On May 31, 2019, the U.S. Food and Drug Administration (FDA) held a widely anticipated public hearing with stakeholders on cannabis and cannabis-derived compounds to gain insights on product safety and a potential regulatory framework for products containing such substances. The hearing focused on cannabidiol (CBD)—a popular but controversial compound that has been added to products ranging from tinctures and lotions to sodas and ice cream. Interest in the product was spurred by the passage of the 2018 Farm Bill, which removed hemp (cannabis plants with less than 0.3% THC content) from the Controlled Substances Act. The Farm Bill also complicated FDA’s role in regulating CBD because although the substance was de-scheduled by Congress, the Agency still regulates it as a drug—meaning that any consumer product with CBD is technically a misbranded drug in violation of FDA rules. While the Agency has taken limited actions against companies using CBD as…
Shook Partner Lindsey Heinz and Associate Elizabeth Fessler discuss the regulatory and legal implications of food advertising, especially through social media, in the podcast available below. What types of scientific substantiation do companies need to supply for labeling claims, particularly those related to health and safety? Do the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) look to websites and social media when reviewing products for regulatory compliance? What should companies know about retweeting or sharing third-party endorsements? Listen to the podcast (6:53) and read the transcript, available below. LINDSEY HEINZ Have your cake and tweet it too—managing social media marketing campaigns related to food and beverage products can be a tricky legal line to tow. ELIZABETH FESSLER Social media continue to be a powerful marketing tool. And as access to technology expands, social media marketing campaigns are increasingly likely to play a significant role in marketing…
Mondelez International Inc. allegedly markets its Oreos as containing "Real Cocoa" despite containing "cocoa processed with alkali." Harper v. Mondelez Int'l Inc., No. 19-2747 (N.D. Cal., filed May 20, 2019). A plaintiff has asserted that the claim "'Always made with Real Cocoa' or 'Real Cocoa' is intended to differentiate the cocoa in the Products from cocoa that has been processed, such as cocoa powder 'processed with alkali,'" and Mondelez allegedly misleads consumers by including processed cocoa rather than unprocessed cocoa in Oreos. "No reasonable consumer would expect the cocoa in the Products to have been processed with alkalis, because 'real' represents the cocoa powder is included in its most unadulterated, non-artificial form," the plaintiff argues. "It is false, deceptive and misleading to conspicuously promote 'real cocoa' without any reference to the presence and use of alkalis either preceding or following because 'real cocoa' without any modifying terms implies the absence…
Cape Florida Seafood has filed a lawsuit alleging that several companies have "conspired since at least 2015" to fix prices on farm-raised Norwegian salmon. Cape Fla. Seafood v. Mowi ASA, No. 19-22002 (S.D. Fla., Miami Div., filed May 17, 2019). The complaint asserts that salmon prices before 2015 were correlated with the cost of feed protein, while after 2015, "regression analyses indicate that . . . as fishmeal prices declined, farm-raised salmon prices increased." The plaintiff asserts that the regression analyses "are concrete evidence that farm-raised salmon prices were not increasing as a response to costs and, instead, were being affected by Defendants' combination, contract, and/or conspiracy." Cape Florida Seafood seeks class certification and damages for the alleged unlawful restraint of competition in violation of the Sherman Act.
A consumer has filed a putative class action alleging that Stewart's Fountain Classics beverages are misleadingly marketed as having a "Creamy Vanilla Taste" despite containing artificial flavors. Dalton v. Mott's LLP, No. 19-2960 (E.D.N.Y., filed May 19, 2019). The plaintiff admits that the label discloses the product contains artificial flavors but argues that the "nostalgic imagery and glass bottles assist in focusing the consumers' attention on the upper-right characterizing flavor claim, and away from the inconspicuous disclosure of artificial flavors at the bottom of the label." For alleged violations of California's consumer-protection statutes, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney's fees.
A New York Times article has documented how Philadelphia's tax on sugar-sweetened beverages (SSBs) has affected the residents of the city. The article, published days before the city's Democratic primary for mayor, speculates that the tax could be eliminated if the primary challengers were to beat Mayor Jim Kenney; although the mayor won the May 21, 2019, primary, the article compiles multiple negative perspectives of the tax and its effects. "In my district, 95 percent of the residents hate it," one councilperson is quoted as saying. "The people who buy $7 lattes say the poor should be drinking water, but no one is considering the fact that my constituents live in food deserts with no access to fresh fruit and vegetables." A Philadelphia business owner told the Times that his company has lost customers because the tax has sent consumers to suburban grocery stores to purchase SSBs along with the…
In an effort to combat citrus greening, some citrus farmers have reportedly begun spraying antibiotics on their trees, sparking concerns about antibiotic resistance, according to the New York Times. The Environmental Protection Agency (EPA) apparently approved the use of streptomycin and oxytetracycline for emergencies "despite strenuous objections from the Food and Drug Administration and the Centers for Disease Control and Prevention" and the existence of bans on similar uses in Europe and Brazil. The Times calls the growers' current use and the levels that EPA has approved for the future "the largest use of medically important antibiotics in cash crops" and contrasts the decision to the ban on antibiotics used to promote growth in farm animals. One plant pathologist reportedly told the Times that EPA prohibits the application of antibiotics 40 days before harvest, resulting in "little chance consumers would ingest the drugs."
The U.S. Food and Drug Administration (FDA) has issued draft guidance for industry on the use of "potassium chloride salt" on food labels as an acceptable alternative to the use of the common or usual name "potassium chloride." The guidance indicates that the agency recognizes that food manufacturers "wishing to reduce sodium chloride in their products sometimes use substitute ingredients that provide similar taste and technical functions of sodium chloride in foods," including potassium chloride, which is generally recognized as safe for use as a flavor enhancer, flavoring agent, nutrient supplement, pH control agent, stabilizer and thickener. Comments on the draft guidance will be accepted until July 19, 2019.
U.S. Rep. Debbie Dingell (D-Mich.) has introduced legislation that would "ban the use of toxic perfluorinated compounds (PFAS) in food containers and cookware." The Keep Food Containers Safe from PFAS Act would give the U.S. Food and Drug Administration authority to deem PFAS chemicals in food containers as unsafe by 2022. “We already know the double cheeseburger and fries are not the most healthy meal, but no one suspects the dangerous chemicals seeping into your food from the wrapper or food containers," Dingell is quoted as saying in a press release. "This important legislation ensures unsafe, hazardous chemicals are not allowed near the food we eat.”
The Council of the European Union has voted to adopt measures banning "the 10 single-use plastic products most often found on European beaches," including cutlery, plates, straws, drink stirrers, cups and other food and beverage containers. The ban focuses on products for which alternatives not constructed of single-use plastic are readily available. The decision will take effect 20 days after it is published in the Official Journal of the European Union, and member countries will have two years to implement the legislation in their national laws.
