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

This Regulatory Update includes information from the second half of June 2020. Please contact Paul Benson, Taylor Fritsch, or Leah Ziemba for additional information on regulatory issues that may affect your business.

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COVID-19 DEVELOPMENTS

  • FDA Releases Q&A Page on Temporary Food Labeling Changes MUST READ

  • FDA and USDA Respond to China’s COVID-19 Food Export Restrictions and Food Testing MUST READ

  • Major Grocery Union Calls for Mask Requirement, Minimum Hourly Wage

  • Survey Reveals Food Habits Since 2010 and During Pandemic

FDA AND USDA UPDATES

  • FDA Announces Unique QR Codes on Certain Food Export Certificates MUST READ

  • USDA Sued for Rejecting Records Request Regarding New Pork Processing Line-Speed System

  • FDA Releases Update on Multistate Cyclospora Outbreak

     

  • While Hemp Organizations Push White House to Resolve FDA CBD Regulatory Barrier, Major Consumer Groups Urge Congressional Noninterference

OTHER DEVELOPMENTS OF INTEREST

  • WI Department of Agriculture, Trade and Consumer Protection to Resume Produce Safety Rule Inspections with Precautions MUST READ

  • World’s Largest Meat Company Unveils “Ozo” Plant-Based Meat Products

  • PepsiCo Retires Aunt Jemima Brand 


COVID-19 DEVELOPMENTS

 

FDA Releases Q&A Page on Temporary Food Labeling Changes
June 18:On a new Q&A page, FDA addresses common queries about its May 22, 2020 guidance, “Temporary Policy Regarding Certain Food Labeling Requirements During the COVID-19 Public Health Emergency: Minor Formulation Changes and Vending Machines.” The temporary policy provides flexibility to the vending machine industry and to manufacturers that make minor formulation changes without making conforming label changes.

The Q&A page explains the rationale of the temporary policy, which was to “help [the food industry] support the food supply chain and meet consumer demand during the pandemic,” and it clarifies how consumers will recognize compliant labeling changes. Additionally, the page addresses concerns about the potential risks for Americans with allergies: “[t]he eight major food allergens under the Food Allergen Labeling and Consumer Protection Act (FALCPA) cannot be substituted for labeled ingredients by manufacturers without a corresponding label change.” Finally, it clarifies the time period during which the temporary policy will remain in effect, explaining that the “flexibilities are intended to remain in effect only for the duration of the public health emergency in the United States, [but]…when the public health emergency is over, extensions may be needed if the food and agriculture sectors need additional time to bring supply chains back into regular order.”

Read the Q&A page here and read a summary of the temporary policy guidance in our May 2020 (Part 2) Regulatory Update here.

 

FDA and USDA Respond to China’s COVID-19 Food Export Restrictions and Food Testing
A recent COVID-19 outbreak in Beijing linked to the Xinfadi wholesale food market sparked fears of a “second wave” in China. Reports that traces of the virus had been detected in multiple samples from the market, including a cutting board used by a seller of imported salmon, led some Chinese health officials to warn that COVID-19 could be “hidden” on imported frozen food product packaging. China began testing foods for coronavirus, suspending certain imported shipments, restricting food exports, and demanding safety guarantees from trade partners. FDA and USDA, among other agencies, were quick to respond to these efforts to limit COVID-19 transmission.

On June 16, Frank Yiannas, FDA’s Deputy Commissioner of Food Policy and Response, tweeted: “The FDA is aware of reports that China will begin testing foods (particular produce, seafood and meat) for COVID-19. There is currently NO evidence of the transmission of COVID-19 through food and there are no known or suspected cases linked to food.” He included a link to FDA’s COVID-19 FAQ page in his Twitter post.

On June 21, China’s General Administration of Customs announced its suspension of imported shipments of poultry from a Tyson Foods plant in Springdale, Arkansas, citing concerns about a cluster of COVID-19 infections at the plant. Also on June 21, PepsiCo announced that it had shut down its Beijing potato chip factory due to eight confirmed cases of coronavirus.

In addition to these restrictions on food exports, the General Administration of Customs China (GACC) wrote to the food safety agencies of their main trading partners “to officially request assurances that food processing establishments eligible to export to China follow measures to prevent any COVID-19 contamination of food products during food production,” according to Seafood Source.

On June 24,  USDA Secretary Sonny Perdue and FDA Commissioner Stephen M. Hahn, M.D., issued a  joint  statement responding to “efforts by some countries to restrict global food exports related to COVID-19 transmission,” stating that such efforts “are not consistent with the known science of transmission” and that “[t]here is no evidence that people can contract COVID-19 from food or from food packaging.”

The World Health Organization (WHO), Centers for Disease Control and Prevention (CDC), United Nations’ Food and Agriculture Organization (FAO), USDA, and FDA continued to maintain that there was no evidence supporting COVID-19 transmission via food products or food packaging.

