The U.S. Food and Drug Administration (FDA) is finally getting around to finalizing proposed rules implementing the Food Safety Modernization Act (FSMA), which was signed into law in 2011. Rules regarding preventive controls for human and animal food were recently finalized, and rules affecting produce safety and food imports are just around the corner. Compliance with the rules must be achieved as early as one year from now, depending on the particular rule and the size of your business. Continue reading
As the U.S. Food and Drug Administration (FDA) nears the finish line for issuing its new Nutrition Facts panel guidelines for food products, perhaps the most contested aspect is the proposed addition of added sugars.
This past July, the FDA amended its original proposal, which would require listing the amount of added sugars in grams, to also require listing how much added sugars a food contains relative to a total daily limit—a measure called the percent daily value, or %DV. FDA’s recommended %DV calls for the daily intake of calories from added sugars to not exceed 10% of total calories.
Although these kinds of labeling changes may seem relatively minor, their potential costs are hardly insignificant for food entrepreneurs, small food businesses, restaurants, and national and international manufacturers. Continue reading
In 1979, food technologists at J.H. Filbert developed a new vegetable oil-based spread. It looked, tasted, and felt like butter, but it contained no dairy and was not butter. What should they call it? As the story goes, a secretary tried the product and exclaimed: “I can’t believe it’s not butter!” The rest, as they say, is history.
About 35 years later, food technologists helped Hampton Creek develop a new product that contains no eggs but looks, tastes, and feels like mayonnaise. The problem: A food product is “misbranded,” and therefore not legal to sell, if it purports to be a food for which a standard of identity has been prescribed but fails to conform to such standard. The U.S. Food and Drug Administration (FDA) has established a standard of identity for “mayonnaise” that requires the product to contain egg. Therefore, like the Filbert folks, Hampton Creek had to decide what to name this new product. Continue reading
The Obama Administration’s recent budget proposal for FY 2016 endorsed the concept of establishing a single federal food safety agency—reviving discussion on what has been a long-standing issue. This initiative has generated many of the same talking points that have surrounded this topic for decades, including everyone’s favorite reference to the absurdity of a system in which the Food & Drug Administration (FDA) maintains processing oversight of a cheese pizza until pepperoni is added, at which point the oversight shifts to the U.S. Dept. of Agriculture’s Food Safety & Inspection Service (USDA FSIS).
There is near universal agreement that no one would design such a system if they were working off a proverbial clean sheet of paper. While this is undoubtedly correct, it forces us to juxtapose this theoretical point against the 100+ years of oversight, policy, and paperwork generated by the FDA, FSIS, and its predecessor agencies, not to mention other relevant players such as the Environmental Protection Agency (EPA), Centers for Disease Control & Prevention (CDC), and countless other state, local, and private parties. This history raises enormous practical and political barriers to change. We have a status quo maintained by a dizzying array of interests, both public and private, scattered through various government, departments, agencies, congressional committees, trade associations, labor unions, etc. Keep Reading
Iowa Senator Chuck Grassley and a number of meat industry observers have called for close antitrust scrutiny by the U.S. Dept. of Justice of Tyson Foods’ announced purchase of Hillshire Brands. While scrutiny of mergers is always a good idea, does this merger really pose a threat to markets or is this simply a knee-jerk, pro forma complaint about change?
In any antitrust matter, the primary concern is defining the relevant market. In this case, both the output and input facets of Tyson’s and Hillshire’s businesses would be of concern.
The two companies both sell meat products but I think it would be difficult to argue that they sell in common markets. Hillshire sells, almost exclusively, further processed, branded items. Tyson does some of that, especially in its chicken business, but it sells far more fresh, unprocessed wholesale pork and beef cuts, many of which go to companies just like Hillshire. Keep Reading
On June 12, the U.S. Supreme Court issued an 8-0 ruling in favor of Pom Wonderful in a longstanding false advertising dispute against rival beverage company The Coca-Cola Co. The Supreme Court held that competitors can bring Lanham Act claims like Pom Wonderful’s challenging food and beverage labels regulated by the U.S. Food and Drug Administration (FDA).
At issue in the case was Coca-Cola’s “Pomegranate Blueberry Flavored Blend of 5 Juices,” which is 99% apple and grape juice. Pom Wonderful (Pom), who has a competing pomegranate-blueberry juice blend, sued Coca-Cola. It alleged that the juice’s name and other labeling features were misleading under the federal Lanham Act—a statute that allows competitors to sue based on the false or misleading description of goods (15 U.S.C. § 1125(a)). Keep Reading