dish with high emission costs, shawarma with medium emission costs, and falafel with low emission costs. The results revealed that the people presented with the emission labels were more likely to choose the low emissions dishes. Betz said that providing these labels is one straightforward thing that restaurant owners can do to reduce greenhouse gas emissions.