December 12, 2018

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“NOT-so-whole” -“whole grain” crackers face new court action

The Daily Intake by Keller and Heckman LLP summarize Kellogg Co.’s latest label troubles with “whole-grain” CHEEZ-IT crackers.  Plaintiffs brought the original lawsuit because “whole grains” were not the first  or even second ingredients in the snacks.  The case was dismissed in 2017 but resurfaced following the court appeals process.

How the appeal’s court views the label content vs the original judge’s view is a reminder of the “luck of the draw” and “just cause your neighbor is doing it….it may not be in your favor.”

Read about the comments on Keller and Heckman’s site

November 19, 2018

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Pacing the halls for details of Bioengineered labeling requirements

Join those who are anxiously pacing the halls because USDA proposed “bioengineered food” or “BE” term could replace “GMO”.  Timing of this “BE” labeling disclosure (requirements) will coincide with the FDA’s compliance date for nutrition facts and supplement facts changes.

December 1, 2018 looms as one of several major announcements for labeling rules in both the food and supplement industries.  That date marks the expected announcement of the USDA’s decision for how and what to label genetically engineered content of foods (and supplements).  This becomes the federal requirement to disclose “GMO” content on a majority of American foods, including those imported to the USA.  It was signed in 2016 as a replacement for the state-by-state requirements (like Vermont’s GMO law).

Watch the federal review progress at the Office of Management & Budget’s dashboard.

 

 

November 7, 2018

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A little help from our Agency friends

FDA published 2 more guidance documents to help companies update their Nutrition Facts (and Supplement Facts) labels. The Agency provided more details about “added sugars” from fruit & vegetable materials as well as clarity in what is a “single serving” container with and without dual column displays.

Additionally, FDA confirmed the date companies are working toward is the date the label is applied to the product.  The labels compliant to the May 2016 regulatory updates must be applied to retail packaged foods on January 1, 2020 (or 2021 if under $10million in sales). That means there will be many years for the marketplace to be a mix of the “old” and “new” Nutrition Facts and Supplement Facts labels.

[…and, yes, the FDA has moved away from calling these “NFP” and “SFP”. These are no longer “panels” but “labels”.]

Guidance for Industry: Nutrition and Supplement Facts Labels Questions and Answers Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals
Draft Guidance for Industry: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion, Reference Amounts Customarily Consumed, Serving Size-Related Issues, Dual-Column Labeling, and Miscellaneous Topics

 

October 29, 2018

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FDA requests information on sesame as allergen in USA

FDA issues a press release to request information (RFI) on sesame as an allergen for USA consumers. The Agency seeks data and incidences of sesame allergens as the USA does not currently require disclosure of sesame as one of the 8 major USA allergens.  (In other countries, sesame is a required allergen declaration.)

Manufacturers should not change their allergen declarations (i.e., “Contains:” statement) until FDA formally makes a new rule.

The comment period opens October 30, 2018 and will remain open for 60 days.

All submissions received must include the Docket No. FDA-2018-N-3809.

Comments and information can be submitted to

To submit electronic comments, go to https://www.regulations.gov and search for Docket No. FDA-2018-N-3809.

Written comments must be sent to:

Docket Management Staff (HFA-305)

Food and Drug Administration

5630 Fishers Lane, Room 1061

Rockville, MD 20852

October 22, 2018

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Cultured cells as “meat & poultry” discussed by FDA & USDA/FSIS

Check those holiday menus–those traditional menu items may not be what you think in the future!

What is “meat” and “poultry”?  Join FDA and USDA/FSIS for a free 2-day webinar on cell-cultured meat and poultry.

October 23-24, 2018

The first day of the meeting will focus primarily on the potential hazards that need to be controlled for the safe production of animal cell cultured food products and oversight considerations by regulatory agencies. The second day of the meeting will focus on labeling considerations.

Representatives of industry, consumer groups and other stakeholders are invited to participate in the meeting. Attendees are encouraged to pre-register to attend the meeting. Pre-registration is available at the Meetings and Events page on the FSIS website.

Webinar and meetings will be held on Oct. 23 from 8:30 a.m. to 4 p.m. (EAST COAST), and Oct. 24 from 8:30 a.m. to 3 p.m. (EAST COAST) in the Jefferson Auditorium in the U.S. Department of Agriculture South Building, 1400 Independence Ave. SW, Washington, DC, 20250.

First day webinar link

 

October 3, 2018

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Plant-based dairy food names & perceptions sought by FDA

Updating and understanding the names of plant-based dairy food alternatives continues FDA’s effort to modernize regulations.  FDA is gathering information on what it could use to regulate the names “soy milk”, “almond ice cream”, or “vegan mozzarella cheese”.

