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FDA Extends FSMA Rule Comment Periods

Today, FDA extended the comment periods for four pending rules designed to implement the Food Safety Modernization Act. These rules, and the new due dates for comments, are:

(1) Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Foods (new due date is November 22, 2013)

(2) Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (new due date is November 22, 2013)

(3) Accreditation of Third-Party Auditors/Certification Bodies to Conduct Food Safety Audits and to Issue Certifications (new due date is January 27, 2014)

(4) Foreign Supplier Verification Programs for Importers of Food for Humans and Animals (new due date is January 27, 2014)

For information on these rules and how to comment, see FDA’s website.

Are “Natural” Food Claims Whithering Away?

Despite recent victories by industry over “all natural” plaintiffs, the Wall Street Journal is reporting that some food companies are abandoning the “all natural” and similar claims in the face of mounting litigation and lack of clarity from FDA over the definition of “all natural” claims.  As reported in the Wall Street Journal, food and drinks labeled “natural” were responsible for $40 billion in retail sales in 2012.  However, “[o]nly 22.1% of food products and 34% of beverage products launched in the U.S. during the first half of 2013 claimed to be “natural,” down from 30.4% and 45.5%, respectively, in 2009 …. Though many Americans still want natural products, … only 47% view the claims as trustworthy.”

Food And Supplement Class Actions Are On The Rise

November 8, 2013


Class actions against food industry defendants are on the rise, as evidenced by a report recently published by Bryan Cave LLP.  This report, which analyzes class action filings, demonstrates that “complaints concerning food and dietary supplements continue to dominate civil class action complaint filings for the third quarter in a row.”  Nearly 50% of class actions filed in the third quarter of 2013 related to food (35%) or dietary supplement (15%) industries.  Complaints against the food industry were up 8% over the second quarter of 2013.  As described in the report:

The vast majority of [unfair and deceptive acts and pratices]class action complaints filed during the period related to food labeling and/or nutrition content (22%), followed by claims related to a product’s performance (20%).  Closely following in third were complaints regarding claims that a product was ‘natural’ (17%).

Washington State Voters Reject Mandatory GMO Labeling

In the first GMO labeling initiative since California voters rejected Prop 37 last November, voters once again rejected the mandatory labeling scheme.  The vote, which will likely end up being about 54% opposed and 46% in favor when certified, appears to have been heavily influenced by late campaigning from opponents.  Opponents spent about $22 million against the initiative while proponents spent about $8 million, although estimates are that only about 6% of the total amount spent came from in-state sources.

The defeat is a significant blow to proponents of mandatory GMO labeling who, with the exception of legislation passed in Connecticut that is largely contingent upon other states adopting similar laws before it is implemented, have had significant difficulty convincing voters and legislatures to adopt such initiatives. Trade groups, such as the Grocery Manufacturers Association, are looking to shift the conversation towards a “federal solution that will protect consumers by

The End of Partially-Hydrogenated Vegetable Oils?

After decades of use in food products in the United States, partially hydrogenated vegetable oils appear to be on their way out.  Yesterday, FDA announced a tentative decision rescinding the GRAS (generally recognized as safe) status for such oils, which it asserts is a consequence of the health impacts, namely heart disease, of trans fats contained in the oils.  The CDC estimates that a trans fat ban could prevent 7,000 deaths and 20,000 heart attacks each year.  For an interesting history of the use of partially hydrogenated vegetable oils, see this NPR report.  Industry does have an opportunity to submit scientific evidence supporting the safe use of partially hydrogenated vegetable oils, but many do not expect that to happen.


FDA Reports That 12% of Spice Imports Are Contaminated

What is in all of those little spice containers in the your kitchen?  According to the FDA, as recently reported by the New York  Times, about 12% of spice imports are contaminated with “insect parts, whole insects, rodent hairs, and other things.”  Nearly 7% of spices imported contained salmonella.   Under the Food Safety Modernization Act, FDA is looking at new rules to address food imported into the United States, including modifications to the foreign supplier verification program.  Recent changes to those proposed rules, however, are seen by many to weaken the program.  Those changes, which include eliminating the requirement for onsite audits and exemptions for importers doing less than $500,000 in business, would surely impact spice importers (as well as other food importers).

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