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Food & Beverage Law Update

Feb 10, 2014

President Obama's administration is expected to undertake an aggressive regulatory and executive action driven agenda for the remainder of its second term. The Food and Drug Administration (FDA) is likely to take an important role in the development and implementation of new regulations which are likely to impact the food and beverage industry. Businesses should remain vigilant for regulatory actions affecting food processing, product labeling, and food safety.

The implementation of the Food Safety Modernization Act (FSMA) remains an important priority for Congress. On February 5, the House Energy and Commerce Committee held a hearing titled, "Examining the Implementation of the Food Safety Modernization Act." Top issues of concern included regulations governing sanitary transportation, food safety controls, and overseas inspections. As the January 30, 2015 court appointed deadline to finalize FSMA regulations approaches, we are likely to see increased activity from federal regulators.

Measures affecting the food and beverage industry expected to be addressed through agency action include:

  • Food Processing: The FDA is currently studying several proposals that will affect the use of certain ingredients in the production of food. If finalized, current proposed rules governing the use of partially hydrogenated oils, or trans fats, are likely to be amended to allow food manufacturers to use such substances, only as additives, if they have been determined not be cause harm to public health. The FDA is also considering the feasibility of enacting rules that would effectively ban and remove the use of trans fats in food products.
  • Product Labeling: New regulations governing how and where nutritional information is presented will be subject to agency action. A rule implementing The Affordable Care Act mandate that calorie counts must be posted on vending machines operated by companies with more than 20 machines and restaurants with more than 20 locations is currently being finalized. In addition, the Nutritional Facts label present on most products is likely to be revamped to include revised information. Provisions included within the Farm Bill will require the implementation of rules mandating that beef sold in stores be labeled with information denoting the country of origin of the meat.
  • Food Safety: A new rule proposed by the FDA aimed at preventing food contamination would require shippers, receivers, and carriers of food to comply with additional sanitary transportation measures. A proposal authorized by the Food Safety Modernization Act of 2011, seeks to regulate the use of manure and other fertilizers in an attempt to reduce food contamination. Rules governing the Foreign Supplier Verification Program, once implemented, will require food importers to verify imported food has been produced in a manner consistent with U.S. food production regulations. The FDA has also expressed an interest in examining whether caramel coloring used in sodas and other foods, contain cancer causing properties.

New regulations will have important implications on how the food and beverage industry manages their operations. Businesses will have to develop and implement new regulatory operational plans and evaluation mechanisms to avoid penalties for non-compliance. Please contact us if you have any questions or concerns as you begin to formulate your company's regulatory advocacy plan or compliance response to new regulations.