FDA posted a request for comments, surveys and data related to how consumers view and use alternatives to cow’s milk and related products.   The Federal Register announcement and accompanying press release demonstrate FDA’s concern about the nutrient differences between animal- and plant-based products.

The primary health concerns are based in potential nutrient deficiencies children may experience if dairy food alternatives are low or lacking key vitamins, minerals or essential amino acids. The FDA expressed concern that the USDA national database of food composition tables may be limited in characterizing the real world offerings of plant-based milks, yogurts and cheeses.

The FDA has 5 broad areas for information gathering. Consumer selection of dairy alternatives for “sustainability” and “animal husbandry” are not specifically called out. Rather, these concepts would fall under the broader umbrella of consumers choosing dairy alternatives for lifestyle reasons.

Federal Register text posted here

Comments accepted until 11/27/2018 for Docket No. FDA-2018-N-3522   https://www.regulations.gov

 

 

September 5, 2018

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Nominations open to 2020-25 Dietary Guidelines Advisory Committee

Professionals are sought for federal committee to shape food and nutrition policies. USDA and the Department of Health & Human Services are seeking nominations for the committee developing the 2020-25 Dietary Guidelines for Americans.  This committee is expected to start Fall 2018/Winter2019 and meet 5 times.  Its duties will be to establish more of a framework for federal nutrition programs, particularly the nutrient needs for pregnant women and children from birth to 24 months.

The role is an independent, science-based advisory role.  Historically the committee has had challenges finding industry-experienced experts.

Applications Due By: October 6, 2018

Pre-publication details announced in Federal Register. http://s3.amazonaws.com/public-inspection.federalregister.gov/2018-19302.pdf

Additional information about the Committee is available at
http://www.dietaryguidelines.gov

The September 5, 2018 USDA Press Release, titled “Nominations now open for the 2020 Dietary Guidelines Advisory Committee”, is posted at
http://www.usda.gov/media/press-releases/2018/09/05/nominations-now-open-2020-dietary-guidelines-advisory-committee

 

May 9, 2018

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Federal Organic and GMO labeling rules proposed by USDA

 

The United States Department of Agriculture released its proposed rules for declaring “bio-engineered food ingredient” content on most foods that are not organically certified. The required disclosure will a federally mandated message rather than a warning, as is the case of with high risk products.

 

Industry and consumers only have until July 3, 2018 to make comments to the proposed rules–with no hope of an extension. USDA has set compliance dates to coincide with the FDA’s new nutrition facts and supplement facts label updates: January 1, 2020 (or 2021 for small manufacturers).

 

Comments are requested by the USDA regarding which disclosures are most suitable and if “TWO pre-approved lists of agricultural crops” make the most practical sense for designation of “b-e” foods and “b-e” food ingredients. The lists would be updated periodically and USDA is seeking comments on this practicality, too.

 

Comments may be submitted online through the Federal eRulemaking portal www.regulations.gov beginning Friday May 4. Comments may also be filed with the Docket Clerk, 1400 Independence Ave., SW, Room 4543-South, Washington, DC 20250; Fax: (202) 690-0338.

The deadline for comments is July 3, 2018

 

The USDA is proposing disclosures on packages –similar to the National Organic Program regulations–in the form of:

  1. logos,
  2. phone numbers that may receive text messages,
  3. electronic codes, or
  4. a designated phrase

The disclosure will not use the popular terms “Genetically Modified Organism” or “GMO”. Rather the USDA believes “bio-engineered” is a more realistic  term to comply to the law signed in 2016. This was the federal law enacted to avert a state-by-state patchwork of GMO-labeling laws.

 

 

The National Bioengineered Food Disclosure Standard Law was enacted by Congress on July 29, 2016. The proposed rule previewed in the May 3, Federal Register.

August 23, 2016

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Lawsuit Against General Mills Advances Over Cheerios Protein Cereal

A federal judge has ruled that General Mills, Minneapolis, must face a lawsuit claiming it misled consumers by marketing Cheerios Protein cereal as a high-protein alternative to regular Cheerios, when the main difference was that it contained 17 times more sugar per serving. Reports last week note that a motion put forth by General Mills to dismiss the matter involving the marketing of Cheerios Protein has been denied in part, leaving the company open to a future lawsuit.

Source: Lawsuit Against General Mills Advances Over Cheerios Protein Cereal

August 22, 2016

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Chobani urges court to toss false advertising suit


A false advertising lawsuit alleging that Chobani’s labels are confusing and deceptive, paints American consumers as credulous fools unable to apply common sense when they go shopping, argues the yogurt maker in court documents urging the judge to toss the case.


Even national brands, get it wrong. The FDA, FTC and more importantly, the lawyers, find it easy to bring suit when you say ZERO.  In generally be very cautious with superlatives like none, zero, all, pure, and the like.

Source: Chobani urges court to toss false advertising suit