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On August 14, the federal government, through the Department of Justice (DOJ), filed a Statement of Interest in a lawsuit between a group of food industry trade associations and New York City regarding the city’s food chain menu labeling rule, which requires certain food establishments to post calorie information and other nutritional information.[1] The lawsuit arose following NYC’s announcement in May that it would begin to enforce its own local menu labeling rule after FDA delayed the enforcement date of a similar federal menu labeling regulation for the third time. The trade associations sought an injunction to block NYC from enforcing its rule, and in its recent filing, the DOJ stated its agreement that the NYC rule should be barred on preemption grounds.

Last week FSIS’s Revised Nutrition Facts Panel proposed rule was placed on the list of “inactive” regulations, indicating that the rule is no longer a priority and will be reconsidered at an unspecified time in the future.[1] This notice comes after FDA announced last month that it would be postponing the compliance date for its Nutrition and Supplement Facts Label rule and Serving Size rule from July 2018 to an undetermined implementation date.[2]

The current unsettled status of restaurant menu labeling rules may be headed toward some form of resolution. FDA first promulgated a final federal menu labeling rule in December 2014 requiring that calorie information be posted on menu labeling boards in covered food retailers. The agency subsequently delayed the compliance date to December 2016, and again to May 2017. On May 4, 2017, the day before the rule was to take effect, FDA delayed the rule again, this time to May 7, 2018.[1] In response, on May 18, New York City announced it would begin to enforce its own local menu labeling rule.[2] Current circumstances have left retailers uncertain about how to proceed. Can a federal agency delay a final federal regulation for an indefinite period? Does a delayed federal regulation have preemptive effect over a local or state rule?

USDA’s Agricultural Marketing Service (AMS) posted 30 questions for stakeholder input regarding the establishment of a national disclosure requirement for identifying bioengineered foods and food ingredients. The legislation requiring the disclosure of bioengineered foods was enacted on July 29, 2016, and gave AMS two years to establish a national standard and the procedures necessary for implementation (see our LawFlash, New GMO Legislation Signed Into Law, for more information on the legislation). AMS is now seeking input from stakeholders in order to issue a proposed rule this fall, such that it may promulgate a final rule by the mandated July 2018 deadline.

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)