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Emily grew up on a northern Illinois dairy farm, and now helps clients bridge the gap from farm to fork. She guides clients on complex regulatory issues as they bring dairy products, beverages, fruits and vegetables, processed foods and other agricultural goods to market. At the intersection of agriculture, food and environment, Emily handles compliance matters such as labeling, marketing, permitting and agency inquiries including the Food Safety Modernization Act, Pasteurized Milk Ordinance, USDA National Organic Program and bioengineered food disclosure standard, Generally Recognized as Safe status for food additives and food contact substances, and the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).

On November 9, 2022, the U.S. Alcohol and Tobacco Tax and Trade Bureau (“TTB” or “Agency”) announced that the Agency is considering updating the alcohol trade practice regulations for the first time in 20 years. The current trade practice regulations, codified at 27 C.F.R. parts 6 (tied house), 8 (exclusive outlets), 10 (commerical bribery) and 11 (consignment sales), prohibit certain practices that threaten the independence of retailers and/or give the industry members an unfair advantage over their competitors.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) recently proposed amendments to 27 CFR Part 4 that would allow winemakers to reference added distilled spirits on labels and in advertisements. Currently, wine labels and advertisements are prohibited from including statements indicating that a wine contains a distilled spirit unless the wine is required to bear a statement of composition which references the use of a distilled spirit. While this 1930’s prohibition sought to protect consumers from misinformation, the TTB acknowledges that as the wine industry has evolved, the regulation has become inconsistent with the TTB’s mission. Allowing this additional information provides manufacturers flexibility and empowers them to communicate with consumers more accurately about their wine products.

On May 26, 2022, the U.S. Food and Drug Administration (FDA) issued Warning Letters to four companies[1] concerning the illegal sale of unapproved animal drugs containing cannabidiol (CBD) intended for use in food-producing animals. These Warning Letters demonstrate the first time the FDA chose to focus on marketing CBD-containing products for use in food-producing animals, as opposed to pets, and the specific concerns related to such use. Food-producing animals, as defined by the FDA, include cattle (veal calves, beef cattle, and dairy cattle), swine, chickens, turkeys, and others (such as lambs).

Earlier this month, the U.S. Food and Drug Administration (“FDA”) completed guidance to help companies remove violative products from the market in a swift and effective manner. The guidance describes the precautionary steps companies should take to develop recall policies and procedures that include training, planning, and recordkeeping to reduce the amount of time a recalled product is exposed to the public.

The meat processing sector has been in the crosshairs of the federal government over that last several years due to increased consumer prices for meat products and complaints from farmers and ranchers. These complaints have rallied the Biden Administration to review and consider addressing these issues which are perceived to be caused by consolidation among meatpackers. Specifically, the Department of Justice (DOJ) and the U.S. Department of Agriculture (USDA) announced on January 3, 2022 their shared principles and commitments to use the Packers and Stockyards Act (P&S Act) and federal competition laws to address complaints regarding alleged anti-competitive behavior within the meatpacking industry. This announcement is in response to  President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy, particularly in the meat and poultry processing sector, as well as USDA’s announcement in July 2021 to begin work to strengthen enforcement of the Packers and Stockyards Act (P&S Act).

The U.S. Department of Agriculture (“USDA”) announced late last month that it will be taking measures to support the enforcement of the Packers and Stockyards Act (“P&S Act”), a 100-year-old law designed to protect “poultry farmers, hog farmers, and cattle ranchers from unfair, deceptive and anti-competitive practices within the meat markets.” The proposed revisions involve additional changes to the unlawful conduct provisions of Title II of the P&S Act as well as a menu of grant and loan programs to address problems throughout the food supply chain.

Starting in 2024, U.S. consumers are going to start seeing new formulations of yogurt on supermarket shelves. The U.S. Food and Drug Administration (FDA) has released an amended standard of identity for yogurt as part of its Nutrition Innovation Strategy. According to the FDA, the new, modernized standard of identity for yogurt allows for greater innovation and technical advances in yogurt production while maintaining yogurt’s basic nature and essential characteristics.

Recently, President Biden signed the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law adds sesame to the list of major allergens, requiring its disclosure on food labels as an allergen.  Food manufacturers have until January 1, 2023 to add sesame allergen statements to their labels.

Current food labeling regulation allows sesame to be declared as a “natural flavor” or “natural spice.”  This creates uncertainty for consumers allergic to sesame when they review product labels at their local grocery stores.

Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufacturers of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds.

The U.S. Food and Drug Administration (FDA) recently released a new action plan designed to further reduce exposure to toxic elements, including heavy metals, from foods for infants and young children. This represents the latest development concerning the widespread focus on the levels of heavy metals in baby food. The action plan, titled “Closer to Zero” highlights four steps that the FDA will take over the next three years to reduce exposure to toxic elements “to as low as possible.”