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FDA Issues Guidance on “Gluten Free” Labeling

FDA issued a final rule today on the voluntary use of “gluten-free” on food labels, as directed by the Food Allergen Labeling and Consumer Protection Act.  In summary, FDA set a threshold for gluten of less than 20 parts per million in foods that are labeled “gluten-free,” “no gluten,” “free of gluten,” and “without gluten.”  Food manufacturers will have one year to bring their labeling into compliance with the new regulation.  After that one year implementation period, any food labeling “gluten-free” or a similar claim with gluten more than 20 parts per million will be considered misbranded.  A threshold of 20 parts per million was selected because that is the lowest level of gluten that can currently be detected with validated methodology, and, as stated by FDA, “some celiac disease researchers and some epidemiological evidence suggest that most individuals with celiac disease can tolerate variable trace amounts and concentrations of

Meat Industry Sues USDA over Country of Origin Labeling

On July 8, 2013, a number of meat industry trade organizations filed suit against the USDA in the United States District Court for the District of Columbia challening USDA’s new country of original labeling (“COOL”) regulations.  A copy of the complaint can be found here.  In May of 2013, USDA issued immediately-effective revised COOL regulations requiring, among other things, that meat labeling make a distinction between where an animal was born, raised and slaughtered.  These regulations were issued in response to a World Trade Organization dispute between the United States, Mexico and Canada over then-existing COOL regulations in the United States.  Mexico and Canada have asserted that the May 2013 regulations only exacerbated the dispute.  More background on the WTO dispute can be found here.

Plaintiffs assert three causes of action.  First, they argue that the COOL regulations violate the First Amendment because they compel certain commercial speech

Settlement Reached in “All-Natural” Class Action Regarding Food Products Containing GMO Ingredients

June 27, 2013

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In what is being billed as the first settlement of a class action suit alleging that the use of an “all natural” claim is deceptive where certain ingredients contain GMOs, Barbara’s Bakery Inc. has agreed to pay $4 million to the plaintiff class. The case, brought in the U.S. District Court for the Northern District of California, centers around Barbara Bakery’s cereal and snack products manufactured with GMO ingredients. Under the settlement, class members may be eligible for refunds of up to $100 each, and Barbara’s Bakery agreed not to use marketing claims such as “all natural” in the future where products contain GMO ingredients. Barbara’s Bakery also agreed to eliminate GMO ingredients from many of the products at issue in the lawsuit, which elimination would need to be verified by the third party Non-GMO Project.

Litigation over use of marketing claims such as “all natural” or “100% natural” has increased significantly

USDA Approves First GMO-Free Label

June 27, 2013

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For the first time ever, the USDA has approved a GMO-free claim for use on meat and liquid egg products. As recently reported by the New York Times, USDA has granted a request advanced by several meat producers to allow products to be labeled as “[coming] from animals that never ate feed containing genetically engineered ingredients like corn, soy and alfalfa.” The producer must be able to support the claim through a third-party certification. As explained by USDA spokeswoman Cathy Cochran, the USDA’s Food Safety and Inspection Service “allows companies to demonstrate on their labels that they meet a third-party certifying organization’s standards, provided that the third-party organization and the company can show that the claims are truthful, accurate and not misleading.” In this case, the third-party certifying organization is the Non-GMO Project, which itself actively supported the USDA approval.  USDA has clarified that the approval did not

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