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

This Regulatory Update includes information from May 29 through June 15, 2020. Please contact Paul Benson, Taylor Fritsch, or Leah Ziemba for additional information on regulatory issues that may affect your business.

For access to articles and resources from our Premium Member law firm, Michael Best & Friedrich, to help navigate this challenging time, please follow these hyperlinks to Michael Best’s COVID-19 Resource Center and CARES Act Relief Resource Center.

 

COVID-19 DEVELOPMENTS

  • CDC and DOL Release Joint Interim Guidance for Agriculture Workers and Employers  MUST READ

COVID-19 INDUSTRY GUIDANCE

  • DOJ Issues Subpoenas to Four Largest U.S. Meatpackers in Antitrust Probe  MUST READ
  • House Republicans Urge USDA to Ease Regulations on Meat Processors
  • House Democrats Express Concerns About Coronavirus Food Assistance Program
  • Flexitarian Movement Gains Traction During Pandemic
  • Eating Away from Home Decreased 51% in March, USDA-ERS Finds
  • FDA Updates COVID-19 Food Safety Webpage

OTHER DEVELOPMENTS OF INTEREST

  • EPA Responds to Ninth Circuit Court Vacation of Dicamba Registrations  MUST READ
  • FDA Commissioner and Deputy Commissioner Tease Elements of “New Era of Smarter Food Safety Blueprint”  MUST READ
  • USDA to Expand E. coli Testing to Additional Raw Beef Products
  • USDA Announces Proposed Rule to Eliminate Livestock Blood Defibrination Requirement
  • International Study Finds Fat and Oil Types to Be Strong Purchase Consideration Factors for Majority of Consumers

COVID-19 DEVELOPMENTS

CDC and DOL-OSHA Release Joint Interim Guidance for Agriculture Workers and Employers
June 2: CDC and the U.S. Department of Labor (DOL)'s Occupational Safety and Health Administration (OSHA) issued interim guidance providing “a template of action to protect agriculture workers” from COVID-19. The guidance offers recommendations for preparation, prevention, and management measures to tackle the “unique challenges” that “[a]griculture work sites, shared worker housing, and shared worker transportation vehicles” can present.

According to OSHA’s National News Release, the guidance recommends that owners and operators take the following measures (in addition to transmission prevention techniques):

  • “Screen agricultural workers for coronavirus symptoms, manage workers who have symptoms upon arrival at work or who become sick during the day, and address return to work after worker exposure;
  • Use touch-free clocks and automatic doors, install plastic barriers when distances of six feet between individuals are not possible, and rearrange chairs and tables in break areas;
  • Implement cleaning, disinfection, and sanitation protocols;
  • Train workers in a language they understand on the signs and symptoms of coronavirus, proper infection control and social distancing practices, and what to do if they or a coworker experience symptoms;
  • Encourage workers to use cloth face coverings in certain circumstances (e.g., when utilizing shared methods of transportation); and
  • Provide and train workers on proper use of personal protective equipment through videos or in-person visual demonstrations.”

Read the interim guidance here and DOL-OSHA’s National News Release here.


COVID-19 INDUSTRY GUIDANCE

DOJ Issues Subpoenas to Four Largest U.S. Meatpackers in Antitrust Probe
June 4:Responding to calls for an investigation of the four biggest U.S. meatpackers over potential antitrust violations, the U.S. Department of Justice’s (DOJ) antitrust division sent civil investigative demands, akin to subpoenas, to Tyson Foods Inc., JBS SA, Cargill Inc. and National Beef Inc.

COVID-19 meat processing plant closures sparked a meat crisis, causing bottlenecks that affected the entire supply chain with meat shortages and climbing meat prices. In early May 2020, a bipartisan group of attorneys general from 11 states wrote a letter to U.S. Attorney General William Barr urging the DOJ to “investigate the state of competition in this industry and the dynamics that are depriving cattle ranchers and American consumers of the benefits of a competitive cattle industry.” They continued, “Given the concentrated market structure of the beef industry, it may be particularly susceptible to market manipulation, particularly during times of food insecurity, such as the current COVID-19 crisis. During an economic downturn, such as that caused by the current pandemic, firms’ ability to harm American consumers through market manipulation and coordinated behavior exacts a greater toll, providing an additional reason for conducting a careful inquiry into this industry.”

Read the attorneys’ general letter to Attorney General William Barr here (PDF).