Read FDA and USDA’s joint statement here.

 

Major Grocery Union Calls for Mask Requirement, Minimum Hourly Wage
June 25: The United Food and Commercial Workers International Union (UFCW), which represents thousands of grocery store, meatpacking plant, and nursing home employees, pushed for greater protections, a $15 minimum hourly wage, and hazard pay for its members in all states where coronavirus cases were rising. The union also called for the creation of a national public registry requiring employers with over 1,000 workers to disclose the number of employees who have gotten sick or died from COVID-19 each month. As of June 25, 238 union members had died from COVID-19, and more than 29,000 members in food retail, meatpacking and health care had been affected by or exposed to the virus.

On a call with reporters cited in a June 25 CNBC article, Marc Perrone, president of UFCW, said, “Contrary to some of what employers — and I think even some of our government leaders — want us to believe, COVID-19 still is very real.”

 

Survey Reveals Food Habit Since 2010 and During Pandemic
June 9: According to the International Food Information Council’s (IFIC) 2020 Food and Health Survey, 85% of consumers in the U.S. changed their food choices or food preparation methods because of the COVID-19 pandemic. 60% of those surveyed reported cooking at home more frequently, one-third reported snacking more frequently, 20% reported eating more healthily, and 20% reported eating more pantry or freezer pre-made meals. The study found that the pandemic affected younger consumers’ eating habits the most: over 40% of those under 35 reported snacking more than normal, compared to only 26% of consumers over 50.

IFIC’s survey also demonstrated trends in food habits and attitudes over the past decade. The factors that most influence food-purchasing decisions remained consistent: taste (the highest ranking), price, healthfulness, and convenience. On the other hand, the impact of food manufacturers’ commitments to sustainability, environmentally conscious farming practices, and the healthiness of foods on purchase choices steadily grew over the decade. Furthermore, over 40% of consumers reported familiarity with the Dietary Guidelines for Americans, compared to just 20% in 2010. Greater awareness of the guidelines potentially contributed to a greater emphasis on heath in food-purchasing decisions.

Access IFIC’s 2020 Food & Health Survey here.


 

FDA AND USDA UPDATES

FDA Announces Unique QR Codes on Certain Food Export Certificates
June 22:Beginning June 29, 2020, the “Certificate to a Foreign Government” and “Certificate of Exportability” for human food products will include “a unique QR code to allow easier verification of the authenticity of these certificates,” FDA announced.

Thanks to this update, “anyone who receives a certificate from a U.S. exporter can scan the QR code and see a copy of the certificate as issued by the FDA,” the agency noted in its Constituent Update. The agency claimed that using QR codes will make verification of FDA-issued export certificates more efficient and streamlined than the current system, though it reiterated that FDA does not require export certificates in order to export foods to foreign countries.

Read FDA’s Constituent Update here.

 

USDA Sued for Rejecting Records Request Regarding New Pork Processing Line-Speed System
June 19: Nonprofit consumer advocacy group Public Citizen Inc. sued USDA in the U.S. District Court for the District of Columbia after the agency rejected a request for records of pork processing facilities that had signed up to participate in the New Swine Inspection System. On February 17, 2020, Public Citizen requested the information under the Freedom of Information Act, and USDA-FSIS denied its request. After USDA did not respond to the group’s April 24 appeal, Public Citizen filed a complaint to ask the court to compel release of the requested records.

The New Swine Inspection System will eliminate slaughter-line speed caps and allow plant employees to participate more in inspection work. Unions like the United Food and Commercial Workers International Union (UFCW) have advocated against the rule because of the dangers it could pose to facility workers. Meanwhile, the government has argued that faster line speeds will increase line production and that “flexible oversight” could lead to safer working conditions.

Read Public Citizen’s complaint in Public Citizen v. USDA here (PDF).

 

FDA Releases Update on Multistate Cyclospora Outbreak
June 23:FDA addressed a multistate outbreak of Cyclospora infections across the Midwestern U.S., which were potentially linked to “ALDI, Hy-Vee, and Jewel-Osco grocery store brand ‘garden salads’ containing iceberg lettuce, red cabbage, and carrots.” FDA began its investigation of the outbreak of Cyclospora illnesses on June 19. On June 20, Hy-Vee and Jewel-Osco recalled their 12-ounce bagged “garden salad” products, manufactured by Fresh Express, from Midwestern states where they were sold, and on June 23, Aldi followed suit.

Read FDA’s Outbreak Investigation page here.

 

While Hemp Organizations Push White House to Resolve FDA CBD Regulatory Barrier, Major Consumer Groups Urge Congressional Noninterference
Demonstrating growing impatience with FDA’s ongoing evaluation of cannabidiol (CBD) use in dietary supplements and food additives, hemp organizations lobbied for expedited action by the White House. Major consumer groups, meanwhile, pushed for a “hands-off” approach to give the agency the requisite time to gather resources and knowledge for safe CBD regulation.

