The Office of Management and Budget (OMB) recently released the Spring 2019 Unified Agenda of Regulatory Actions, which outlines the rulemaking actions currently under development in each federal agency. This memorandum summarizes the major actions that may be of particular interest to the food industry that are being planned by the U.S. Food and Drug Administration (FDA) and the United States Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS), Animal and Plant Health Inspection Service (APHIS), Food and Nutrition Service (FNS), and Agricultural Marketing Service (AMS). After highlighting the most significant priorities, we provide charts for each agency that provide additional details on their plans. More information can be found by clicking on the blue link next to each item, which will take you to a specific page about each agenda item on OMB’s website.

We want to caution that the dates included in the Unified Agenda are not commitments to act on or by the date shown and simply indicate the agencies’ aspirations. Rather than focusing on projected dates, the Unified Agenda is a valuable tool to identify the substantive issues the agencies consider to be priorities for rulemaking.

Click here to read more. 

On June 18, the Food and Drug Administration (FDA) issued its final guidance document on added sugars labeling for (1) honey, maple syrup, and other single-ingredient sugars and syrups; and (2) certain cranberry products. In this blog post, we summarize the FDA’s guidance on the added sugars declaration for each type of product. Notably, for both types of products, FDA is exercising enforcement discretion until July 1, 2021, for implementation of the updated Nutrition Facts labeling rules. This is effectively an 18-month extension from the January 1, 2020 compliance date for larger manufacturers.

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The U.S. Food and Drug Administration (FDA) reached a settlement with the two consumer groups that sued FDA in October 2018 to compel the agency to implement the traceability provisions in the FDA Food Safety Modernization Act (FSMA). The consent order, which was approved by the district court judge on June 11, 2019, establishes a timeline for FDA to publish a list of high-risk foods and engage in rulemaking setting forth additional traceability recordkeeping requirements for facilities that manufacture, process, pack, or hold those foods. The lawsuit was brought in the U.S. District Court for the Northern District of California by the Center for Food Safety (CFS) and Center for Environmental Health (CEH). This memorandum provides background on the FSMA traceability provisions and then summarizes the consent order. As explained in more detail below, FDA is committing to designate the list of high-risk foods and issue a proposed rule that would establish recordkeeping requirements for these foods by September 8, 2020, and then issue the final rule by November 7, 2022.

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On May 23, the Food and Drug Administration (FDA) issued a letter to the food industry “strongly support[ing]” the use of “Best If Used By” labeling to describe the date when a food will be at its best flavor and quality. FDA believes that standardizing the use of date labels for quality reasons will be one helpful step in reducing food waste. Importantly, date labeling is generally not required at the federal level other than for infant formula. It is, however, required by some states. The FDA guidance indicates that when date labeling is used for quality reasons, the recommended introductory phrase is “Best If Used By” – the same phrase recommended by a voluntary industry labeling initiative spearheaded by the Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI).

The letter starts by noting that approximately 30 percent of food is lost or wasted at the retail and consumer level, amounting to approximately 133 billion pounds of food worth $161 billion each year. FDA has found that food waste by consumers can result from fears about food safety caused by misunderstanding around what the introductory phrases on product date labels mean (e.g., “Best If Used by,” “Use By,” and “Sell By”), along with uncertainty about the storage of perishable foods. The agency cites a source estimating that confusion over date labeling accounts for approximately 20 percent of consumer food waste.

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Today the Food and Drug Administration (FDA) issued draft guidance announcing that the agency intends to exercise enforcement discretion to allow the use of “potassium chloride salt” as an alternative common or usual name for “potassium chloride.” Potassium chloride is often used as a partial substitute for sodium chloride (i.e., salt) to facilitate sodium reduction in foods. FDA therefore views today’s draft guidance as consistent with its multi-year Nutrition Innovation Strategy, which aims to reduce the burden of chronic disease through improved nutrition, as well as the agency’s efforts to encourage manufacturers to reduce sodium in foods in the interest of public health. FDA will accept comments on the draft guidance until July 19.

