YOUR SOURCE ON FOOD LITIGATION AND REGULATION

On May 18, 2017, New York City announced plans to begin enforcing its updated local menu labeling rule,[1] just weeks after FDA announced the postponement of the compliance date for a similar federal menu labeling rule, from May 2017 until next year.[2] These two actions potentially raise novel and significant issues of federal preemption.

More specifically the city’s planned enforcement measures could well be in conflict with an express federal preemption clause at 21 U.S.C. § 343-1, which states that “no State or political subdivision of a State may directly or indirectly establish . . . any requirement for nutrition labeling of food that is not identical to the requirement of section 343 (q) of this title [which contains restaurant menu labeling requirements].” On its face, the NYC menu labeling requirements differ in at least some material respects from those specified in the federal rule. For example, the city’s rule affects food service establishments that are part of chains with 15 or more locations in the United States, whereas the federal rule applies to chains with 20 or more locations. But more fundamentally, NYC will quite arguably be enforcing rules that Congress has determined should fall within the exclusive province of FDA.

Continuing the pattern of delays in the implementation of a compliance date for the menu labeling final rule requirements (previously covered in our posts, FDA Delaying Enforcement (Again) for Menu Labeling Final Rule (March 2016) and LawFlash: FDA Issues Menu Labeling Final Guidance (May 2016)), FDA has issued an interim final rule (to be published on May 4, 2017) again extending the compliance date for menu labeling requirements by one year—from May 5, 2017 to May 7, 2018.

When the makers of Chicken of the Sea and Bumble Bee seafood products publicly announced their intended $1.51 billion merger in December 2014, no one could have foreseen the complications that followed. The transaction would have created one of the world’s largest seafood companies and, at the time, leaders of the companies touted the size of the deal and how it would help to improve operating efficiencies in sourcing and production, and in making further expansions in the North American markets.

On March 31, FDA published a final guidance document on acceptable unique facility identifiers (UFIs) for Foreign Supplier Verification Programs (FSVPs).[1] FDA states in the guidance that it now formally recognizes the Dun & Bradstreet (D&B) Data Universal Numbering System (DUNS) number as an acceptable UFI for FSVP.

In the last few years, food and beverage companies have been defending against a new trend of claims related not to the products they manufacture, but the packages in which the products are sold. Recently filed class action complaints allege that food and beverage manufacturers are reducing the amount of product inside opaque containers but not reducing the size of the containers, or that the manufacturers do not adequately fill the containers. Classic examples include bags of chips or boxes of rice with extra container space that is only visible once the package is open.

This extra space is known as “slack-fill.” The US Food and Drug Administration (FDA) defines slack-fill as the difference between the actual capacity of a container and the volume of the product contained therein. 21 C.F.R. § 100.100. Under the FDA’s regulations, a “container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill.” Id. The FDA recognizes that some slack-fill does have a purpose. Thus, functional slack-fill, such as the extra space that is intended to help protect the contents of the package or that is the result of unavoidable product settling, is exempt from the FDA’s regulations. See id. The State of California also prohibits nonfunctional slack-fill in food packaging, but defines “nonfunctional slack-fill” as the empty space in a package that is filled to “substantially” less than its capacity. Cal. Bus. & Prof. Code §§ 12606, 12606.2.

Food Chemical News spoke with Bob Hibbert about his thoughts on what the regulatory climate under the Trump administration means for the food industry—particularly for USDA’s Food Safety and Inspection Service (FSIS) and the meat and poultry industry the agency oversees.

Read the full interview >>
(reproduced with permission)

Recent public controversy surrounding an issue many readers would probably rather not hear about—whether it is acceptable to use heart meat in products labeled as “ground beef”—has raised a series of questions involving not simply what might wind up on your grill this summer, but also how USDA’s Food Safety and Inspection Service (FSIS) goes about developing, changing, and publicly announcing policy developments and changes in the labelling of the meat and poultry products it regulates.

A bit of personal history is in order: This author, formerly in government service, signed off on the FSIS policy memo in 1981,[1] which unequivocally stated that “heart meats were not to be allowed as a constituent of [a ground beef] product so labeled.”

As our Canadian neighbors gaze south across the border, their minds are no doubt filled with countless questions over what can safely be described as the unusual political circumstances that currently prevail within the United States.

Read the Canadian Meat Business article >>

On December 1, the US Department of Agriculture's (USDA’s) Food Safety and Inspection Service (FSIS) issued a proposed rule to amend the nutrition labeling regulations for meat and poultry products (Proposed Rule). The revisions in the Proposed Rule are meant to parallel, to the extent possible, the US Food and Drug Administration’s (FDA’s) two similar final rules concerning nutrition fact labels (Nutrition Labeling Rules).1

Some notable similarities between provisions in the Proposed Rule and FDA’s Nutrition Labeling Rules include, but are not limited to, the following:

  • Updating the list of nutrients required or permitted to be declared (e.g., no longer requiring declaration of Vitamins A and C but requiring declarations for Vitamins D and Potassium) and updating Dietary Reference Values (DRVs) and Reference Daily Intakes (RDIs) that are based on current dietary recommendations2
  • Requiring the declaration of trans fat in the Nutrition Facts label
  • Requiring the declaration of added sugars
  • Establishing a new definition of “dietary fiber”
  • Modifying the nutritional labeling format for certain nutrition information (e.g., calories, serving size, and servings per container) prominence, and changing the order of the “Serving Size” and “Servings Per Container” declarations
  • Requiring mandatory dual-column labeling on certain packages of meat and poultry products (i.e., products that contain 200–300% of the applicable reference amounts customarily consumed (RACC))
  • Amending the requirements for foods represented or purported to be specifically for children under the age of four years, and pregnant and lactating women

The Final Rules implementing the Food Safety Modernization Act (FSMA) issued over the last several years contain numerous requirements, compliance dates, definitions, applicability guidelines, extensions, and related guidance. For your comprehensive reference, we’ve drafted a summary of the Final Rule information and requirements. We are continually monitoring FSMA developments and can assist you with questions regarding the items in the summary.

Read the Final Rule summary.