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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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