The U.S. Department of Agriculture, Food and Drug Administration and the Agricultural Marketing Service will sponsor three meetings in September and October 2017 to provide information and receive comments on U.S. positions to be discussed at upcoming Codex Alimentarius Commission meetings. On September 1, the agencies will discuss U.S. positions for the Committee on Fresh Fruits and Vegetables, which meets in Uganda on October 2-6, 2017. The public meeting to discuss positions for the Committee on Food Labeling is scheduled for September 13, before the committee meets in Paraguay on October 16-20, 2017. Finally, the agencies will hold a public meeting to discuss positions for the Committee of Food Hygiene on October 11, before the committee’s meeting in Chicago on November 13-17, 2017. Issue 645
U.S. Food and Drug Administration (FDA) Commissioner Scott Gottlieb has announced that the agency will provide guidance on menu-labeling requirements before the end of 2017 in advance of the May 2018 compliance date. "This additional guidance will address concerns that were raised about challenges establishments faced in understanding how to meet their obligations under the new regulations," Gottlieb wrote in an August 25, 2017, statement. "We have been diligently working to address the comments we received, and to establish a sustainable framework for enabling establishments to effectively meet the new menu labeling provisions. These new policy steps should allow covered establishments to implement the requirements by next year’s compliance date." Issue 645
As plant-based beverages appear on more store shelves, the definition of “milk” has become the center of a dispute involving legislatures, regulators, litigators and industry groups. Shook Partners Katie Gates Calderon and Lindsey Heinz, with Associate Elizabeth Fessler, explain the debate in “Dairy Vs. Plant-Based ‘Milks’: A Regulatory Standoff." While Canada and the EU have both ruled that plant-based products cannot be called “milk,” the U.S. Food and Drug Administration (FDA) has yet to take determinative action to ensure that products using "milk" contain cow milk, though it does define the term as “obtained by the milking of one or more healthy cows." Although FDA has warned plant-based beverage manufacturers, the agency has not taken enforcement action against such products and has never ruled on a 1997 petition to allow the use of the term “soymilk.” Moreover, legislation has been introduced in both houses of Congress (H.R. 778; S.130) that…
A study by University of Maryland researchers has purportedly found that adolescents and young adults whose consumption of energy drinks continued or increased after age 21 are at increased risk of alcohol use disorder, cocaine use or nonmedical stimulant use by age 25. Amelia M. Arria, et al., “Trajectories of energy drink consumption and subsequent drug use during young adulthood,” Drug and Alcohol Dependence, August 7, 2017. The study recruited subjects at age 18 and tracked their consumption of highly caffeinated energy drinks through age 25. Although overall consumption declined after age 21 and 20.6 percent of that age group did not consume the drinks at all, 51.4 percent of the subjects apparently demonstrated “persistent” use that predicted alcohol, cocaine or stimulant abuse. Issue 644
The Trademark Trial and Appeal Board (TTAB) has affirmed a refusal to grant Empire Technology Development a trademark for “coffee flour,” finding “clear evidence of generic use” of the term. In re Empire Tech. Dev. LLC, Serial No. 85876688 (TTAB, entered August 3, 2017). The company, which created the flour from ground coffee cherry skins, pulp and pectin, claimed first use of the mark in 2012. TTAB found that Empire “failed to develop and promulgate a generic term other than ‘coffee flour’ and to educate the public to use some other name” and used coffee flour as a generic term in its advertising materials and in media coverage. To allow trademark protection for a generic term, even when identified with a first user, would grant the owner a monopoly because a competitor could not describe the product as what it is, the board said. Moreover, the board said Empire’s failure…
A dairy trade group has filed a lawsuit against Wisconsin’s Department of Natural Resources (DNR) alleging that the agency both exceeded its authority and failed to follow required public rulemaking processes when it set new water pollution control regulations affecting dairy and animal feeding operations. Dairy Bus. Ass’n v. Wis. Dep’t of Nat. Res., No. 2017CV001014 (Wis. Cir. Ct., Brown Cty., filed July 31, 2017). The complaint involves recent administrative rules and guidance issued by DNR related to feed storage leachate runoff and calf hutches. DNR is the state agency tasked with enforcement of the federal Clean Water Act and is responsible for issuing state Pollutant Discharge Elimination System permits (WPDES) to entities that discharge pollutants into state waters. The complaint asserts that the goal of the permit system is “parity” with the Clean Water Act (CWA) and state regulations “shall comply with and not exceed the requirements of the…
Iowa health officials have warned that the copper mugs typically used to serve Moscow Mule cocktails may cause copper poisoning. The state’s Alcoholic Beverage Division warns that according to U.S. Food and Drug Administration guidelines, copper should not come into contact with acidic foods with a pH below 6, and a traditional Moscow Mule is “well below” that, according to the agency. When copper or copper alloys come into contact with acidic foods, the metal can leach into the food; the agency recommends using copper containers lined with a different “nonreactive” material, such as nickel, stainless steel, enamel or ceramic. See The Washington Post, August 8, 2017. Issue 644
The National Advertising Division (NAD) has recommended that Sanderson Farms change a campaign claiming that its competitors are tricking consumers with "raised without antibiotics" labels on poultry products. NAD found that the information in Sanderson's ads was accurate, including its claim that "none of the chicken you buy in the grocery store has antibiotics in it. By federal law, all chicken must be clear of antibiotics before they leave the farm." However, NAD recommended that the language Sanderson used to describe its competitors' "antibiotic-free" labels, including "marketing gimmick," "full of hot air," "just a trick to get you to pay more money" and "a phrase invented to make chicken sound safer," should be changed, noting that the scientific community lacks a consensus on the safety of consuming meat from animals raised using antibiotics. Sanderson reportedly "respectfully disagrees" with the decision but will adjust the campaign to reflect NAD's concerns. "The…
In response to a petition for a constitutional injunction from a group of Mexican potato growers, a federal district court in Los Mochis, Mexico, has banned the import of U.S. potatoes to “preserve food sovereignty and the health of Mexican crop fields.” The growers reportedly argued that imported potatoes create a risk of crop disease and that Mexican agricultural authorities had failed to take preventive action. See New York Times, August 4, 2017. Issue 644
According to a warning letter from the U.S. Department of Agriculture (USDA), the sugar-sweetened beverage (SSB) tax that took effect in the Chicago metropolitan area on August 2, 2017, violates the federal Food and Nutrition Act, putting Illinois at risk of losing its food-stamp funds. Some retailers could not update point-of-sale systems to exempt SSB purchases made with Supplemental Nutrition Assistance Program (SNAP) funds before the tax went into effect, so Cook County Department of Revenue officials told retailers they could refund the taxes at a customer service desk or other location on the premises. However, USDA told the Illinois Department of Human Services (IDHS) in an August 7 letter that retailers cannot charge tax to SNAP recipients at any time and that providing an immediate refund does not cure the violation of federal law. USDA also stated that it notified Cook County officials that the workaround was “unacceptable” as…
