Food Law Outlook for 2014

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By Steve Toeniskoetter, Faegre Baker Daniels LLP

2013 was a landmark year for food law and regulation, and the momentum is likely to continue for 2014.  While in no way comprehensive, this article previews some of the largest anticipated issues facing the food industry in 2014.

Food Labeling Litigation
The last six years have seen an explosion in the filing of consumer fraud class actions targeting labeling and advertising of food and other consumer packaged goods.  Plaintiffs’ attorneys have become increasingly sophisticated, finding new labeling violations – including some that are highly technical in nature – upon which to base their claims.  But 2014 may be the year we turn a corner on these claims.  Courts in California have become increasingly wary of these suits, closely scrutinizing claims, proposed settlements, and motions to certify classes.  Several cases on appeal, including the Pom Wonderful LLC v. The Coca Cola Company case before the U.S. Supreme Court this year, have the potential to impose stricter limits on these cases going forward.

PHO/Trans Fat Ban
Late in 2013, FDA published its "Tentative Determination Regarding Partially Hydrogenated Oils (PHOs)," finding that PHOs are not Generally Recognized as Safe (GRAS) under FDA regulations.  In essence, this determination would ban artificial trans fats – those produced through partial hydrogenation of oils – unless the industry is able to push through a food additive petition for PHOs.  This issue is of particular concern to processors of baked goods, which rely upon PHOs for their functional properties.  FDA is expected to announce a final determination in 2014, with PHOs likely being phased out over the course of several years.  FDA’s determination may, however, also serve as a basis or catalyst for lawsuits against food processors, alleging that PHOs harmed consumers’ health over time.

GMO Labeling & Litigation
While Proposition 37 and its analog in Washington State failed in 2012 and 2013, the issue of mandatory labeling of genetically engineered, or so-called "Genetically Modified Organisms" (GMOs), continues to be a hot topic.  Efforts are underway at both the legislative and regulatory levels in Washington, D.C. to come to some form of uniform national compromise that the food industry can live with - instead of facing a patchwork of state-based laws.  In the meantime, we expect consumer activist groups and plaintiffs’ attorneys will continue to press the issue through false labeling lawsuits and grassroots activism campaigns through 2014.

FSMA Implementation
Near the end of 2013, FDA published the last of its major proposed rules implementing the Food Safety Modernization Act (FSMA), focused on food defense.  FDA also announced it would be making major revisions to the produce safety proposed rule as a result of input it received over 2013.  Those revisions, along with additional revised rules, are expected to be published this summer.  Full implementation of most of the key rules in FSMA are over a year off, but we expect 2014 will be a year when the rules will be in a sufficiently definite form that processors can begin seriously evaluating and revising their existing SOPs and HACCP plans for consistency with FSMA. 

Other issues to watch in 2014 include further scrutiny of the GRAS process by both consumer groups and FDA, changes to nutrition labeling expected mid-year, slack fill legislation and litigation, allergen thresholds, menu labeling rules, more clarity on country of origin labeling, and maybe even a rulemaking process for defining "Natural."  In short, 2014 is poised to be another year of big changes and challenges for food law and the food industry.

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