These Regulatory Updates are brought to you by Michael Best & Friedrich. 

This Regulatory Update includes information from December 31, 2020 – January 16, 2021. Please contact Paul Benson, Taylor Fritsch, or Leah Ziemba for additional information on regulatory issues that may affect your business.

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REGULATIONS AND INDUSTRY GUIDANCE

• FDA Sets Uniform Compliance Date for Food Labeling Regulations MUST READ
• FDA Updates Proposed Food Traceability List and Publishes FAQ on Proposed Rule MUST READ
• Department of Labor Issues Final Rule to Modernize H-2A Agricultural Labor Visa Program MUST READ

USDA UPDATES

• USDA Releases FY 2021 Annual Sampling Plan
• USDA Releases “Agriculture Innovation Research Strategy” Summary and Dashboard
• USDA Expands Coronavirus Food Assistance Program (CFAP) Eligibility MUST READ

OTHER DEVELOPMENTS

• Westbrae Natural Is Latest Company to Defeat Allegations of Misleading Vanilla-Flavored Product Marketing

UPCOMING MEETINGS & CONFERENCES

• January 27, 2021, 2:00 PM EST: Webinar on “How FDA Is Integrating the Blueprint for Smarter Food Safety,” hosted by Food Safety Magazine. Register here.
• February 18 – 19, 2021: Virtual Agricultural Outlook Forum (AOF), USDA’s largest annual meeting, on “Building on Innovation: A Pathway to Resilience.” Program to be announced in early December 2020. Register here and read about this year’s program here.
• View slide decks from past USDA-FSIS meetings and presentationshere. 
  
  
• View slide decks from past USDA-FSIS meetings and presentations here.

REGULATIONS AND INDUSTRY GUIDANCE

FDA Sets Uniform Compliance Date for Food Labeling Regulations
January 4:FDA made an announcement establishing January 1, 2024 as “the uniform compliance date for final food labeling regulations that are issued in calendar years 2021 and 2022,” according to the agency’s Constituent Update. FDA customarily announces such uniform compliance dates for new labeling requirements in order to “minimize the economic impact on the food industry of having to respond separately to each labeling change.”

The new uniform compliance date does not affect existing compliance date requirements in final rules published before January 1, 2021. Furthermore, “[f]or some food labeling regulations…FDA will set a compliance date that differs from the uniform compliance date if special circumstances justify a different compliance date.  The specific compliance date is published when a final regulation is issued.” 

Read FDA’s Constituent Update here and Federal Register Notice here.  

FDA Updates Proposed Food Traceability List and Publishes FAQ on Proposed Rule
January 12:FDA made two updates to its materials for stakeholders regarding the Food Traceability Proposed Rule (“Requirements for Additional Traceability Records for Certain Foods,” 85 Fed. Reg. 59984).  

First, the agency made clarifying edits to its proposed “Food Traceability List” (FTL), which lists the foods for which additional food traceability recordkeeping requirements would apply under the proposed rule.  According to the agency’s Constituent Update, the edits to certain commodity descriptions “were made for clarity and do not reflect a change in which foods are on the FTL.” All edits to the FTL are detailed in its memorandum entitled “Food Traceability List for ‘Requirements for Additional Traceability Records for Certain Foods’ Proposed Rule – Clarified Language.”

Second, FDA published a “Frequently Asked Questions” section on its webpage about the proposed rule. The agency created the FAQ section to assist stakeholders who are considering submitting comments on the proposed rule, especially given the extension of the comment period to February 22, 2021.

Read FDA’s Constituent Update here, the memo on edits to the FTL here (PDF), and its FAQ section here (PDF). Visit the webpage for the proposed rule here. Read about the proposed rule in our September 2020 (Part 2) Regulatory Update here.

Department of Labor Issues Final Rule to Modernize H-2A Agricultural Labor Visa Program
January 15:The U.S. Department of Labor (DOL) issued a final rule modernizing the H-2A Temporary Agricultural Labor Certification Program, which “allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature,” according to DOL’s Program Overview (20 CFR Parts 653 and 655).

According to DOL’s News Release, the 722-page final rule “mandates electronic filing of job orders and applications”; establishes new standards permitting small employers to employ H-2A employees jointly in full-time employment; “provide[s] additional flexibilities that will reduce unnecessary burdens on the agricultural employers that use the program”; and “strengthen[s] protections for U.S. and foreign workers by enhancing standards applicable to rental housing and public accommodations, strengthening surety bond requirements, and expanding the Department’s authority to use enforcement tools like program debarment for substantial violations of program rules.”

U.S. Secretary of Agriculture Sonny Perdue issued a statement applauding the final rule: “USDA’s goal is to help farmers navigate the complex H-2A program that is administered by Department of Labor, Department of Homeland Security, and the State Department so hiring a farm worker is an easier process…These modernizations make the Federal government more responsive to our customers, ensuring American agriculture continues to lead the world for years to come.”

