Shook Of Counsel John Johnson III will co-present "Food and Dietary Supplement Regulation Year-in-Review" on Wednesday, March 30, 2022, at the Food and Dietary Supplement Safety and Regulation Conference. The conference, which takes place March 30-31, will be presented virtually by the Food and Drug Law Institute. "This session will recap the most significant recent developments in food and dietary supplement regulation and enforcement, including updates on FDA and United States Department of Agriculture (USDA) inspections, FDA and Federal Trade Commission (FTC) warning letters and enforcement, and compliance challenges faced by manufacturers and retailers," according to the conference agenda. "Panelists will also discuss the extent to which federal regulation and enforcement may have impacted private litigation over the past year."
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The U.S. Food and Drug Administration (FDA) has announced that it will conduct quantitative consumer research on the use of "voluntary symbols that could be used in the future to convey the nutrient content claim 'healthy.'" The agency is simultaneously "developing a proposed rule that would update when manufacturers may use the 'healthy' nutrient content claim on food packages." "Updating labeling and making it more accessible helps empower consumers," the constituent update states. "In particular, claims and symbols can help consumers better understand nutrition information and identify foods that contribute to a healthy eating pattern. Manufacturers may also reformulate products to improve their nutritional value so they can use the claim."
The U.S. Food and Drug Administration (FDA) has issued a final rule amending the acceptable qualities of food labeled as yogurt. Under the rule, the standards of identity for lowfat and nonfat yogurt will be combined with the general definition; in addition, the list of allowable ingredients has expanded to include additional substances such as agave. "Additionally, the final rule supports the many innovations that have already been made in the yogurt marketplace, including continuing to allow manufacturers to fortify yogurts, such as adding vitamins A and D, as long as they meet fortification requirements," according to the constituent update. "The rule also allows various styles or textures of yogurt as long as they meet requirements in the standard of identity."
The U.S. Department of Agriculture has announced a public meeting scheduled for April 19, 2022, to discuss U.S. positions for the meeting of the Codex Committee on Contaminants in Foods of the Codex Alimentarius Commission. Issues to be discussed include: "Maximum level for cadmium in cocoa powder (100% total cocoa solids on a dry matter basis)"; "Code of practice for the prevention and reduction of cadmium contamination in cocoa beans"; "Maximum levels for lead in certain food categories"; "Maximum levels for total aflatoxins in certain cereals and cereal-based products including foods for infants and young children"; "Sampling plans and performance criteria for total aflatoxins in certain cereals and cereal-based products including foods for infants and young children"; "Maximum level for total aflatoxins in ready-to-eat peanuts and associated sampling plan"; "Maximum levels for total aflatoxins and ochratoxin A in nutmeg, dried chili and paprika, ginger, pepper and turmeric and associated sampling…
An Illinois federal court has dismissed a complaint alleging that Kellogg Sales Co. misleads consumers by including more ingredients than just strawberries in the filling of its Strawberry Pop-Tarts. Chiappetta v. Kellogg Sales Co., No. 21-3545 (N.D. Ill., E. Div., entered March 1, 2022). The plaintiff alleged that "the Product packaging misled her and other consumers into believing that the Product’s fruit filling contained 'only strawberries and/or more strawberries than it does' because it bears the word 'Strawberry,' and it depicts half of a fresh strawberry and red fruit filling. [] In reality, though, the Product’s fruit filling contains more than just strawberries; it also contains dried pears, dried apples, and a food dye known as 'red 40,' among other ingredients." The court was unpersuaded by the plaintiff's arguments. "The essence of [the plaintiff's Illinois Consumer Fraud and Deceptive Business Practices Act] claim is that the word 'Strawberry,' combined with a…
A plaintiff has filed a putative class action alleging Bimbo Bakehouse LLC misleads consumers by selling The Cheesecake Factory "Our Famous 'Brown Bread' Wheat Sandwich Loaf" as a bread made with primarily whole grains despite containing higher amounts of enriched wheat flour. Hamidani v. Bimbo Bakehouse LLC, No. 22-1026 (N.D. Ill., E. Div., filed February 26, 2022). "Consumers increasingly prefer whole grains to non-whole grains," the complaint asserts. In addition to "important nutrients like fiber, vitamins, minerals, and antioxidants," the "bran also gives whole grains their distinctive brown coloring." "Despite the labeling of the Product as 'Brown Bread,' with a dark brown color, and visible pieces of grain, the Product is not made with mainly whole grains," the plaintiff argues. "The ingredient list reveals that the most predominant ingredient is not whole grain flour but 'ENRICHED WHEAT FLOUR.' [] While 'WHOLE WHEAT FLOUR' is the third most predominant ingredient, this is…
The U.S. Food and Drug Administration (FDA) has issued guidance indicating that it will not enforce particular provisions implementing the Food Safety Modernization Act (FSMA). "In certain situations the FDA has determined it is appropriate to take time to consider options, including rulemaking, to address concerns raised by stakeholders, while continuing to protect public health," the constituent update states. "As we work on solutions, the agency does not intend to enforce these provisions as they currently apply to entities or activities addressed in the guidance." Affected rules include: Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food; Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Animal Food; Foreign Supplier Verification Program; Produce Safety; and Intentional Adulteration.
The Ecological Alliance has reportedly filed a lawsuit in California state court alleging The Kroger Co. failed to warn consumers about the presence of lead in several of its foods. Ecological Alliance LLC v. Kroger Co. (Cal. Super. Ct., Los Angeles Cty., no. and filing date unavailable). The complaint alleges that Kroger sells fifteen products that contain lead, including graham crackers, salad kits, bagels and spaghetti. The plaintiff advocacy organization purports to have tested the products and found levels of lead up to 140 times the limit set by California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ecological Alliance, which seeks injunctions preventing Kroger from selling lead-contaminated products without a Prop. 65 warning, alleges that it sent violation letters to Kroger and the California attorney general in the summer and fall of 2021, but the government agencies failed to take action against the company.
Regulations governing the use of per- and polyfluoroalkyl substances (PFAS) continue to evolve. In California, the Office of Environmental Health Hazard Assessment (OEHHA) announced the addition of perfluorooctanoic acid (PFOA), one type of PFAS, to the list of chemicals established under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The U.S. Food and Drug Administration (FDA) issued a constituent update about the results of tests for PFAS in food. The study purportedly found that 89 of 92 food samples "had no detectable levels of PFAS"; the three that contained the substance were seafood—tilapia, cod and shrimp. "To date, there have been 10 samples with detectable PFAS out of 532 [Total Diet Study (TDS)] samples the FDA has tested since 2019," the update notes. "Based on the best available current science, the FDA has no scientific evidence that the levels of PFAS found in the TDS…
The European Food Safety Authority (EFSA) has completed a "comprehensive safety assessment of sugars in the diet and their potential links to health problems." The assessment aimed to set a tolerable upper intake level for dietary sugars, but the panel was unable to reach a conclusion. According to the assessment's plain language summary, "the risk of adverse health effects (responses) increased across the whole range of observed intake levels (doses) in a constant (linear) manner, i.e. the higher the intake, the greater the risk of adverse effects." The announcement indicated that the wide-ranging assessment may allow researchers to set a tolerable upper intake level following future studies. One panelists reportedly stated, "We screened over 30,000 publications so we have identified several areas to target for researchers and technicians. The pooling and reuse of individual human data from research studies would be a valuable source of information. Research should focus both…
