Happy New Year from the Alston & Bird Food, Beverage & Agribusiness Team! A Look Ahead to See What 2022 May Bring
Many year-end publications often feature a look back at the highlights of the previous year. Candidly, there are few things that we would rather put in our rearview mirrors more than all things 2021. We instead opted to look forward at what the food, beverage, and agribusiness industry can expect in 2022.
Few industries have adapted as well to meet the challenges presented by an ongoing COVID-19 pandemic and the truly remarkable supply chain issues that it presented. We are grateful for our clients, friends, and colleagues who still manage the time to read this publication while keeping a nation fed and refreshed. You have our gratitude and our sincerest thanks.
And without further ado, here's a toast to a prosperous (and punny) 2022!
A long-expected (hint hint FDA) New Year's gift: an update to the "healthy" definition?
Whether you've been naughty or nice, you are in luck: the FDA is expected to update its regulatory definition for "healthy," an implied nutrient content claim. The FDA's current definition is focused on specified levels of total fat, saturated fat, cholesterol, and sodium, but that is all subject to change. As of this writing, an updated definition of "healthy" is sitting with the Office of Management and Budget for review, and the FDA has indicated the proposed rule will reflect modified limitation for certain nutrients, including saturated fat, sodium, and added sugar. What's more, the FDA has already begun the process to develop a symbol that manufacturers can use for products that meet the updated definition.
Wait, those gingerbread cookies are not actually "nutritious" (or "healthy" or "good for you" or "wholesome")?!
The year 2021 witnessed landmark settlements in the "healthy cereal" and breakfast bars suits pending in California federal courts. These suits are not a flash in the pan, and we suspect "implied health" claims will remain a hot-button issue for all food and beverage products and alcohol products especially. We have already seen lawsuits challenging the labeling and marketing of alcoholic beverages that highlighted the inclusion of nutrients and ingredients perceived as "healthy." We expect this trend to continue as new products are introduced into the market that leverage the potential benefits of their ingredients.
Have yourself a merry ... bioengineered food disclosure (starting January 1, 2022)!
January 1, 2022 is the mandatory disclosure deadline for the USDA's bioengineered food disclosure requirements. For the first time on the federal level, this will require manufacturers, importers, and certain retailers to disclose the presence of bioengineered food or food that contains bioengineered food ingredients on products labeled for U.S. retail sale. But are manufacturers ready? Only time will tell. Stakeholders should also monitor the current challenge to the USDA's final regulations pending in federal court in California: Natural Grocers v. Perdue, No. 3:20-cv-05151 (N.D. Cal.).
Is this flavored eggnog?
Last year saw a tremendous spike in the number of challenges to flavoring claims. Plaintiffs are taking several approaches, with some targeting "natural" claims when the product contains allegedly synthetic ingredients or alleging that products contain only a negligible amount of the characterizing flavor and are actually flavored by other ingredients. We do not expect these challenges to slow in 2022 and in fact expect to see an uptick in challenges to "made with," "contains," "real," and similar claims about the ingredients used to impart the flavors in a product.
Apple pie, pecan pie, or ... frozen cherry pie?
Did you know that frozen cherry pie is the only fruit pie on the market subject to an FDA standard of identity? So don't worry, you can substitute brown sugar for cane sugar for your packaged pecan pie without FDA oversight. But the FDA's standard for frozen cherry pie may be no more in 2022 because the agency proposes to revoke it as part of its push to modernize standards of identity, some 75 and 80 years old, under its Nutrition Innovation Strategy. We expect additional activity on this front from the FDA, including potential clarity from the agency on appropriate nomenclature for plant-based foods.
New Year, new regulatory pathway for CBD?
In contrast to some states, including California, the FDA continues to take the position that CBD may not be used as an ingredient in food or dietary supplements unless the FDA promulgates a regulation permitting it. Nevertheless, unless health claims are made, the FDA has generally taken limited enforcement action against marketers of CBD as an ingredient in food and dietary supplements. Legislation is pending in Congress to legalize cannabis and products derived from cannabis, so we expect continued pressure to open up the market to CBD in food and dietary supplements in 2022.
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