At the beginning of 2021 the National Agricultural Law Center (NALC) published a blog post highlighting some of the major food law themes for. This blog post follows up on those themes and topics, and includes new food law issues that will likely be at the forefront in 2022.
Challenge to the National Bioengineered Food Disclosure Standard
In October 2020, the Center for Food Safety (CFS) filed an amended complaint against the United States Department of Agriculture (USDA) challenging the final rule establishing the National Bioengineered Food Disclosure Standard. In its compliant, CFS had five claims: (1) the option for electronic or digital disclosures is discriminatory; (2) USDA should have used a more common term such as genetically modified organism (GMO) or genetically engineered (GE); (3) USDA should not have excluded highly refined foods from the standard; (4) the Standard violates food manufacturers’ and retailers’ freedom of speech; and (5) the Standard violates states’ rights to regulate genetically modified seeds. CFS hopes the court will repeal the rule and require USDA to re-draft the rule. USDA has until mid-February 2022 to respond to CFS’s claims. Afterwards, intervening defendants will have a chance to respond to CFS. Then, CFS will have a chance to counter-reply and the judge assigned to the case will make a ruling. For more information about the National Bioengineered Food Disclosure Standard, read NALC’s factsheet on the topic.
Labeling hydroponically grown crops as organic has been in controversy since the USDA enacted the Organic Foods Production Act in 1990. USDA states that hydroponics may be certified organic if they meet the regulatory requirements. However, in March of 2020, the Center for Food Safety along with a group of organic farmers and stakeholders filed a lawsuit in the Northern District of California challenging the USDA’s decision to allow hydroponic operations to be certified organic. The crux of the argument is that hydroponic crops cannot be organic because they do not meet the soil fertility requirements of 7 C.F.R. §205.203 as hydroponic crops are grown without soil. The soil fertility requirements require organic producers to implement practices such as tillage, crop rotation, and cover crops to both maintain and improve soil quality. On March 19, 2021, in the case Center for Food Safety v. Perdue, 527 F.Supp.3d 1130 (N.D. Cal. 2021), Judge Seeborg agreed with USDA. Therefore, hydroponic operations can still legally be certified organic.
Since 2019, a large portion of food labeling lawsuits have concerned the use of the term “vanilla” on food packaging. This trend continued into 2021, with the majority of the vanilla cases filed in the Southern District of New York and the Northern District of California. Some of the food products targeted in cases litigated in 2021 included root beer, soymilk, almond milk, Greek yogurt, ice cream, protein shakes, tea, energy drinks, and syrup. Most cases sought class action certification, and turned on whether a “reasonable consumer” would expect the product’s vanilla flavoring to be derived solely from a vanilla bean and not from other “natural” sources. Although judges have dismissed most vanilla labeling cases, this area of the law is still evolving. Plaintiffs continue to shift their arguments for why using vanilla derived from sources other than a vanilla bean is false and misleading especially when not disclosed on the food label.
Baby Food Safety
On February 4, 2021, the United States House of Representatives Subcommittee on Economic and Consumer Policy released a report entitled “Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury.” Although there were some lawsuits against baby food manufacturers already underway, there were many lawsuits filed after the release of the report. Most of these cases were brought by parents who fed their children baby food identified in the report as containing high levels of toxic heavy metals such as arsenic, lead, cadmium, or mercury. Some of the parent plaintiffs claim the toxic heavy metal containing baby food caused their children to develop disorders such as autism spectrum disorder. Many of these cases were brought under state consumer protection laws and are on-going.
Agricultural Water Rule
On December 6, 2021, the Food and Drug Administration (FDA) published a proposed rule to amend the agricultural water regulations found in Subpart E of the Produce Safety Rule (PSR). The PSR is one of seven main rules that implements the Food Safety Modernization Act, a comprehensive food safety law passed in 2011 which aims to revamp the United States food safety system. The comment period for this proposed rule closes on April 5, 2022. The December 6, 2021, proposed rule does not change the current regulation which has a compliance date of January 26, 2022. However, FDA has indicated it plans to extend the compliance date. To read a recent NALC blog post on this issue, click here. To read NALC’s factsheet on the PSR, click here.
