On July 22, 2020, the U.S. Food and Drug Administration (FDA) submitted draft enforcement guidance for cannabidiol (CBD) industry for review by the White House’s Office of Management and Budget (OMB). The draft guidance is not yet available. No date or proposed deadline for producing a final policy, but this submission indicates that the FDA is making some progress towards long-awaited guidelines for the industry.
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Industry Insights: Consumer Products Companies Reconfiguring Production Lines to Meet New COVID-19 Needs
Consumers’ response to COVID-19 has led to increased demand for personal protective equipment and other much-needed supplies to aid consumers and healthcare professionals in the fight against the disease. Alcohol-based hand sanitizer is one such product, with the U.S. Centers for Disease Control and Prevention recommending hand sanitizers when soap and water are not available.
Industry Insights: Day Two of the 5th Annual Food Law CLE Conference
On March 3, 2020, CLE International held the second day of Food Law: Navigating the Intersection Between Regulation of Litigation. Now in its fifth year, the conference convenes individuals from the plaintiffs’ bar, academia, industry, and large law firms.
Perkins Coie’s David T. Biderman presented alongside attorneys from the plaintiff and defense bar on the panel “The Reasonable Consumer: An Interactive Debate.” Panelists discussed recent trends in reasonable consumer decisions from the Second and Ninth Circuits and how these developments may affect the reasonable consumer doctrine moving forward.
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Industry Insights: Day One of the 5th Annual Food Law CLE Conference
On March 2, 2020, CLE International held the first day of Food Law: Navigating the Intersection Between Regulation of Litigation. Now in its fifth year, the conference convenes individuals from the plaintiffs’ bar, academia, industry, and large law firms.
Today’s presentations included discussions of litigation case studies and regulatory issues facing food companies in today’s marketplace. For example, in-house counsel detailed their perspectives on the FDA’s standards of identity, the agency’s definition of “healthy,” and other regulatory developments in the context of advances of food and nutritional science. Specifically, general counsel for several food companies discussed issues with compliance with regulations finalized decades ago and ongoing efforts to update regulations using citizen petitions and other means to adapt to changes in food technology. Other panels focused on advocacy strategies of non-governmental organizations through both regulation and litigation. Panelists from the Animal Legal Defense Fund and other public interest organizations discussed allegations of “humane-washing,” and an increase in lawsuits targeting animal welfare claims on consumer packaged goods (CPG) labeling.
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Food Litigation Year in Review 2019
Perkins Coie is pleased to present its fourth annual Food Litigation Year in Review 2019, offering a summary of the past year’s key litigation outcomes, 
regulatory developments, and filing data. Using metrics from our proprietary database, developed by our food litigation team in order to track and understand trends in this area, 2019’s Year in Review again reports an increase in class action litigation, with a record-breaking 173 new lawsuits filed. The upward filing trends in the class action landscape are mirrored in other industries and in the prosecution of related claims: putative class actions against the pet food and dietary supplement industries were on the rise in 2019, as were Proposition 65 warning notices.
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Industry Insight: Mississippi Reverses Course on Plant-Based Meat Alternative Labeling
As we reported in July 2019, many states have enacted laws related to the labeling of meat alternative products and limiting their use of meat-like descriptors like burgers or hot dogs. One such law recently took effect in Mississippi.
Mississippi’s law, S.B. 2922, provided that a plant-based, insect-based, or cell-cultured food product “shall not be labeled as meat or a meat food product” and even imposed potential criminal sanctions for doing so. Just a few weeks after it went into effect, the state has promulgated draft regulations that appear to create a substantial carve-out for plant-based foods. The draft regulations are notable for what is included and omitted from this significant carve out.
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Industry Insights: FDA Sends First Warning Letter Under Recent Rule Regarding Imported Food
The Food Safety Modernization Act (“FSMA”) ushered in a sea change in the government’s regulation of food safety. Pursuant to FSMA, the FDA has promulgated a series of rules, including a 2015 rule related to the Foreign Supplier Verification Programs (the “FSVP Rule”). These programs set forth certain requirements to ensure food safety and appropriate labeling for food imported into the United States. The FSVP Rule requires that importers verify that the food they import into the United States has been produced in a manner that meets applicable U.S. food safety standards.
Just this week, the FDA announced the issuance of its first warning letter under the FSVP Rule. The warning letter was sent to an importer of tahini, which was implicated in a Salmonella outbreak earlier this year. The tahini was recalled after four illnesses were reported. Per a statement attributed to Acting Commissioner Ned Sharpless, “The warning letter follows an FDA inspection conducted in response to a recent Salmonella outbreak, which revealed that the importer was not in compliance with the FSVP.”
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Industry Insights: Outgoing FDA Commissioner Proposes Expedited Steps for Approval of CBD
On July 31, Dr. Scott Gottlieb, the outgoing FDA commissioner, published an editorial in which he proposed how the FDA could expedite approval of food and beverage products that contain cannabidiol (CBD).
In this update, we review Dr. Gottlieb’s proposal which highlights areas of concern for business involved in the CBD industry, such as labeling
Industry Insights: States Have Beef With Labeling of Meat Alternatives
Across the country, states are enacting laws related to the labeling of meat alternative products. Missouri, Mississippi, Arkansas, and Louisiana have passed laws restricting the ability of vegetable-based proteins and other meat alternatives from labeling their products as burgers, hot dogs, sausage, or other meat-like descriptions.
Proponents of the laws argue that the laws are essential for protecting “consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.” These laws have drawn several federal lawsuits so far and will likely be the subject of further controversy.
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Industry Insights: Coffee Products Exempted from Proposition 65
On Monday, June 3rd, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. The rule states that: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.” OEHHA announced the approval of the coffee exemption regulation on Twitter and confirmed that the new rule will take effect on October 1, 2019.
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