Preparing for Your First Remote Audit? Everything You Should Know

Preparing for Your First Remote Audit? Everything You Should Know

By Tiffany Donica

COVID-19 has disrupted different sectors, and the food and beverage industry hasn’t been spared either. Despite all the new regulations that businesses had to put in place amid the global pandemic, one thing remained clear: There was still a need for food safety certifications.

However, with travel restrictions in place and strict regulations to curb the virus’s spread, in-house audits have become a thing of the past. Therefore, food and beverage companies have had to turn to remote audits to ensure they can still undergo the rigorous certification process.

Remote audits are a new concept, and it’s only fair that you don’t know how to go about it. This guide will highlight all the essential details about remote audits, why they are necessary, and how you can prepare for your first one ever.

Understanding Remote Food Safety Auditing

As the coronavirus hit the world, GFSI started exploring the feasibility of remote and virtual certification audits. In June, GFSI announced that it would support the use of information and communications technologies (ICT) during audits. The organization also updated its benchmarking requirements so that Certification program Owners could develop their own remote auditing procedures.

GFSI had been thinking of incorporating ICT in the audit processes, and the emergence of COVID-19 only accelerated the decision. Instead of doing away with in-person audits because of the risk of spread, GFSI used this opportunity to adopt instead of compromising strict food safety standards.

Benefits of a Remote Audit

Generally, audits help food and beverage companies maintain their safety standards compliance and certifications. During these times, the need to uphold these standards is high, mostly because of the strain on the healthcare system.

In addition to upholding standards, remote audits present several benefits.

Cost Savings. Certifying bodies usually have to cater to travel expenses for the auditors. With remote auditing, auditors don’t need to travel, which helps them cut down their costs. Additionally, the process requires limited resources, easing the strain on the bodies and organization.
Long-term record. Remote auditing will require the use of videos. These videos can be kept for future use, and the companies can use them to track their progress over time.
Transparency. Usually, the food companies’ management and administration may not have access to the audit report. However, with remote auditing, the auditors give real-time insight, and the managers get authentic reports on their certification audits.
Secure storage. Remote audit reports will be stored on centralized clouds that are safe. Only the customer and the auditor have access to the audit reports, which ensures the reports’ security.

How to Run a Remote Audit

Remote audits are usually conducted partially through either a walk-through video or installed cameras.

Via a walk-through video. An organization may have one of its employees record the company’s operations as they walk through different departments. For this approach, they could either use glasses equipped with a camera, a helmet with a mounted camera, or a hand device.

Although this method is cost-effective, it may not be the best since the employee chooses what to show and could be biased.

Via installed cameras. This second method involves having cameras installed in different areas in the company. Recorded or live feeds from the camera are then chosen randomly and used during the audit. This method of remote auditing may not be too effective since employees may choose to remain compliant when they know the cameras are on.

Steps in a Remote Audit

The remote auditing process is quite similar to the in-house auditing process. However, companies must first assess themselves to ensure the remote process is successful. The following are the steps you need to follow when performing a remote audit.

1. Request the Remote Audit
You must first notify the certifying body that you need a remote audit. The certifying organization will then determine whether the audit is a viable option for your company. In some cases, remote audits may not be an option because of the COVID restrictions or other reasons.

2. Carry Out a Self-assessment
Once you have the go-ahead, the company needs to conduct a self-assessment. Here, you answer questions about the company’s programs, facilities or any changes to the operations process. You must also look at the previous audit report to determine the trend over the last year.

3. Technical Review
After submitting your self-assessment, the technical team will review your answers. They will then determine whether the company’s record-keeping, systems and procedures could be audited remotely. The team then decides whether they’ll conduct a remote audit or if the company should stick to onsite audits.

4. Have the Remote Audit
After the team approves your remote audit, you can start preparing for it. The team will recommend the best way to have the audit. After a successful audit, your company can receive certification. In a remote audit, the reports will be shared digitally over a private portal. The team will also give its recommendations over the portal. Also, your company may require an onsite audit at later time.

How to Prepare for a Remote Audit

Once the technical team gives you the go-ahead for a remote audit, you’ll need to start preparing for it. The following are five things you can do to ensure the process is smooth and successful.

1. Identify the Key Personnel in the Company
During an onsite audit, you should always have some of the company’s management around to ensure everything runs as intended. It would be best if you had these same people support your remote audit. Whether they are in the office or working remotely, these personnel should know they must be available. You could choose to use calls or video conferencing to ensure they’re involved in the entire process.

2. Identify the Needs with the Audit Team
You will have to find out from the audit team the requirements for the remote audit. The team will let you know the preferred method of conferencing and take you through the process. They will tell you everything you must do and sort out any issues before the actual audit date.

3. Digitize Your Documents
After finding out what you need, your next step should be to digitize any necessary documents. You will be sharing the documents over an online portal, and it is best to have everything ready before the audit day.