Alternative Protein Labeling
Some states have laws that govern the words or phrases that can be used to identify alternative protein sources (i.e. plant-based or cell cultured). Alternative protein food companies have challenged many of these state laws with varying results. To read more about these alternative protein labeling lawsuits, click here. A federal law or regulation on how to label alternative protein products would help clear the confused which has resulted from the conflicting court opinions.
In September of 2021, the Food Safety Inspection Service (FSIS), an agency within the USDA, took the first step in creating a federal regulation to address the labeling of cell cultured (sometimes referred to as lab-grown or slaughter free) meat. On September 2, 2021, FSIS published an Advanced Notice of Proposed Rulemaking seeking comments on fourteen specific questions on how cell cultured meat and poultry products should be labeled and marketed. The comment period closed on November 2, 2021, and FSIS received a total of 1,207 comments. For more information about this Advanced Notice, read NALC’s recent blog post on the subject here. This is an evolving issue that NALC will provide updates on throughout 2022.
Although the FDA has not taken any regulatory action as of yet, in April 2021 Congress passed the Food Allergy Safety, Treatment, Education, and Research Act of 2021, or the FASTER Act. The FASTER ACT adds sesame as the ninth food allergy that food manufacturers must include on food labels. The act goes into effect on January 1, 2023. Therefore, in 2022 food manufacturers do not have to include sesame as an allergen on a food label. However, in 2022 food manufacturers will have to prepare to come into compliance to avoid violating the statute in 2023.
Currently there is a federal definition for the term “healthy” when used on a food label. This definition is found at 21 C.F.R. § 101.65(d). However, FDA has taken steps to update the current definition which was last amended in 2005. FDA has drafted a proposed rule which, according to the Statement of Need FDA submitted to the Office of Management and Budget (OMB), would update the definition “to make it more consistent with current public health recommendations, including those captured in recent changes to the Nutrition Facts label.” FDA is currently seeking approval of the proposed rule from OMB. Once OMB approves the proposed rule, it will be published in the federal registered and open for comments. In addition to this proposed rule, FDA is also considering whether to create a healthy symbol that food manufacturers can put on food labels if their food falls under the regulatory definition of healthy.
As stated in the recent National Agricultural Law Center blog post titled “Top Ten Agricultural Law Issues in 2021”, whether FSIS will classify Salmonella in chicken an adulterant is an issue to watch in 2022. FSIS has received two petitions arguing for such a classification. The first petition was submitted on January 19, 2020, by Marler Clark LLP, and the second petition was submitted on January 25, 2021, by the Center for Science in the Public Interest. On October 19, 2021, FSIS published a press release announcing that FSIS aims to take steps to reduce Salmonella caused illness by 25%. On October 22, 2021, FSIS published a letter responding to a requested status update filed by Marler Clark LLP. In its letter, FSIS stated it will consider the issues raised in the petitions as it considers approaches to reduce Salmonella caused illness. To read NALC’s blog post about Salmonella and other foodborne pathogens in our meat, poultry, and egg products, click here. The read another recent NALC blog post about foodborne pathogens in the rest of the food supply, click here.
On August 16, 2021 the Food and Nutrition Service (FNS), an agency within USDA, released the 2021 version of the Thrifty Food Plan. The Thrifty Food Plan is used to calculate the Supplemental Nutrition Assistance Program (SNAP) benefits participants receive. Although this agency action did not go through notice and comment rulemaking, the increase was authorized by the 2018 Farm Bill. The 2021 Thrifty Food Plan increased the average SNAP benefit by $36.24 per person, per month, or $1.19 per day. The 2021 Thrifty Food Plan was put into effect on Oct. 1, 2021. For more about the 2021 Thrifty Food Plan, click here to read NALC’s blog post on the topic.
A lot happened in the food law realm in 2021. Some issues, such as whether hydroponically grown produce can be certified organic, were at least temporarily resolved. Other issues, such as the challenge to the National Bioengineered Food Disclosure Standard, the labeling of alternative protein sources, and the revision of the agricultural water rule, will continue into 2022.