 

House Republicans Urge USDA to Ease Regulations on Meat Processors 
June 9:In a letter to USDA Secretary Sonny Perdue, Republican members of the House Judiciary Committee urged the agency to loosen regulations on meat processors that made competing more difficult for smaller companies. Signed by Representatives Jim Jordan (R-Ohio), Kelly Armstrong (R-N.D.), Jim Sensenbrenner (R-Wis.), Ken Buck (R-Colo.), Matt Gaetz (R-Fla.), and Greg Steube  (R.-Fla), the letter asked Perdue to “revisit burdensome regulations that create barriers to entry and lessen competition in the nation's meat processing industry,” the majority of which is controlled by four major companies. (Tyson Foods Inc., JBS SA, Cargill Inc. and National Beef Inc. control over 80% of the U.S. beef processing market.) Suggested reforms included giving smaller meat processing companies “more flexibility to comply” with Hazard Analysis and Critical Control Point Plans (HACCP) and allowing smaller processors to participate in the Cooperative Interstate Shipment (CIS) program. 

                         

House Democrats Express Concerns About Coronavirus Food Assistance Program
June 9: In a letter to USDA Secretary Sonny Perdue, Democratic members of the House Committee on Agriculture shared their concerns about implementing Coronavirus Food Assistance Program (CFAP) payments. The letter, signed by House Agriculture Committee Chairman Collin Peterson (D-Minn) and House Agriculture Subcommittee Chairs Jim Costa (D-Calif.), Stacey Plaskett (D-Virgin Islands), and Filemon Vela (D-Texas), listed a number of potential issues with CFAP, including: a lack of “sufficient agency staff in the county Farm Service Agency offices to meet the producer needs related to enrollment in CFAP”; USDA’s investment in “expensive short-term infusions of cash that do not address underlying long-term needs”; CFAP’s failure to recognize the cost premium of organic crops; and CFAP’s failure to distinguish “for the higher value given to crops that are marketed directly through restaurants, farmers’ markets, and other alternative markets.”

Read the letter to Secretary Perdue here (PDF).

 

Flexitarian Movement Gains Traction During Pandemic
New data revealed a surge in retail sales of plant-based foods during the COVID-19 pandemic, with shoppers purchasing more plant-based meat alternatives. According to data from the Plant Based Foods Association (PBFA) and SPINS, a Chicago-based data technology company, sales of plant-based meat, dairy, egg, and seafood alternatives rose by 90% in mid-March, compared to the prior-year period. In the four weeks after the peak of panic buying, sales of plant-based alternatives increased by 27% and surpassed total retail food sales by 90%. Sales of plant-based meat grew at a rate of 61% in the same four weeks – more than double the rate of animal-based meat sales for that period.

The increasingly popular flexitarian movement, which promotes a diet comprised mainly of plant-based foods and a moderate amount of meat and animal products, gained further momentum during the pandemic as meat processing plants temporarily closed and access to beef, pork, and poultry products shrank. Tony Olson, the owner and CEO of SPINS, told Food Business News in a June 2 article that the pandemic preceded “a continued shift in consumer purchasing toward natural and organic products that enhance health and immunity…[T]he plant-based meat boom of last year continues, and as reports of animal-based meat shortages increase, we can expect plant-based meat to gain even more traction.”

Access PBFA and SPINS’s data here.

 

Eating Away from Home Decreased 51% in March, USDA-ERS Finds
Findings from USDA’s Economic Research Service (ERS) demonstrated the stark effects of COVID-19 on away-from-home food expenditures. USDA-ERS found that March 2020 consumer spending on food away from home was 51% lower than that of March 2019, while inflation-adjusted expenditures at grocery stores and other food retailers was 18.8% higher in March 2020 than in March 2019. The agency found similar, though less dramatic differences, between expenditures in February 2019 and February 2020.

These findings signaled a difference between the COVID-19 economic shock and previous ones, such as the 2007-2009 Great Recession, during which expenditures on both food at home and food away from home decreased.

 

FDA Updates COVID-19 Food Safety Webpage
June 2: FDA updated its COVID-19 food safety webpage with advice for companies facing business continuity and supply chain issues. It also added recommendations for companies whose employees report being in close contact with other employees who have tested positive for COVID-19.

Visit FDA’s main COVID-19 webpage here and food safety page here.


OTHER DEVELOPMENTS OF INTEREST

EPA Responds to Ninth Circuit Court Vacation of Dicamba Registrations
June 8:The U.S. Environmental Protection Agency (EPA)issued a cancellation and existing stocks order to clarify the U.S. Court of Appeals for the Ninth Circuit’s June 3, 2020 ruling to vacate current registrations of three low-volatility dicamba products (XtendiMax with vapor grip technology, Engenia, and FeXapan). The Court’s ruling to end the use of some of the most widely used herbicides in the U.S. sparked criticism from EPA and USDA.