4. Gather Documentation From Auditors
Another requirement will be to send some documentation to your auditors. This documentation is the same required for onsite audits. Some of what to include is the visitor’s policy and any NDAs. You should gather all these documents early enough so that you have time to correct any issues that may arise.

5. Check the Internet Connection
Your remote audit will probably require some IT. Therefore, you should ensure your internet connection is reliable and that all the systems work as they should. Everyone involved in the audit process must ensure that their connection will remain reliable during the entire process.

Tips for Working with Remote Auditors

The entire concept of remote auditing may be new for all parties involved. Everyone has something to learn, but here are some of the things that food and beverage companies can do to make everything easier for all parties.

Ensure you have the right technology, including webcams.
Minimize the disruptions during the audit time by ensuring you’re in a quiet environment.
Do a test run to ensure all the systems are working.
Be calm during the entire audit process, including during the preparation period.

Although COVID-19 made it possible to transition to remote audits, there are high chances that GFSI and food and beverage companies will stick to them after the pandemic. They are convenient and present several benefits. Therefore, you just might need these actionable tips for more than only your first remote audit.

January 19, 2021

Four Decades Of Food Fraud

By Susanne Kuehne

Malaysian beach — Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne

For more than 40 years, a syndicate of bribed government and custom officials and slaughterhouses did lucrative business by smuggling fake halal meat into Malaysia. The meat originated in unapproved slaughterhouses in several countries that produced not halal-certified and low-grade meat from a variety of animals. This scandal was a setback on Malaysia’s goal to become one of the world’s main halal meat exporters, which is a multi-billion dollar business.

Resource

South China Morning Post. (December 30, 2020). “Malaysian cartel allegedly sold fake halal meat to Muslims for 40 years”.

January 15, 2021

Food Insecurity Vs. Food Waste: Producers and Manufacturers Can Affect the Balance

By Stephen Dombroski

1 Comment

As the population continues to grow and the effects of climate change, global warming, pollution and other factors impact humanity’s ability to grow and provide enough food for itself, the concern that the world could run out of food is increasing.. The COVID-19 pandemic has put more focus on how fragile the food supply chain is and how easy it is to disrupt the process of feeding the world. For years, it has been mostly a topic of discussion. But with so many disruptions, it is now an issue that needs to be acted on. Social groups, civic associations, government bodies and food manufacturers have taken notice of the problem and are attempting to get their hands around the issues. One of the key points in this discussion revolves around the amount of food and food sources that will be needed in the future. It always starts with the same question: “Will there be enough food?” Most people immediately say no. But is that 100% true? This is where the debate between food insecurity and food waste begins.

What is Food Insecurity?

According to the Office of Disease Prevention and Health Promotion, food insecurity is defined as “the disruption of food intake or eating patterns due to lack of money or other resources…Food insecurity does not necessarily cause hunger, but hunger is a possible outcome.” The debate about whether there is or isn’t enough food can get pretty contentious. There are many people in many countries that are “food insecure.” The problem in many cases, however, is due to affordability rather than availability. There are distinct issues and differences between availability and affordability. Go to any grocery store or purchasing venue in most developed countries and for the most part, the shelves are well stocked. The obvious conclusion is that there is enough food. However, can the entire population afford that food? Now, go to countries that are not as developed and you would be hard-pressed to find a grocery store that is as well stocked. Even if the population can afford to buy it, there simply is not enough food to buy. The difference between these two scenarios is where the debate begins. People talk about climate change making it challenging to produce enough food to meet the world’s needs, but store shelves in developed countries are full. All the while edible food is getting thrown away and destroyed in ridiculous amounts each day.

The world agrees that manufacturers, governments and consumers have a social responsibility to do their part to combat world hunger. Consumers are becoming more aware of food security and the threat that climate change poses. There are trends supporting sustainability in daily diets, with meals lower in environment impact and awareness of plate portions and food waste. Government agencies are working with manufacturers to resize portions and package sizes to align with scientific research on the necessary amount of food and nutrients needed in diets. Manufacturers and their customers (retail channels) are working more closely to create accurate and realistic “best by dates” to reduce the amount of food that is thrown out as “expired.”

World health organizations are increasing their focus as well. The U.N. World Food Program (WFP) is addressing hunger and emphasizing “food security.” WFP provides 15 billion meals to nearly 100 million people suffering from the effects of life-threatening hunger in over 80 countries. Manufacturers are expanding their participation in this area by increasing and improving donation programs, developing nutritional foods from new sources and incorporating limited perishability to make foods last longer and minimize food waste.

