Food and Beverage Dispute Update – April 2022 | Shook, Hardy & Bacon LLP


Politico investigates FDA actions on food

Politico published a report about the United States Food and Drug Administration (FDA) based on more than 50 interviews with current and former agency employees, including former FDA commissioners. “There is a remarkable level of consensus that the agency is simply not working,” the report said. “Current and former officials and industry professionals have used terms such as ‘ridiculous’, ‘impossible’, ‘broken’, ‘byzantine’ and ‘a joke’ to describe the state of food regulations at the time. FDA.” Topics examined by the investigation include leadership issues within the agency’s food division, lack of action on foodborne illnesses, the problem of heavy metals in baby foods and delays in nutritional goals.

Sen. Patty Murray (D-Wash.) sent a letter to Commissioner Robert Califf expressing concern over the findings of Politico’s investigation. “This report has highlighted several delays in regulatory action that have endangered public health. More than a decade after the implementation of the Food Safety Modernization Act, the FDA has yet to release the safety standards required by law, and hundreds of people have fallen ill from a foodborne illness. Despite the agency’s acknowledgment of the danger of toxic elements in baby foods, the FDA has failed to enforce strict safety standards, even though report after report has identified unacceptable levels of lead, arsenic, of mercury, cadmium and other toxins in baby food. The agency has not even finalized long-term voluntary sodium reduction goals in foods, despite a recommendation to do so in 2010.

The United States Food and Drug Administration (FDA) has released orientation project on how it will assess the public health significance of a food allergen not listed as a major food allergen. Topics covered in the guidelines include (i) scientific factors that the FDA will consider; (ii) what types of information will be relevant for the labeling and production of foods containing the allergen; and (iii) recommendations for identifying and analyzing evidence for the assessment of an unlisted food allergen.

Lawsuit Alleges Gorton’s Inc. Misled ‘Sustainably Sourced’ Tilapia

Two consumers have filed an alleged class action lawsuit alleging Gorton’s Inc. misled consumers about the environmental impact of the fish it sells. Spindel v. Gorton’s Inc., no. 22-10599 (D. Mass., filed April 21, 2022). “Gorton’s sustainability claims lead consumers to believe the products are ‘sustainably sourced’. Consumer research demonstrates that claims like Gorton’s suggest to consumers that tilapia is sustainably sourced in accordance with high standards of environmental and animal welfare,” the complaint argues. “In reality, the products are made from tilapia which are industrially farmed using unsustainable practices that are environmentally destructive and inhumane.” Plaintiffs argue that Gorton sources tilapia from farms in China using pond aquaculture, “a particularly risky form of fish farming because, among other issues, this method is typically used in areas where tilapia ponds are” vulnerable to river flooding.” creating the risk of releasing the “highly invasive” tilapia into local waters. consumer protection across the country.

The U.S. District Court for the Southern District of New York has given final approval to a $7.5 million settlement in a lawsuit alleging that packaging by Godiva Chocolatier Inc. misled consumers into believing that everything its chocolate was produced in Belgium. Hesse v. Godiva Chocolatier Inc., No. 19-0972 (SDNY, order entered April 20, 2022). The approval dismisses concerns raised by six state attorneys general that elements of the settlement were too favorable to Godiva. Their concerns included a $25 cap on proof-of-purchase claims as well as a lack of settlement notices on Godiva’s website, but the court found the cap reasonable and noted that Godiva sent 8 .2 million initial emails and 7.7 million reminder emails to customers to provide notice of settlement.


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