Will 2021 be the year the FDA finally weighs in on CBD regulations? Will the industry be hit with a wave of liability lawsuits over COVID-19? Will we see a framework for the regulation of cell-cultured meat? FoodNavigator-USA quizzed leading food law attorneys to find out what's on their radar as 2020 draws to a close.
Angel Garganta, partner, Venable: I'll be looking out for class action challenges to ‘no antibiotics’ claims on foods, particularly dairy. Certain plaintiffs’ lawyers have begun pushing the novel theory (modelled on prior challenges to ‘natural’ and ‘non-GMO’ claims) that even if foods themselves do not contain antibiotics,* ‘no antibiotics’ claims are false or misleading if antibiotics may have been used at some point in the supply chain for the food (e.g., if cows that produced milk may have been treated with antibiotics when sick).
*The use of antibiotics in food is generally prohibited by USDA and other regulations, and foods such as milk are stringently tested to ensure that they contain no antibiotics.
Ivan Wasserman, managing partner, Amin Talati Wasserman: One important thing we may see is FDA taking steps to modernize aging food standards of identity by establishing a set of principles to use when considering whether to establish, revise, or eliminate a food standard. FDA started that effort with USDA all the way back in 2005, and re-opened the comment period this year, suggesting a renewed interest in the long-overdue effort.
Brian P. Sylvester, special counsel, Covington & Burling: I expect cell-based meat to take center stage in the evolving food regulatory conversations occurring in the US and around the world. Earlier this month, in a global first, Singapore greenlighted the first ever cell-based meat product for human consumption. The question on everyone’s mind is whether and to what extent this news will translate to cell-based meat products making their way to Americans’ plates. I expect the regulatory efforts currently under way at the FDA and USDA will continue in earnest, and that we will begin to see tangible direction on issues like premarket safety and labeling.
William Acevedo, partner, Wendel Rosen: COVID-19 related impacts will still be felt in 2021. As we all work to return to some semblance of normalcy, food and beverage companies will likely continue to wrestle with potential business stressors such as supply chain durability, pivots to alternative channels, managing relationships with key suppliers, distributors and/or customers, and minimizing liability risks, whether they be employment-related or contractual in nature.
Dale Giali, partner, Mayer Brown: I am struck by how the consumer class action bar is channeling ghosts from past, present and future, which means we are seeing -- and expect next year -- a barrage of claims of purported false advertising challenging ingredient naming, ingredient attributes, potential functions of ingredients, featuring some but not all ingredients, featuring super ingredients, better-for-you product positioning, no artificial statements, sugar statements, sustainability statements, humane treatment statements, flavor labeling, labeling images, packaging size in relation to product amount, fill level, fill count, certifications, 100%, pure, trace amounts of something labeled as not present, and that favorite from holidays past – every variant of the word 'natural.' I say bah humbug to the plaintiffs’ bar.
Ryan Kaiser, managing partner, Kaiser IP: While I have a personal interest in the clarification of plant-based food products, I expect one subject I (and a lot of others) will be watching is the legal regulated cannabis products, particularly CBD. It will be nice to hopefully get some guidance from FDA to remove some of the uncertainty that comes with marketing CBD products
Jeni Lamb Rogers, partner, PSL Law Group: I’ll be watching the FDA proposed Food Traceability Rule, which is intended to facilitate more rapid traceback investigations in a foodborne illness outbreak. To accomplish this, the proposed rule creates detailed requirements for collecting common data elements during critical tracking events and information sharing throughout the supply chain-- including restaurants and retailers-- for foods included by the FDA on the food traceability list and foods that contain those foods as ingredients.
Overall, I see the rule producing a new set of challenges for food and beverage manufacturers in classifying foods that they receive, produce, and ship on the list, retooling internal traceability systems, and managing traceability responsibilities contractually between parties in the supply chain.
Stephen Gardner, consultant on food law and class action issues: Although I never cease to be amazed (and appalled) at the abilities of food marketers to create claims out of thin air, I’ll be looking next year with particular interest at the efforts of big food companies and perhaps federal agencies to slow the rise of plant-based foods.
