May 8, 2015

TO: JPA Members

FROM: Patricia Faison

RE: JPA Regulatory Update

(1) Hogan Lovells Memo - FDA FSMA Implementation Meeting
(2) FDA Issues Draft Guidance on Mandatory Food Recalls
(3) GMA Appeals Court Decision on Vermont GE Food Labeling Law
(4) Healthy School Meals Flexibility Act Introduced in Congress

Hogan Lovells Memo – FDA FSMA Implementation Meeting
In March 2015, JPA notified members that the Food and Drug Administration (FDA) had announced the Agency would hold a “kick-off” meeting (“FDA Food Safety Modernization Act: Focus on Implementation Strategy for Prevention-Oriented Food Safety Standards”) on April 23 – 24, 2015 pertaining to implementation of the FDA Food Safety Modernization Act (FSMA). The agenda and other materials for the meeting were shared with members.

A memorandum prepared by JPA’s legal counsel, Hogan Lovells, providing insight related to the meeting and key outcomes is available here.

FDA Issues Draft Guidance on Mandatory Food Recalls
As you may recall, the FDA Food Safety Modernization Act (FSMA) gave the Food and Drug Administration (FDA) the authority to mandate food recalls when the Agency determines there is reasonable probability that the food is adulterated or misbranded (e.g., undeclared food allergen) and the use of or exposure to the food will cause serious adverse health consequences or death to humans or animals. Yesterday, the FDA issued a notice in the Federal Register (80 FR 26269; May 7, 2015), available here, announcing the Agency has published the “Draft Guidance for Industry: Questions and Answers Regarding Mandatory Food Recalls.” According to the FDA, the draft guidance, available here, “provides answers to common questions that might arise about the mandatory recall provisions and FDA’s plans for implementation.”

The deadline to comment on the draft guidance is July 6, 2015.

GMA Appeals Court Decision on Vermont GE Food Labeling Law
JPA has been providing updates regarding Vermont’s law (Act 120) to mandate the labeling of foods containing genetically engineered (GE) ingredients, which becomes effective on July 1, 2016. Recently, JPA members were advised that Judge Christina Reiss of the U.S. District Court for the District of Vermont had denied a motion for preliminary injunction filed by the Grocery Manufacturers Association (GMA), Snack Food Association, International Dairy Foods Association and the National Association of Manufacturers to prohibit Vermont from implementing the GE food labeling law until the lawsuit, filed in 2014, had been settled.

Yesterday, an article was posted on, available here, noting that GMA is appealing the court’s ruling. According to the article, legal experts that spoke to FoodNavigator predict an appeal may not help manufacturers in the near term. Richard Samp, Chief Counsel at the Washington Legal Foundation is quoted in the article as stating, “An appeal would likely take upwards of two years. Although the appeals court has the power to grant an injunction against enforcement of a statute pending completion of the appeal, that power is rarely exercised. Thus, I expect that the Vermont law will be allowed to take effect in 2016 while the appeal continues.”

GMA’s press release regarding the appeal is available here. GMA notes that Judge Christina Reiss “offered the view that Vermont could pass a state labeling mandate because no current federal law regarding the Food and Drug Administration’s authority over food labeling preempts state action,” and the ruling “shows why Congress should pass the voluntary uniform GMO [genetically modified organism] labeling bill quickly and federally preempt state mandatory GMO laws.” In March 2015, JPA members were notified that Representative Mike Pompeo (R-Kansas) had introduced the “Safe and Accurate Food Labeling Act of 2015” in Congress to prevent state-based GE food labeling laws.

JPA will continue to monitor and provide updates, as information becomes available.

Healthy School Meals Flexibility Act Introduced in Congress
JPA has been providing updates regarding the United States Department of Agriculture’s (USDA’s) effort to implement the Healthy Hunger-Free Kids Act of 2010 (HHFKA) for schools that participate in the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). The Act establishes nutrition standards for foods and beverages sold in schools.

The “Healthy School Meals Flexibility Act” has been introduced in the Senate (S.1146) by Senators John Hoeven (R-ND) and Angus King (I-Maine). According to a press release issued by Senator Hoeven, available here, the legislation “would provide permanent flexibility for schools to comply with the USDA’s sodium and whole grain requirements under the National School Lunch and Breakfast programs.” The press release notes the legislation will not change the requirements for calories, fruits or vegetables. At this time, the complete text of the legislation is not available.

Below is an excerpt from the press release regarding two of the major provisions in the legislation.

  • Whole Grains: Since July of 2012, at least half of all grains offered with school meals have been whole-grain rich. In July 2014, USDA required that 100 percent of all grains be whole-grain rich. The Healthy School Meals Flexibility Act restores the requirement back to 50 percent of total grains to ensure continued access to a wide variety of grain products. This will enable schools to serve items like biscuits, tortillas and pasta that students will eat. In December, Hoeven worked to include a provision in the Agriculture Appropriations bill that allows schools that establish a hardship from the 100 percent whole grain food requirement to serve meals with 50 percent whole grain rich foods. This legislation would provide permanent flexibility for all schools.
  • Sodium: Prevents the Department of Agriculture from requiring further sodium reductions in school meals below the current Target 1 level, which became effective in July 2014. If additional sodium reductions are implemented, schools would have a difficult time meeting targets when serving healthy foods with naturally occurring sodium, including milk, cheese and meat. For example, schools would be unable to serve healthy choices like low-fat, whole grain cheese pizza, many Asian dishes and deli sandwiches.

As always, please contact me with questions or comments.

Patricia Faison

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JPA Staff
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