Snackable: Food & Beverage Review

• Published date: 07 June 2022
• Subject Matter: Corporate/Commercial Law, Food, Drugs, Healthcare, Life Sciences, M&A/Private Equity, Corporate and Company Law, Food and Drugs Law
• Law Firm: Foley & Lardner
• Author: Mr Nathan Beaver, Bryan S. Schultz, Nicholas R. Johnson, Lisa M. Noller, Donna J. Pugh, John F. Zabriskie and Jared Rifis

We invite you to enjoy a review of the food and beverage industry with bite size articles ranging from regulatory and real estate trends to litigation and M&A happenings.

The past two years have seen significant changes in almost all industries and the food and beverage industry has unquestionably been impacted by the pandemic as well. However, as we transition into whatever "new normal" awaits us in 2022 and beyond, we already are seeing regulatory and legal changes that reflect this transition into the next phase. Entities such as Congress, the Department of Justice, and others are looking both backwards (as stewards of money already spent) and as well as looking forward to plan for dealing with COVID over the long term. We also see that some things, like food litigation and M&A activity, have leveled and show that even as some things change, others remain constant.

The bottom line is that keeping your finger on the pulse of what is around the corner remains as important as ever.

FDA Resumes Routine Surveillance Inspections

Companies should be aware that FDA has resumed routine surveillance inspections of registered food facilities on February 7, after temporarily putting them on pause in late December 2021 due to the spread of the omicron variant of COVID-19. The FD&C Act requires FDA to inspect domestic food facilities either once every three years or every five years (depending on whether a facility is "high-risk" or not), but FDA's inspection activities over the past two years have been severely hampered by the ongoing COVID-19 pandemic. In March 2020, at the onset of the pandemic, FDA limited its inspections to "mission-critical" issues - for example, those related to foodborne illness outbreaks - which generally did not include routine surveillance visits. Throughout 2021, FDA completed only a fraction of the human and animal food domestic surveillance inspections it had planned. With FDA's February 2022 announcement, food facilities should anticipate a visit from the agency in 2022 - especially if it has been several years since the last visit, or if a facility's last FDA inspection identified critical items for resolution or follow-up.

FDA releases updated list of forthcoming documents

In June 2021, the FDA's Center for Food Safety and Applied Nutrition (CFSAN) and Office of Food Policy and Response (OFPR) released a priority list of draft and final guidance topics that the FDA Foods Program intends to complete by June 2022. In January 2022, the FDA released an updated list, which is available here. Stakeholders may submit comments on the guidance topics via www.regulations.gov at Docket FDA-2021-N-0553. Forthcoming guidance documents of note include:

• Premarket Consultation on Cultured Animal Cell Foods: Draft Guidance for Industry
• Foods Derived from Plants Produced Using Genome Editing: Draft Guidance for Industry
• Labeling of Plant-Based Milk Alternatives: Draft Guidance for Industry
• Labeling of Plant-Based Alternatives to Animal-Derived Foods Draft Guidance for Industry
• Action Levels for Lead in Food Intended for Babies and Young Children: Draft Guidance for Industry
• In April, FDA published a new draft guidance on allergens entitled "Evaluating the Public Health Importance of Food Allergens Other Than the Major Food Allergens Listed in the Federal Food, Drug, and Cosmetic Act," available here.

FDA releases action plan for reducing toxic metals exposure in baby food

In October 2021, the FDA released its Closer to Zero action plan, which...