Posts By Shook, Hardy & Bacon L.L.P.

Shook Of Counsel John Johnson III will join AIB International's Judi Lazaro for the second webinar in a series on answering frequently asked questions about the U.S. Food and Drug Administration. During the webinar, Johnson and Lazaro will ask each other questions, then they will end the session with an open Q&A. Join the session on Monday, July 26, 2021, from 2:00 to 2:30 p.m. CDT. Register now >>

By Anna El-Zein and John Johnson III Sesame is the ninth Major Food Allergen with the passage of the Food Allergy Safety, Treatment, Education, and Research Act (FASTER) Act on April 23, 2021. Starting on January 1, 2023, any food “introduced or delivered for introduction into interstate commerce” must appropriately declare the presence of “sesame” as a major food allergen. However, the FASTER Act is more than just updating food labels; it also implicates supplier controls, Food Safety or HACCP Plans, sanitation practices and other procedures. With the compliance deadline looming, companies must start thinking about how FASTER affects their procedures sooner rather than later. Under the Federal Food, Drug, and Cosmetic Act (FDCA), a packaged food is misbranded if the label fails to declare the presence of a major allergen, either in the ingredient list or in a “contains” statement. With the addition of sesame to the “Big 8,”…

The U.S. Food and Drug Administration (FDA) has "launched a challenge to spur the development of affordable, tech-enabled traceability tools to help protect people and animals from contaminated foods by enabling the rapid identification of their sources and helping remove them from the marketplace as quickly as possible." The agency has asked "food technology solution providers, public health advocates, entrepreneurs and innovators across the human and animal food supply chain to present food traceability solutions that utilize economic models that are affordable, with costs that are proportional to the benefits received and can scale to encourage widespread adoption." FDA will accept submissions until July 30, 2021, and will select up to 12 winners for the challenge. Winners "will have the opportunity to present their work publicly in a webinar planned for September and their videos will be posted for public viewing."

A Russian cybercriminal group known as a "ransomware as a service" organization attacked JBS SA, the world's largest meat processor, according to the FBI. The attack led several of the company's meat processing plants to halt production for several days. While JBS is "the largest food manufacturer yet to be hit by ransomware," according to the Associated Press, "at least 40 food companies have been targeted by ransomware gangs over the last year." A cybersecurity expert reportedly told the news outlet that food companies are at "about the same level of security as manufacturing and shipping. Which is to say, not very.”

The U.S. Food and Drug Administration (FDA) has issued a compliance policy guide on aflatoxins in human food. "Aflatoxins may occur in food as a result of mold growth in susceptible raw agricultural commodities," the guide explains. "The growth of molds that produce aflatoxins is influenced by environmental factors such as temperature, humidity, and extent of rainfall during the pre-harvesting, harvesting, or post-harvesting periods. Foods most susceptible to molds that produce aflatoxins include: peanuts, corn, some tree nuts including Brazil nuts and pistachios, and some small grains such as rice. Because aflatoxins are known carcinogens to humans, the presence of aflatoxins in foods should be reduced to the lowest levels attainable using modern agricultural and processing techniques." FDA issued guides for aflatoxins in brazil nuts, peanuts and peanut products, and pistachio nuts.

Shook Partner Cary Silverman has authored a report exploring the rise in class actions filed in New York, which, he explains, "is largely a result of lawsuits targeting businesses that sell food and beverages." Class Action Chaos: The Rise of Extortionate Consumer Class Action Lawsuits in New York, created in partnership with the New York Civil Justice Institute, details how "the percentage of class action lawsuits targeting products that New Yorkers place in their shopping carts, grab at a grocery store, or buy at a restaurant has gone up." "Lawsuits claiming that businesses mislead consumers in how they labeled, marketed, or advertised food made up about one-third of deceptive practices class actions in 2015. Now, these 'food court' lawsuits account for about 60% of New York’s consumer class actions – exceeding deceptive practices claims against all other products and services combined. Over 100 food class actions were filed in New…

By Shook Of Counsel Brandon Arber The Massachusetts Supreme Judicial Court has affirmed a lower court's grant of a mistrial in Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc. This was a bone-in-the-hamburger case, causing a broken tooth and multiple surgeries. The lower court had found that the plaintiff's counsel used “so-called 'reptile' litigation tactics" in the closing, including: "But you know what, when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly—shame on them.” "Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict…

New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…

An EU study has examined New Genomic Techniques (NGTs), which can create genetically modified organisms (GMOs), and their potential effects on creating a sustainable food system in Europe. In a press release, Commissioner for Heath and Food Safety Stella Kyriakides said, "The study we publish today concludes that New Genomic Techniques can promote the sustainability of agricultural production, in line with the objectives of our Farm to Fork Strategy. With the safety of consumers and the environment as the guiding principle, now is the moment to have an open dialogue with citizens, Member States and the European Parliament to jointly decide the way forward for the use of these biotechnologies in the EU." The announcement notes that the EU will begin an open consultation "to discuss the design of a new legal framework for these biotechnologies." Among the findings of the study are that "NGT products have the potential to…

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