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

The New York State Department of Health released proposed regulations that would govern cannabinoid hemp products. The regulations would establish licensing for cannabinoid hemp extractors, manufacturers and retailers and set limits on products permitted to be sold at retail. Food products would be limited at 25 mg of cannabinoids, and all cannabinoid hemp products would be required to bear labels listing the amount of cannabinoids in the product. "These regulations are the next step toward regulating the growing hemp industry in New York in a way that protects consumers and helps ensure the industry's long-term viability," said Governor Andrew Cuomo in a press release.

A California federal court has ordered the U.S. Food and Drug Administration (FDA) to conduct an assessment on the effects that could ensue if genetically engineered (GE) salmon escaped aquaculture farms and established themselves in the wild. Inst. for Fisheries Resources v. FDA, No. 16-1574 (N.D. Cal., entered November 5, 2020). The court found that the agency did not "meaningfully analyze what might happen to normal salmon in the event the engineered salmon did survive and establish themselves in the wild," "[e]ven if this scenario was unlikely." The court noted that FDA knew that AquaBounty was likely to establish additional farms. "Obviously, as the company’s operations grow, so too does the risk of engineered salmon escaping. Thus, it was particularly important at the outset for the agency to conduct a complete assessment of the risks posed by the company’s genetic engineering project, including an assessment of the consequences for normal salmon…

A group of researchers has published a study in Pediatrics examining the "frequency with which kid influencers promote branded and unbranded food and drinks during their YouTube videos and assess the nutritional quality of food and drinks shown." Alruwaily et al., "Child Social Media Influencers and Unhealthy Food Product Placement," Pediatrics, November 2020. The researchers reviewed the 50 most-watched videos and 50 videos featuring food and beverages in the thumbnail image from each of the five most-watched YouTube personalities aged 3 to 14, ultimately identifying 179 videos including food. "The 179 videos that featured food and/or drinks were viewed >1 billion times and generated 2.6 million likes on YouTube," the report states. "Food and/or drink product placements in those kid influencer videos generated ∼16.5 million impressions for items that were mostly unhealthy branded products." "Our findings suggest the need for future experimental studies to examine the extent to which viewing these types of videos…

New Jersey Governor Phil Murphy has reportedly signed a law banning single-use plastic and paper bags and imposing limits on other food containers and straws. Effective May 2022, the law will ban the use of polystyrene food and drink containers, and single-use plastic straws may only be provided upon request beginning in November 2021. Some products will be exempt until 2024, including meat and fish trays, food prepackaged in polystyrene by the manufacturer, polystyrene soda spoons used for thick drinks and portion cups for foods requiring a lid.

A California federal court has dismissed without prejudice a lawsuit alleging Kellogg Sales Co. misleads consumers as to the characterizing flavor of its Bear Naked V'Nilla Almond granola, finding that the plaintiff could not support his allegation that the product does not contain sufficient amounts of vanilla. Zaback v. Kellogg Sales Co., No. 20-0268 (S.D. Cal., entered October 29, 2020). The plaintiff alleged that the image of vanilla beans on the granola packaging misleadingly implied that "real vanilla derived exclusively from vanilla beans" was the only characterizing flavor. The court had previously dismissed the "allegation that merely because vanilla is expensive Kellogg would have included vanilla on the Product’s ingredient list" and instead assessed the plaintiff's argument that Kellogg "admitted" the product did not contain sufficient vanilla to flavor the granola. "The 'admission' boils down to this: Kellogg’s use of 'Natural Flavors' on the Product’s ingredient list means the product does…

A consumer has filed a putative class action alleging Whole Foods Market Group Inc. mislabels its chocolate-coated ice cream bars because the "purported chocolate contains vegetable oils." Mitchell v. Whole Foods Mkt. Grp. Inc., No. 20-8496 (S.D.N.Y., filed October 12, 2020). "Consumers want chocolate in chocolate products to come from a real source, i.e., from cacao beans," the complaint asserts. "Chocolate provides greater satiety and a creamy and smooth mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, which provide less satiety, a waxy and oily mouthfeel and leave an aftertaste." The plaintiff argues that the product's chocolate "contains ingredients not found in real chocolate," such as organic expeller pressed palm kernel oil, and alleges the inclusion of the ingredients amounts to fraud, negligent misrepresentation and unjust enrichment as well as violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.

A consumer has alleged that Frito-Lay Inc.'s Baked Cheddar and Sour Cream chips use diacetyl to obtain the sour cream flavor without referring to diacetyl as a characterizing flavor. Vado v. Frito-Lay Inc., No. 20-2055 (S.D. Cal., filed October 19, 2020). The complaint asserts that artificial diacetyl, which provides a butter flavor, is used to enrich the taste of sour cream that has been produced from cows raised on a feedlot rather than a pasture. The plaintiff argues that the diacetyl is thus a characterizing flavor of the chips and alleges the chips should be labeled "Cheddar and Artificial Sour Cream Flavored." The complaint also distinguishes the baked variety of the chips from the brand's conventional version, which "actually contains sour cream and unlike the Mislabeled Product, real sour cream is listed as an ingredient on the back-label ingredient list." The plaintiff alleges violations of California consumer-protection statutes as well…

The U.S. Food and Drug Administration (FDA) has issued final guidance on the declaration of allulose in food. "The guidance describes FDA's views on the declaration of allulose on Nutrition Facts and Supplement Facts labels and the caloric content of allulose," according to the announcement. "The guidance also announces our intent to exercise enforcement discretion for the exclusion of allulose from the amount of Total Sugars and Added Sugars declared on the Nutrition Facts and Supplement Facts label and use of a general factor of 0.4 calories per gram (kcal/g) for allulose when calculating declarations on Nutrition and Supplement Facts labels." The agency also announced a request for comments on "the nutrition labeling of sugars that are metabolized differently than traditional sugars," such as allulose, D-tagatose and isomaltulose. According to the announcement, "Some sugars (e.g., allulose, D-tagatose, isomaltulose) do not have all of the same effects in the body as…

The National American Meat Institute and the Alliance for Meat, Poultry and Seafood Innovation have urged the U.S. Department of Agriculture (USDA) to seek more information on cultured or cell-based meat and poultry products. The organizations recommend that USDA's Food Safety and Inspection Service issue an Advanced Notice of Proposed Rulemaking to obtain information about the finished products. "For cell-based/cultured products, there are several approaches to producing these products and, depending on the approach, the characteristics of some products may vary from those of conventional products, as noted by the agencies," the letter notes. " The companies developing these products are committed to supporting and complying with principles that ensure labeling is truthful and not misleading, does not disparage cell-based/cultured or conventional products, enables consumers to distinguish between such products, and is consistent with the safety and nutritional qualities of the product."

The European Parliament has reportedly voted against a ban on the use of meat terms for plant-based alternatives to meat, allowing words such as "burger," "steak" and "sausage" to be used on the packaging for plant-based foods, while passing a measure to ban the use of dairy terms on alternatives to dairy foods, such as "yogurt-style" or "cream imitation." A ban was already in place for the use of "milk" and "butter" for plant-based foods, and the passage of the measure expands the limitations.

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