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The Office of Management and Budget (OMB) recently issued an updated memorandum to the heads of executive departments and agencies entitled, “Guidance on Compliance with the Congressional Review Act” (2019 Memo). The 2019 Memo, effective on May 11th, “reinforces the obligations of Federal agencies” under the Congressional Review Act (CRA) to submit rules to Congress, and also clarifies when a rule is to be considered “major” by OMB’s Office of Information and Regulatory Affairs (OIRA). The criteria and process the 2019 Memo sets for triggering OIRA “major” designation are the more significant aspect of the document, as they have the potential to noticeably impact FDA issuance of guidance documents.

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We are writing this memo to bring to your attention that the Food and Drug Administration (FDA) recently published a new final guidance titled: “Preparation of Food Contact Notifications for Food Contact Substances in Contact with Infant Formula and/or Human Milk” (FCN Guidance). The guidance contains recommendations regarding how the scientific information in food contact notifications (FCNs) for infant food use should demonstrate that the food contact substance (FCS) is safe for the specific intended use in contact with infant food. FDA has previously provided guidance for the safety assessment of FCSs. However, the earlier guidance document did not specifically address dietary exposure and safety assessment considerations related to the migration of chemical substances from packaging and other food contact articles as it pertains to infants. FDA meant to fill the gap with this new guidance and the FCSs that would be affected by this guidance document include infant formula packaging for liquid and powdered formula, baby bottles, bottle inserts, nipples, and any other materials that are in contact with infant food.

In this post, we highlight the FDA’s chemistry and toxicology recommendations. Click here to read more. 

On May 31, Hogan Lovells will offer an important training program on conducting a vulnerability assessment under the Mitigation Strategies to Protect Food Against Intentional Adulteration final rule (IA rule), which is part of the FDA Food Safety Modernization Act (FSMA). This 1-day workshop will deliver the standardized “Conducting Vulnerability Assessments” training curriculum developed by the Food Safety Preventive Controls Alliance (FSPCA) with input from FDA.

The course will be taught by Hogan Lovells partners Elizabeth Fawell and Maile Hermida from 8:30 a.m. to 4:30 p.m. on Friday, May 31. Breakfast will be served at 8 a.m. It will be held in the Hogan Lovells office at 555 13th Street NW, Washington, D.C. 20004.

Click here to register for this training program. 

Who should attend this training?

Personnel from facilities and companies covered by the IA rule that want to understand how to conduct a vulnerability assessment using the three fundamental elements method or the “hybrid” method (which combines the Key Activity Type (KAT) method with the three fundamental elements method).

Participants will:

  • Learn in-depth about how to conduct a vulnerability assessment, including recommended preliminary steps, using the three fundamental elements and the “hybrid” approach.
  • Understand the role of the vulnerability assessment in the food defense plan.
  • Engage in interactive discussions and exercises to enhance your understanding of how to conduct a vulnerability assessment.
  • Review useful forms, templates, and resources for conducting vulnerability assessments.

Why attend the Hogan Lovells course?

  • Elizabeth Fawell and Maile Hermida have substantial FSMA experience and have been working on these issues since even before FSMA was enacted. In particular, they have been deeply engaged on the IA rule and how facilities can comply with its requirements for several years. Elizabeth was also one of the few Trainers of Trainers for this training program, reflecting her comprehensive expertise.
  • Based on our experience with an understanding of existing food defense plans across the food industry, we can explain where companies need to revise their programs to be FSMA compliant and how to comply with the rule in a practical way.
  • Participants who successfully complete the program will receive the FSPCA’s course completion certificate.

What are the compliance dates?

  • July 26, 2019, is the compliance date for companies with more than 500 full-time-equivalent (FTE) employees.
  • July 27, 2020, is the compliance date for companies with less than 500 FTE employees.

​ Cost

US$800 for each participant.

