YOUR SOURCE ON FOOD LITIGATION AND REGULATION

Morgan Lewis partner and FDA practice leader Kathleen Sanzo recently authored an article about the regulatory landscape and marketing implications for cannabidiol (CBD) products. In the Food Safety Magazine article, Kathy discusses the current regulatory status of CBD products and the continued legal uncertainty around the marketing of products containing CBD, including dietary supplements, foods, and alcohol. She also discusses recent FDA enforcement actions against CBD products and includes risk mitigation considerations for companies marketing dietary supplements, foods, or alcohol products containing CBD. Such considerations include

  • ingredient specifications,
  • labels for finished products,
  • product claims,
  • warning statements,
  • guarantees,
  • indemnification, and
  • insurance.

Read the full Food Safety Magazine article >>

FDA announced on October 24 that it does not intend to take enforcement action against manufacturers in the first six months following the January 1, 2020, deadline to update Nutrition Facts labels on food packaging. The enforcement discretion extension follows the May 2018 compliance date delay, which extended the compliance dates for manufacturers with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020, while compliance dates for manufacturers with less than $10 million in annual food sales moved from July 26, 2019, to January 1, 2021.

The US Department of Agriculture (USDA) issued a Notice of Availability and Request for Public Comment on a new guideline addressing multi-component food kits that contain meat or poultry items (Meal Kit Guideline). The Meal Kit Guideline provides industry with information on how to label a multi-component food kit that contains meat or poultry and whether it would need to be prepared under FSIS inspection.

The major takeaways include the following:

FDA released a consumer update stating that it supports industry’s effort to toss expiration dating terms on foods, such as “use before,” “sell by,” and “expires on,” for the more neutral date phrase “best if used by.”

Recent scientific advancements have revolutionized the way food and agricultural products are being grown, sold, and regulated. These advancements raise new regulatory issues and create unique challenges for companies in the industry. A rapidly growing population, combined with tremendous attention from investors, means animal cell-culture derived products are poised for entry into the global marketplace within 5 to 10 years.

FDA partner Bob Hibbert explored this topic in a webinar titled “Opportunities in Food and Agricultural Tech” as part of the 2019 Morgan Lewis Technology May-rathon. The Technology May-rathon, now in its ninth year, is a series of tailored webinars and in-person events designed to share tech-related current issues, trends, and developments.

Access the webinar on demand >

Access all Tech May-rathon sessions >

As promised and on time, the US Food and Drug Administration (FDA) and the US Department of Agriculture (USDA) issued an agreement on March 7 describing in some detail the division of responsibility between the two agencies over the emerging and much-talked-about category of human food produced using cell culture technology derived from cell lines of USDA-amenable species of meat and poultry. The document contains no real surprises and, as is often the case with such materials, tends to raise as many questions as it answers. Nonetheless, it provides the clearest delineation to date on the particulars of just how the safety, suitability, and marketing of such products is to be overseen by the two agencies.

With a focus upon the emerging cell-cultured meat industry, there has been considerable recent discussion about the significance of jurisdictional differences at the federal level between the US Department of Agriculture and the US Food and Drug Administration. But what now appear to be moving on a parallel track are various recently enacted laws or proposed legislation at the state level designed to impose new labeling requirements and/or restrictions for meat-alternative products, both cell- and plant-based, generally designed to restrict access to traditional terminology such as “ground beef” on such products' labels.

The pending and still tentative resolution of jurisdictional issues between the US Department of Agriculture (USDA) and the Food and Drug Administration (FDA) surrounding cell-cultured meat and poultry products should address one of the three core regulatory issues confronting this emerging industry. Assuming that it holds, a resolution will establish an overarching role for FDA in the broad assessment of the technology in order to ensure that it is safe. Once the foods themselves enter the production stage, ongoing inspection authority and related jurisdiction will revert to the USDA through the Food Safety and Inspection Service (FSIS) if the cell-cultured items in question replicate the traditional meat and poultry items that currently fall within that agency’s jurisdiction.

The US Department of Agriculture (USDA), through its Agricultural Marketing Service (AMS) published its final rule (NBFDS Final Rule) on December 21 establishing a nationwide labeling disclosure requirement for foods containing bioengineered (BE) ingredients, defined as foods or substances that contain genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (rDNA) techniques and for which the modification could not otherwise be obtained through conventional breeding or be found in nature. While a more thorough analysis is still being conducted, here we provide a summary of the major topics addressed in the NBFDS Final Rule.

As readers are undoubtedly aware, the Centers for Disease Control (CDC) issued a Food Safety Alert (Alert) on November 20 due to a multistate outbreak of E. coli-related infections linked to romaine lettuce. The CDC alert associated the product with 32 illnesses and 13 hospitalizations. Further, it advised consumers not to consume any romaine lettuce and advised retailers and restaurants not to serve or sell it. By rendering such products unsellable, the alert raised immediate questions concerning the identity of parties forced to bear the risk of loss. The issue has been addressed by the US Department of Agriculture’s (USDA) Perishable Agricultural Commodities Act (PACA) Division through FDA Advisory Alert on Romaine Lettuce and the PACA (PACA Announcement).