YOUR SOURCE ON FOOD LITIGATION AND REGULATION

As promised and on time, the US Food and Drug Administration (FDA) and the US Department of Agriculture (USDA) issued an agreement on March 7 describing in some detail the division of responsibility between the two agencies over the emerging and much-talked-about category of human food produced using cell culture technology derived from cell lines of USDA-amenable species of meat and poultry. The document contains no real surprises and, as is often the case with such materials, tends to raise as many questions as it answers. Nonetheless, it provides the clearest delineation to date on the particulars of just how the safety, suitability, and marketing of such products is to be overseen by the two agencies.

With a focus upon the emerging cell-cultured meat industry, there has been considerable recent discussion about the significance of jurisdictional differences at the federal level between the US Department of Agriculture and the US Food and Drug Administration. But what now appear to be moving on a parallel track are various recently enacted laws or proposed legislation at the state level designed to impose new labeling requirements and/or restrictions for meat-alternative products, both cell- and plant-based, generally designed to restrict access to traditional terminology such as “ground beef” on such products' labels.

The pending and still tentative resolution of jurisdictional issues between the US Department of Agriculture (USDA) and the Food and Drug Administration (FDA) surrounding cell-cultured meat and poultry products should address one of the three core regulatory issues confronting this emerging industry. Assuming that it holds, a resolution will establish an overarching role for FDA in the broad assessment of the technology in order to ensure that it is safe. Once the foods themselves enter the production stage, ongoing inspection authority and related jurisdiction will revert to the USDA through the Food Safety and Inspection Service (FSIS) if the cell-cultured items in question replicate the traditional meat and poultry items that currently fall within that agency’s jurisdiction.

As readers are undoubtedly aware, the Centers for Disease Control (CDC) issued a Food Safety Alert (Alert) on November 20 due to a multistate outbreak of E. coli-related infections linked to romaine lettuce. The CDC alert associated the product with 32 illnesses and 13 hospitalizations. Further, it advised consumers not to consume any romaine lettuce and advised retailers and restaurants not to serve or sell it. By rendering such products unsellable, the alert raised immediate questions concerning the identity of parties forced to bear the risk of loss. The issue has been addressed by the US Department of Agriculture’s (USDA) Perishable Agricultural Commodities Act (PACA) Division through FDA Advisory Alert on Romaine Lettuce and the PACA (PACA Announcement).

On October 29, US Food and Drug Administration (FDA) Commissioner Scott Gottlieb announced that FDA is considering whether sesame should be disclosed on food labels as an allergen. Because sesame is not identified as a “major food allergen” under the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA), the ingredient is not always required to be stated on the food label. Rather, in some cases, sesame can be listed generically as “spice,” “natural flavor,” “tahini,” or other nonspecific ingredient names, which can lead to consumer confusion and uncertainty.

The US Food and Drug Administration (FDA) and US Department of Agriculture (USDA) issued a joint statement on November 16 indicating that both FDA and USDA will jointly oversee the production of cell-based food products derived from livestock and poultry. The proposed regulatory framework generally involves the FDA overseeing cell collection, cell banks, and cell growth/differentiation, and USDA overseeing the production and labeling of the food products following cell harvest. While it is encouraging to see the agencies working together to resolve this threshold question, it simply sets the stage for further evaluation of any number of challenging questions.

On November 6, the US Food and Drug Administration (FDA) announced that its final guidance on Questions and Answers Regarding Mandatory Food Recalls: Guidance for Industry and FDA Staff (Mandatory Recall Guidance) is now available. The Mandatory Recall Guidance provides information on the implementation of the mandatory food recall provisions of the Food Safety Modernization Act (FSMA). The Mandatory Recall Guidance comes in the form of a Q&A on common topics about the FSMA’s mandatory recall provision.

Sonic Drive-In reached a $4.3 million settlement on October 10 with its customers over the chain’s data security breach in 2017 that exposed customer credit and debit card information at 325 Sonic Drive-In locations.[1] The attack followed a pattern familiar in the retail and restaurant context, where hackers infect the point-of-sale system with malware that copied and transmitted the information from consumers payments cards when used to make a purchase. Plaintiffs filed several class action lawsuits for violations of state consumer protection laws and data breach notification statutes, along with various common law causes of action. The lawsuits were consolidated into a multidistrict litigation proceeding in the Northern District of Ohio in early 2018.

The US Food and Drug Administration issued a draft guidance document on September 6 stating it will allow use of the colony forming units (CFUs) unit of measure in the Supplement Facts panel. The draft guidance applies to what are colloquially known as “probiotics,” or dietary supplement products that contain a live microbial dietary ingredient. Under current regulations, dietary supplement ingredients can only be quantified by weight in the Supplement Facts panel. However, the use of weight to measure live microbial dietary ingredients can be inaccurate or confusing because weight does not distinguish between live and dead microorganisms, and does not reflect the occurrence of cell death of live microorganisms over the course of a product’s shelf life.

However, CFUs describe the quantity of live microbial dietary ingredients, and can help consumers identify the amount of living microorganisms in each product and make comparisons across dietary supplement products on the basis of that information. Accordingly, while FDA considers whether to conduct rulemaking to formally change the unit of measure, it will allow use of CFUs in the Supplement Facts panel of probiotics under certain conditions. For more information on the circumstances in which CFUs may be used, as well as other information on the guidance, please read our LawFlash, FDA: Probiotic Products Can Use CFUs on Supplement Facts Panel.

In recent months, questions about the potential future marketing of what will be termed herein “cell-cultured meat” (CCM) have moved outside the confines of biotech laboratories and tech funders’ boardrooms and caught the attention of both regulators and a much broader segment within the general public. As the regulatory future of such products starts to come into focus, debates and discussions have been generated within the food industry over three interlocking issues:

  1. Jurisdiction: What federal agency should be responsible for overseeing such products?
  2. Oversight: How should such products be regulated?
  3. Labeling: How are they to be identified to the consumer?

For a more comprehensive discussion of the emerging regulatory landscape for CCM read the article by Morgan Lewis lawyers Robert Hibbert and Amaru Sanchez in Food Quality & Safety magazine.

As always, if you have any questions, please do not hesitate to contact us.