EPA Administrator Andrew Wheeler said, “At the height of the growing season, the Court’s decision has threatened the livelihood of our nation’s farmers and the global food supply.” EPA issued its cancellation and existing stocks order in response to “advance compliance, ensure regulatory certainty, and…prevent the misuse of existing stocks,” Wheeler stated. Under EPA’s order, growers and commercial applicators who possessed existing stocks of the dicamba products in question on June 3, 2020 may continue to use them until July 31, 2020.

Responding to the ruling, USDA Secretary Sonny Perdue said, “I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.”

For more information, please see this Michael Best Client Alert. EPA’s News Release is available here and USDA’s Press Release can be found here.

 

FDA Commissioner and Deputy Commissioner Tease Elements of “New Era of Smarter Food Safety Blueprint”
June 2:FDA Commissioner Stephen M. Hahn, M.D. and Deputy Commissioner Frank Yiannas revealed four key elements of the incoming New Era of Smarter Food Safety Blueprint in an “FDA Voices” article. The blueprint, announced as part of the New Era of Smarter Food Safety initiative last year, will outline FDA’s “plans over the next decade to create a more digital, traceable, and safer food system.” FDA has revised the blueprint since the COVID-19 pandemic delayed its release in March 2020.

First, the blueprint will include recommendations for a digitized food system and “advanced analytical tools” to enable tech-enabled traceability of products cycling through the supply chain. Such traceability, Hahn and Yiannas wrote, potentially will “help the FDA and industry anticipate the kind of marketplace imbalances that resulted in the temporary spot shortages of certain commodities we’ve seen in recent months… And it could help us anticipate and help mitigate…food waste.”

Second, the blueprint will advocate for “the use of smarter tools, such as root cause analyses to understand how a food became contaminated and predictive analytics that use data to anticipate the likelihood of contamination…[as well as] virtual or remote inspections.”

Third, the blueprint will call for a focus on the safe production, packaging, and transportation of “foods ordered online and delivered directly to consumers.”

Fourth, the blueprint will highlight the New Era goal of establishing and supporting “food safety cultures on farms, in food facilities, and at home,” with the theme of partnership “woven throughout.”

Read the “FDA Voices” article here and read about the New Era of Smarter Food Safety initiative here.

 

USDA to Expand E. coli Testing to Additional Raw Beef Products
June 4:USDA-FSIS announced the expansion of its routine verification testing for six non-O157 Shiga toxin-producing Escherichia coli (STEC) that are considered adulterants under the Federal Meat Inspection Act (FMIA) to ground beef, bench trim, and other raw ground beef components. The six STEC are O26, O45, O103, O111, O121, and O145. According to its Constituent Update, FSIS hopes that expanded testing will “reduce…foodborne illnesses and deaths, as well as reduced outbreak-related recalls.” 

FSIS invited comments on its proposed expansion of sampling and testing. To ensure consideration by the agency, comments on the notice must be submitted by August 3, 2020.

Read USDA-FSIS’s Constituent Update here and Federal Register Notice here.

 

USDA Announces Proposed Rule to Eliminate Livestock Blood Defibrination Requirement
June 1:USDA-FSIS announced a proposed rule to “remove the requirement that establishments defibrinate livestock blood collected for human food” to “allow the collection of coagulated livestock blood for use in specialty food products,” according to its Constituent Update.

Based on peer-reviewed literature, FSIS “did not identify any scientifically supportable food safety concerns” from coagulated blood, and it concluded that the defibrination requirement was unnecessary for food safety under the Federal Meat Inspection Act (FMIA). “This updated position,” the Constituent Update noted, “is because coagulated blood, like fluid blood, is safe for human consumption, provided it is saved from inspected and passed animals, and otherwise produced and prepared in compliance with all other FSIS regulations.”

FSIS invited comments on its proposed rule. To ensure consideration by the agency, comments on the notice must be submitted by July 31, 2020.

Read USDA-FSIS’s Constituent Update here and Federal Register Notice here.

 

International Study Finds Fat and Oil Types to Be Strong Purchase Consideration Factors for Majority of Consumers
Cargill’s annual FATitudes study, based on data from over 6,000 primary household grocery shoppers in 12 countries, found that 68% of consumers reported “closely monitoring” the types and amounts of fat and oil in packaged foods when shopping. Most consumers reported checking labels for “fat-related claims,” and such claims reportedly made over half of consumers more likely to purchase those products. Over two-thirds of consumers in the U.S. reported avoiding specific fats or oils, among which 83% reporting avoiding saturated and trans-fats. Consumers in the Midwestern U.S. are less likely to monitor fat and oil contents in packaged foods than consumers in the South. Furthermore, the study found that 93% of global consumers reported an awareness of omega-3 fatty acids.

 

THANKS TO OUR PREMIUM MEMBERS