This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.
- Burger King says it never advertised the Impossible Whopper as vegan. On January 30, Burger King said in a court filing that it never advertised its Impossible Whoppers as vegan or promised to cook them without meat residues. It asked a court to throw out a proposed class action filed by a vegan customer concerning the plant-based patties. It said that plaintiff Phillip Williams should have asked how the burgers were cooked before ordering one at an Atlanta Burger King restaurant. Williams had asserted in his lawsuit, filed in US District Court for the Southern District of Florida last year, that he and other consumers were duped into believing that the burgers contained no meat residue whatsoever. Burger King says that customers who want to avoid eating meat entirely can request that their burgers be prepared in an oven instead of the regular broiler and that its website explains clearly how the Impossible Burger is ordinarily prepared.
- Plant-based food companies organize to protect their interests in California. In late January, California became the first state to have a state-based political lobbying group to protect the legal rights of makers of plant-based meat substitutes. The California Plant Based Alliance was formed in Sacramento to help plant-based companies fend off government regulations that can be harmful to their growth. The group was founded by Judie Mancuso, who is well known for lobbying to make California the first state to ban cosmetic testing on animals. She was then involved with the organization Social Compassion in Legislation. California has the fifth-largest economy in the world. A major lobbying group, the Plant Based Food Association, already serves plant-based companies on the national level.
- Virginia takes steps to legally define the term "milk" for food labeling. On January 22, the Virginia House of Delegates passed a bill that would define the term "milk" within the state as the product of a cow or another hoofed mammal. The only exception would be human breast milk. Like many other similar bills in state legislatures, the bill is intended to bar the sellers of products like soy milk and almond milk from calling their products "milk." Even if Virginia enacts the bill into law, it would take effect only if it is also passed in 11 states in the Southern Dairy Compact, an industry group of 13 states working to preserve dairy farming and milk supply in the South. No hearings were immediately scheduled in the Virginia State Senate. North Carolina passed a similar bill last year.
- Court overturns Kansas ag-gag law on constitutional grounds. On January 22, the US District for the District of Kansas issued a ruling that overturned most of the state's so-called ag-gag law, finding that the law violates the First Amendment right to free speech by criminalizing undercover investigations by animal welfare activists at factory farms and slaughterhouses. The plaintiffs, including the Animal Legal Defense Fund, had filed the lawsuit in 2018, claiming that the law violates the free-speech guarantees of the First Amendment. The judge agreed, saying that the law "plainly targets negative views about animal facilities and therefore discriminates based on viewpoint." Ag-gag laws generally prohibit people from going undercover to investigate conditions in farms and slaughterhouses. The Kansas law was the oldest of such laws in the United States, and several other states' laws have been overturned on similar grounds.
- Trader Joe's is hit with the latest of many lawsuits concerning vanilla flavoring. On January 29, a class action was filed against Trader Joe's for allegedly advertising the fact that its Vanilla Almond Clusters Cereal contains vanilla as its exclusive flavoring ingredient, when the ingredients list shows that the cereal contains "natural flavor" rather than actual vanilla. The lawsuit was filed in the US District Court for the Southern District of New York. The complaint argues that vanilla was one substance that was a high risk for "food fraud" because it is expensive and is subject to unstable production and weather conditions. It said that actual vanilla is defined by federal law as a substance that is derived from the tropical orchid of the genus Vanilla. Several other lawsuits have been filed alleging fraud and deception concerning vanilla flavoring.
- Newspaper feature takes aim at FDA's work on E. coli outbreaks. A January 23 investigative article in the Boston Globe argues that the FDA has not acted aggressively enough over the years to stem repeated outbreaks of E. coli in romaine lettuce. More than a year after an outbreak around Thanksgiving 2018, the newspaper wrote, "the E. coli threat is as real as it ever was, and the government still lacks the means, and maybe the will, to take it on." The article noted that leafy green vegetables now cause more E. coli outbreaks than any other food, including beef, but that "the government's efforts to secure the safety of greens remain a pale shadow of its policing of red meat." It said that the FDA has not punished any farm or distributor in the wake of seven outbreaks since 2017 and that the agency relies primarily on voluntary cooperation from the lettuce industry. FDA officials were quoted in the article as saying that the exact source of an outbreak is often hard to determine.
- Petition at USDA asks it to prohibit 31 strains of salmonella from food. On January 19, well-known food lawyer Bill Marler filed a petition – along with three food-oriented nonprofits, Food & Water Watch, Consumer Federation of America and Consumer Reports – with the USDA, formally asking the department to ban 31 salmonella strains from meat. The USDA estimates that about 10 percent of the chicken breasts sold in the US annually contain salmonella, mostly from animal fecal matter. If the USDA approves the petition, it would have broad power to recall or seize meat on the basis that it contains a variety of salmonella strains. It could also pull its inspectors from meat plants, effectively shutting them down, a move that could cost big operations millions of dollars a day.
- Kellogg's will cease using grains that have glyphosate as drying agent. On January 28, Kellogg's announced that, by 2025, it will cease using any wheat or oats upon which glyphosate has been used as a drying agent. Glyphosate has been linked to cancer in a host of lawsuits but has never been found carcinogenic by the US Environmental Protection Agency. In an official statement on its website, Kellogg's said, "We know that some consumers have questions about the use of the herbicide glyphosate as a drying agent a few weeks before harvest, particularly with wheat and oats." It noted that, while using glyphosate as a desiccant is not a widespread practice, some farmers do so in certain conditions – such as when it is necessary to harvest the crop more quickly because of bad weather.
- Hep A in the news. The Mississippi State Department of Health is offering free vaccinations to the public after discovering a restaurant worker had been on the job while infectious with Hepatitis A. State Epidemiologist Dr. Paul Byers said that management and staff of the restaurant, a Huddle House in Laurel, are fully cooperating with the investigation. On February 3 and 4, fearing exposure from another infected employee, the state offered free Hep A vaccines to customers of a Gumbo Pot restaurant in Vicksburg. Mississippi is among the 32 US states that are dealing with a strain of Hep A first identified in 2016. As of February 1, there have been more than 30,000 cases nationwide with nearly 19,000 hospitalizations and 307 deaths. See some of our earlier coverage of the outbreak here and here.
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