Additional notes

  • The training program offers legal information, but will not provide legal advice specific to any company’s IA compliance.
  • Participants are encouraged, though not required, to take the online course “Conducting Vulnerability Assessments Using the Key Activity Types” before attending this course. You can access the course here.
  • The IA rule requires that individuals conducting or overseeing the conduct of a VA “have successfully completed training for the specific function at least equivalent to that received under a standardized curriculum recognized as adequate by FDA or be otherwise qualified through job experience to conduct the activities” (21 CFR 121.4(c)(2)). This training developed by the Food Safety Preventive Controls Alliance (FSPCA) is the “standardized curriculum” recognized by FDA.  Successfully completing this course is one way to meet this requirement.  Therefore, completing this course is not mandatory for regulatory compliance; however, it will help you understand what you need to do to comply.
  • This training is open to non-firm clients.

Click here to register for this training program. 

Increasing consumer interest in cannabis-derived ingredients has led to an explosion of the use of the non-intoxicating cannabinoid, cannabidiol (CBD) in a wide variety of products, including drugs, foods, dietary supplements, personal care products, and cosmetics for both human and animal use. While CBD-containing products continue to proliferate – online and in stores across the globe – regulators have struggled to keep pace with the marketplace, and are now starting to examine and exercise their enforcement authorities over CBD-containing products.

Confusing matters further, numerous media outlets have reported that CBD is now “legal.” In the U.S., the recent passage of the 2018 Farm Bill clarified that hemp, and hemp-derived ingredients including CBD, are not Schedule I substances under the Controlled Substances Act. While this change brought much-needed clarity to the legal distinction between Cannabis that is considered non-controlled hemp and Cannabis that is illegal marijuana, hemp-derived CBD remains subject to regulation by several regulatory agencies at both the federal and state level.

FDA has taken the view CBD cannot be marketed as an ingredient in foods or dietary supplements under the exclusionary clauses of the statute that prohibit a substance from marketing as a food or dietary supplement if it was first studied as an investigational new drug. States such as Maine recently started enforcing the FDA position by taking market action against CBD-containing food and dietary supplements.

The uncertainty and complexity around the use of CBD in foods, dietary supplements, and cosmetics is not unique to the U.S. In the U.K., where a booming marketplace for CBD-containing products has also emerged, the Food Standards Authority (FSA) recently determined that CBD is a novel food ingredient and is advocating for removal of CBD-containing foods from the marketplace until CBD is approved as a novel food.

The ever-changing landscape for CBD underscores the need for companies to closely monitor regulatory developments and conduct appropriate diligence before commercialization of a product in their market.


In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer electronics manufacturers, and other consumer companies throughout 2019.

Download Consumer Horizons 2019 by registering here.

The United States Food and Drug Administration (FDA) recently issued Draft Guidance for Industry entitled “Initiation of Voluntary Recalls Under 21 CFR Part 7, Subpart C” (the Draft Guidance). 1/ As FDA Associate Commissioner for Regulatory Affairs Melinda K. Plaisier explained, part of FDA’s work is “keenly focused on guiding companies on steps needed to ready their facilities and staff for possible recall situations.” The Draft Guidance is the latest step in the Agency’s efforts over the past 18 months to proactively and systematically update the FDA recall process.

Plaiser points to several examples of recalls that took place in the past 12 months that demonstrate that the improvements FDA and industry have implemented can result in more timely information being available to consumers. Plaisier also states that the agency’s work to improve recall timeliness will continue and that FDA encourages the use of new technologies that can identify and communicate recall events more quickly and efficiently.

The Draft Guidance has four sections: A) preparing to facilitate timely initiation of a voluntary recall, B) identifying and responding to potential problems with distributed product, C) initiating a voluntary recall, and D) FDA’s role in initiating a voluntary recall in a timely manner. In terms of significance, Plaisier highlights three key recommendations – training, record keeping, and procedures.

This post is a summary of the FDA draft guidance document. Click here to read more.