The 2018 Farm Bill removed hemp and hemp derivatives from the Controlled Substances Act (CSA), but its preservation of FDA’s authority to regulate cannabis products created uncertainty for the nascent hemp industry. On June 16, 2020, seven hemp organizations sent President Trump a letter encouraging him to resolve “the regulatory barrier created by FDA that has prevented FDA from recognizing cannabidiol (CBD) as a legitimate botanical ingredient for use in food and dietary supplement products.” Though the letter was addressed to President Trump, it also was sent to Vice President Mike Pence, Trump and Pence’s chiefs of staff, and members of Congress, including Sen. Majority Leader Mitch McConnell (R-KY) and Rep. Collin Peterson (D-MN). “The industry has great potential to help American farmers and create jobs,” the letter stated, “but we need support to help processors get established and grow the market.”

On June 17, 2020, four major U.S. consumer groups pushed Congress to reject such proposals to expedite approval of CBD in food and dietary supplement products. A letter co-signed by the Consumer Federation of America, the Center for Science in the Public Interest, Consumer Reports, and the Public Health Institute “urge[d] Congress to reject any attempts to force federal regulators to immediately legalize cannabidiol (CBD) use in dietary supplements and food products.” The letter expressed various concerns about CBD, including the risks of mis-labelling or poor labeling of CBD-derived products, potential side effects, and possible contaminants. It also advocated for Congress to expand FDA’s authority to regulate supplements and to give it “more robust general funding for inspections.” The letter warned, “Forcing the FDA into rushed decisions and to prematurely implement major regulatory changes would result in an unsafe CBD market and distract the FDA from its current pandemic response and recovery efforts.”

Read the consumer groups’ letter to Congress here (PDF). 


OTHER DEVELOPMENTS OF INTEREST

WI Department of Agriculture, Trade and Consumer Protection to Resume Produce Safety Rule Inspections with Precautions
Beginning the week of June 29, Produce Safety staff at the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) will resume modified operations. FDA lifted its March 2020 partial stop work order, which halted routine compliance inspections due to COVID-19, on June 5, 2020.

DATCP’s Produce Safety team developed a three-phase return-to-inspection work plan based on suggestions from the national Association of Food and Drug Officials (AFDO). Phase one will require the use of personal protective equipment (PPE), social distancing of at least 6 feet whenever possible, and the sanitization of all equipment between inspections, and it will allow each staff member to inspect only one farm per day. DATCP will announce the details of phases two and three on a later date.

 

World’s Largest Meat Company Unveils “Ozo” Plant-Based Meat Products
Week of June 15:After delaying a launch initially set for April 2020, JBS, the world’s largest meat company, debuted its own line of alternative meat products via Colorado-based subsidiary Planterra Foods. Branded “Ozo,” the product line contains burgers and chorizo alternatives made with a blend of pea and rice protein fermented by shiitake mushrooms. Ozo initially will be sold at Kroger stores in 12 states and Albertsons and Safeway stores in Colorado and New Mexico.

Planterra entered a crowded market, where it will face off against major plant-based competitors Beyond Meat and Impossible Foods. During the pandemic, COVID-19 outbreaks at meatpacking facilities and meat shortages across the country led to massive spikes in demand for plant-based meat products. According to the data company SPINS, sales of refrigerated meat alternatives increased by 241% during the peak of meat panic-buying in April. Furthermore, sales of plant-based meats were growing 27% more rapidly in 2020 than in 2019.

 

PepsiCo Retires Aunt Jemima Brand
June 17:Amidst ongoing protests and the growing impact of the Black Lives Matter movement across the country, PepsiCo Inc. announced its retirement of the Aunt Jemima Brand, the 130-year-old name and imagery of which were rooted in the minstrel show song “Old Aunt Jemima.” PepsiCo will remove the image of an African American woman from the brand’s pancake mixes, syrups, and other products, and it will announce a new brand name after its first phase of packaging changes, set to appear throughout the fourth quarter. Additionally, the Aunt Jemima brand will donate $5 million to support the African American community over the next five years.

Kristin Kroepfl, vice president and chief marketing officer of Quaker Foods North America, was quoted in a Food Business News article: “As we work to make progress toward racial equality through several initiatives, we also must take a hard look at our portfolio of brands and ensure they reflect our values and meet our consumers' expectations… We recognize Aunt Jemima's origins are based on a racial stereotype. While work has been done over the years to update the brand in a manner intended to be appropriate and respectful, we realize those changes are not enough. We acknowledge the brand has not progressed enough to appropriately reflect the confidence, warmth and dignity that we would like it to stand for today.”

 

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