Read USDA’s Press Release here and DOL’s News Release here. Read the final rule here (PDF)

USDA UPDATES

USDA Releases FY 2021 Annual Sampling Plan
December 31:USDA-FSIS announced the availability of its Fiscal Year (FY) 2021 Annual Sampling Plan. The agency has released these sampling plans each year since the December 2011 release of the Report on the Food Safety and Inspection Service Microbiological and Residue Sampling Programs. According to USDA-FSIS’s Constituent Update, these plans have “continued FSIS’ efforts to comprehensively identify the Agency’s microbiological and chemical residue sampling activities and consider them in light of data-driven strategic planning efforts.”

Read USDA-FSIS’s Constituent Update here and the FY 2021 Annual Sampling Plan here (PDF). 

USDA Releases “Agriculture Innovation Research Strategy” Summary and Dashboard
January 12:USDA released a summary and public dashboard for its “U.S. Agriculture Innovation Strategy Directional Vision for Research.” The summary report recaps the stakeholder responses that USDA collected regarding its Agriculture Innovation Agenda (AIA). Launched in February 2020, the AIA is a department-wide, multi-phase initiative to prepare the U.S. agricultural system for future global demand and to “achieve the goal of increasing production by 40 percent while cutting the environmental footprint of U.S. agriculture in half by 2050,” as stated in USDA’s April 1, 2020 press release.

In both an April 2020 Request for Information (RFI) and stakeholder-led workshops, USDA sought stakeholder input on “transformational research goals for the next era of agriculture productivity and environmental conservation” and “approaches to these opportunities around four innovation cluster areas (Genome Design, Digital Automation, Prescriptive Intervention, and Systems Based Farm Management).” The agency synthesized the responses to these prompts in its report.

USDA created the public dashboard, meanwhile, to publicize stakeholder data “on agricultural innovation opportunities over three time horizons, including near-term solutions, longer-term transformational solutions, and next era concepts.”

Read USDA’s Press Release here and the summary here (PDF). Visit the dashboard here.

USDA Expands Coronavirus Food Assistance Program (CFAP) Eligibility
January 15: USDA will provide additional assistance through the Coronavirus Food Assistance Program (CFAP) by “expanding eligibility for some agricultural producers and commodities” and “updating payments to accurately compensate some producers who already applied for the program,” according to the agency’s Press Release.

Specifically, producers of pullets and turfgrass sod, as well as “[c]ontract producers of swine, broilers, laying hens, chicken eggs and turkeys who suffered a drop in revenue in 2020 as compared to their 2019 revenue because of the pandemic,” are now eligible for CFAP payments. Additionally, USDA adjusted the CFAP payment calculations for certain row crops and for “all sales commodities, which include specialty crops, aquaculture, tobacco, specialty livestock, nursery crops and floriculture,” for CFAP Round 2. Finally, the agency will provide “an additional CFAP 1 inventory payment for swine to help producers who face continuing market disruptions from changes in U.S. meat consumption due to the pandemic.”

Producers who are now eligible for CFAP payments or need to modify existing applications as a result of these updates may contact USDA’s Farm Service Agency (USDA-FSA) between January 19 and February 26, 2021.

Read USDA’s Press Release here.

OTHER DEVELOPMENTS

Westbrae Natural Is Latest Company to Defeat Allegations of Misleading Vanilla-Flavored Product Marketing
January 7: In the latest case involving allegations of deceptive marketing of vanilla-flavored food or drink products, the U.S. District Court for the Southern District of New York dismissed in favor of the defendant, vanilla soymilk producer Westbrae Natural Inc. (Barreto v. Westbrae Natural, Inc , S.D.N.Y., No. 1:19-cv-09677, 1/7/21).

At issue was Westbrae’s labeling of its vanilla soymilk product. The front label of the product described it as “Vanilla Soymilk,” and the  ingredient list disclosed “Natural Vanilla Flavor With Other Natural Flavors.” Because the front label did not explicitly state that the soymilk contained “Other  Natural  Flavors,” plaintiff Natasha Barreto alleged that Westbrae’s labeling was “deceptive and misleading in misrepresenting the source of the product’s vanilla flavor as being derived exclusively or predominately from the vanilla plant,” according to the Court’s opinion. 

The Court dismissed the case on the grounds that Barreto had not alleged that there was no natural vanilla present and stated the following: “In  assessing  the  product’s  packaging  as  a  whole,  a  reasonable  consumer  would  conclude that the soymilk has a vanilla flavor and at least some of it is natural vanilla flavor. There is no claim anywhere on the packaging that natural vanilla is the predominant source of the vanilla flavor.”

Westbrae joined a growing number of companies that have defeated deceptive marketing allegations regarding their vanilla-flavored products. According to Bloomberg Law, “Three other judges in the Southern District of New York recently dismissed suits alleging [that] the labeling of ‘vanilla’ almond milk, ‘Smooth Vanilla’ protein drink[,] and ‘Vanilla’ ice cream was misleading because the vanilla flavor didn’t come exclusively from natural vanilla. Like the labels in those cases, Westbrae’s label makes a representation regarding product flavor, not source of the flavor, the court here said.”