Proposed FDA Rule Changes Leading Food Companies to Take Proactive Measures

In December 2013, the FDA proposed comprehensive changes to the Food Safety and Modernization Act of 2008, with the intention of standardizing the processes for growing, harvesting, packing, and holding foods for human consumption. A summary of the proposals can be found on the FDA’s website.

Food companies may have significant internal changes ahead in order to achieve compliance, should the proposed rules be adopted. In anticipation of that, some companies are already taking action – and it may prove to be a wise legal strategy.

Plaintiffs’ attorneys are consistently attempting to pierce through the various rules and regulations that apply to food labeling and processing. Not many legal actions have been successful in the courts, but the damage to companies’ reputations has nonetheless been impactful. In addition to what is now the familiar turf of all-natural food labeling actions – organic and genetically modified organism lawsuits – plaintiffs are also targeting processing techniques such as heat-free pressurization technologies as being both deceptive and unnatural. Although the apparent big-picture goal is to alter the legislative landscape to ensure that American consumers are afforded safe products and informed personal choice, the more immediate targets are the companies who, though compliant with all laws, are forced into defending these lawsuits.

With litigation against food companies only growing, perhaps the better strategy may be to proactively make changes that appeal to both consumers and regulators. Recently, for example, Purdue Farms, Inc. released a statement that explains a plan to restrict any human antibiotic use in their chickens, in response to the concern that exposure to human antibiotics ingested through food products is causing antibacterial resistance in human medicine. The statement goes on to say that only ill animals will be treated with medicine, as determined by a veterinarian, and that those animals will never be marketed as no-antibiotics-ever or organic chickens. Although presented as a “responsible use approach,” this may pan out to be a good defensive strategy to potential litigation, since it may deflect plaintiffs’ attorneys looking for more targets, and similar actions may be worth considering on an product-specific basis.

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