The U.S. Food and Drug Administration (FDA) has responded to the House report on levels of heavy metals in baby food with the promise of additional action. The FDA statement notes, "First, today we issued a letter to industry reminding manufacturers of these types of foods of their existing responsibilities related to these efforts. Secondly, the agency is announcing that we’ll soon be putting into action a plan aimed at reducing toxic elements in foods for babies and young children to levels as low as is reasonably achievable." The industry letter asserts that the agency will take action to remove foods from the market "when the levels of toxic elements or other chemicals in foods do pose a health risk," citing as an example a consent decree the agency obtained in January 2021 to stop Valley Processing Inc. from selling adulterated juice. The agency's plan includes finalizing an action level…
The U.S. Department of Agriculture's (USDA's) inspector general will reportedly review how the agency handled inspections during the COVID-19 pandemic, according to The Washington Post. The probe will review how the Food Safety and Inspection Service spent $33 million in extra funding provided by Congress in March 2020, including what precautions were taken to protect the health of inspectors. The probe comes amid elevated scrutiny on how meatpacking plants have handled the pandemic, including lawsuits targeting meat companies. A Nebraska court dismissed a lawsuit brought by former employees of a Noah's Ark Processors plant alleging the company failed to implement proper precautions to stop the spread of the virus, holding that the employees lacked standing because they no longer work at the plant. Alma v. Noah's Ark Processors LLC, No. 20-3141 (D. Neb., entered March 1, 2021).
Philadelphia and three other municipalities have filed a lawsuit challenging Pennsylvania's prohibition of bans on plastic or single-use bags. Philadelphia v. Penn., No. 42 MD 2021 (Penn. Commw. Ct., filed March 3, 2021). "To combat the destructive environmental impact of single use plastic bags, states and cities across the country have enacted laws restricting distribution of single-use plastic bags by retailers," the complaint argues. The plaintiff cities assert that Pennsylvania has prevented them from taking action on limiting plastic bags. "In both 2019 and 2020, the Pennsylvania General Assembly used the annual fiscal code amendment – a must-pass omnibus-style bill that implements the state’s budget – to sneak in a provision prohibiting plastics legislation by Pennsylvania municipalities into state law," they allege. "Petitioners are now indefinitely barred from enacting or enforcing local single-use plastics ordinances. Petitioners Philadelphia, West Chester, and Narberth wish to move forward with enforcement of their ordinances, but…
Former U.S. Food & Drug Administration (FDA) Associate Chief Counsel Kristin Kaplan joins Shook, Hardy & Bacon, further expanding the firm’s regulatory capabilities. Kaplan has a deep understanding of regulatory issues and the nuances of the government agency after advising FDA for eight years and serving an in-house role at a global leader in animal health. “Her combined FDA insight and in-house experience make Kristin invaluable as we deepen our regulatory capabilities,” said Shook Chair Madeleine McDonough. “It is critical for our clients facing litigation to align with our regulatory team to anticipate and address developing legal developments.” Kaplan counseled FDA on a variety of issues, including new animal drug applications stemming from biotechnology and recalls of foods, animal foods and drugs. She later became Deputy General Counsel for one of the world’s largest animal health leaders, where she provided strategic insight on various issues including regulatory, compliance, and health, safety…
A California appeals court has declined to revive a lawsuit alleging that packaging for Foster Poultry Farms Inc. products misleads consumers by featuring a certification that the animals are treated humanely. Leining v. Foster Poultry Farms Inc., No. B291600 (Cal. App. Ct., 2nd Dist., entered February 23, 2021). The plaintiff had alleged that she believed the logo to indicate that the animals were treated humanely according to a reasonable consumer's standard rather than according to the industry's standards; the trial court granted Foster Farms summary judgment, finding that the American Humane Association's certification program was "independent, reasonable, and involved some level of expertise." The appeals court found that the plaintiff's causes of action were preempted by the Poultry Products Inspection Act (PPIA) because the labels were preapproved by the Food Safety and Inspection Service. If the plaintiff "were to prevail on her tort claims that the labels were nonetheless misleading,…
A New York federal court has dismissed a lawsuit against Oregon Chai Inc. for failure to state a claim in litigation centered on whether using the term "vanilla" on packaging is misleading to consumers. Cosgrove v. Oregon Chai Inc., No. 19-10686 (S.D.N.Y., entered February 22, 2021). "In the past two years, counsel for Plaintiffs [] has filed numerous class action complaints across the country, including several in this District, challenging food manufacturers’ use of the term 'vanilla' in their descriptions or advertising," the decision begins. "In nearly all of these cases, the district court ultimately found that the plaintiffs had failed to state a viable claim for relief. This time, Plaintiffs challenge Defendant Oregon Chai, Inc. [], claiming that Defendant’s use of the term 'vanilla' and other statements on the packaging of its chai tea latte powdered mix is misleading to consumers. As set forth in the remainder of this Opinion,…
A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.
The U.S. Department of Agriculture (USDA) and Food and Drug Administration (FDA) have issued a joint statement stating that "there is no credible evidence of food or food packaging associated with or as a likely source of viral transmission of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus causing COVID-19." The statement was issued one week after the World Health Organization reportedly stated that the virus could be transmitted on frozen food packaging. "The USDA and the FDA are sharing this update based upon the best available information from scientific bodies across the globe, including a continued international consensus that the risk is exceedingly low for transmission of SARS-CoV-2 to humans via food and food packaging. For example, a recent opinion from the International Commission on Microbiological Specifications for Foods (ICMSF), stated: 'Despite the billions of meals and food packages handled since the beginning of the COVID-19 pandemic, to…
The U.S. Senate has voted 92-7 to confirm Tom Vilsack as head of the U.S. Department of Agriculture. Vilsack, who served in the position under former President Barack Obama, stated that his priorities include addressing "the pandemic, racial justice and equity and climate change."
The U.S. Food and Drug Administration (FDA) has issued a constituent update responding to the Senate's report on elevated levels of heavy metals in baby foods. "While the report released on February 4, 2021 by the U.S. House of Representatives Committee on Oversight and Reform Subcommittee on Economic and Consumer Policy raises important questions on what more can be done to reduce toxic elements in baby foods, the FDA has been actively working on this issue using a risk-based approach to prioritize and target the agency’s efforts," the update states. "Firms and individuals who manufacture or sell food have a legal responsibility under the Federal Food, Drug, and Cosmetic Act to ensure the safety of their products. The FDA reviews information and takes action on a case-by-case basis. If the FDA finds that a product violates the law, the agency takes steps to stop the product from being imported, takes…