Wasted Food: An Understated and Complex Problem

If you think about it, the two largest consumers of food are garbage disposals and landfills. Both are well fed. Landfills receive both expired food that is not used and consumer food waste. Obviously, garbage disposals are used by consumers for cooked food that is not eaten or saved. I bring this up because it sparks the discussion of defining food waste. People use this term often and many times it is about food that consumers discard. But food waste has multiple categories and mirrors the supply chain. Food waste occurs at the following levels:

Growers/agricultural
Supplier
Primary producer/manufacturer
Distribution/transportation
Retail
Foodservice providers
The consumer

Approximately one-third of the total food produced globally—about 1.4 billion tons—is wasted. In addition to the loss of a great deal of edible food, there are other consequences to this waste. Food waste and food loss impact climate change, accounting for roughly 10% of the world’s greenhouse gas emissions. Human behavior is a significant contributor to climate change. Luckily, habits can be changed through education, like encouraging composting or recycling. Portion control at restaurants and in the home can make us healthier and also help to reduce food waste. Another trend in recent years is the migration for many consumers to healthier eating. This typically consists of using and consuming fresh ingredients with less processing and chemical additives. These ingredients, however, typically have shorter shelf lives and end up contributing to the growing amount of food waste. Over the last 10 years, food manufacturers, suppliers and the greater agricultural community have focused on efforts to reduce food and other wastes that fall into the sustainability category such as energy, water, materials used in packaging, etc. Food producers have figured out ways to repurpose unused ingredients, by-products and waste. Many sell to farms to be converted to feed and fertilizer. Some is sold to pet and animal feed producers to convert into sellable products. It is actually quite a profitable business for many manufacturers.

Balancing Between Food Insecurity and Food Waste

Analyzing both concepts requires a balancing act. On one hand, you can argue that if you recoup 1.4 billion tons of wasted food, or let’s say, even half of it, we might eliminate the hunger problem. But then consider the issue of food costs. When people go shopping for food, an often-heard comment is, “I can’t believe how much this food costs.” You have said it, and I have too. However, I have spent a significant amount of time in food manufacturing facilities of almost every vertical segment and I have a hard time not saying, “I can’t believe this only costs this much.” The entire process from field to fork for most food items is extraordinarily complex and comes with a wide array of costs. Most food manufacturing businesses are meager margin. They turn a profit but most feel the social responsibility to provide quality food at reasonable prices.

The industry is making significant progress, however, and more can be done. With new technology including IoT, Industry 4.0 and Smart Agriculture, resources such as land, water and space are being utilized much more efficiently to increase supply. This reduces costs. Through the use of technology, farmers are growing healthier more sustainable crops that minimize waste. Food and beverage manufacturers are now using business systems and processes to better communicate with suppliers. Adaptive ERP and integrated business planning are simplifying the supply chain, helping to maximize shelf lives and minimize food waste. As we move into 2021 and beyond, technology and integrated business systems and processes throughout the entire food supply and value chain will help minimize food waste and hopefully reduce costs. This should bridge the gap between food insecurity and food waste.

January 14, 2021

The Golden Goose, A Timeless Moneymaker

By Susanne Kuehne

Donkey, Decernis — Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne

Grimm’s Fairy Tale got it right after all: The “Golden Donkey” (German expression for “Golden Goose”) does indeed exist. In India, officials shut down a factory producing fake turmeric, chili powder and other spices and condiments. Authorities confiscated mostly inedible and hazardous ingredients, which included man-made pigments and colorants, acids, hay and last but not least, donkey dung. The health impact and where the “spices” were sold in retail are under investigation.

Resource

Mishra, S. (December 16, 2020). “Police raid factory making counterfeit spices ‘out of donkey dung and acid’”. Independent.

January 12, 2021

HACCP is the Past, Present and a Building Block for the Future

By Earl Arnold

“Food safety plan” is a term often used in the food industry to define an operation’s plan to prevent or reduce potential food safety issues that can lead to a serious adverse health consequence or death to humans and animals to an acceptable level. However, depending on the facility, their customers, and or regulatory requirements, the definition and specific requirements for food safety plans can be very different. To ensure food safety, it’s important that the industry finds consensus in a plan that is vetted and has worked for decades.

One of the first true food safety plans was HACCP. Developed in 1959 for NASA with the assistance of the food industry, its goal was to ensure food produced for astronauts was safe and would not create illness or injury while they were in space. This type of food safety plan requires twelve steps, the first five of which are considered the preliminary tasks.

Assemble a HACCP team
Describe the finished product
Define intended use and consumer
Create process and flow diagram
Verify process and flow diagrams

This is followed by the seven principles of HACCP.

Conduct the hazard analysis
Identify critical control points
Establish critical limits
Establish monitoring requirements
Establish corrective actions for deviations
Procedures for verification of the HACCP plan
Record keeping documenting the HACCP system

HACCP is accompanied by several prerequisites that support the food safety plan, which can include a chemical control program, glass and brittle plastics program, Good Manufacturing Practices (GMPs), allergen control program, and many others. With these requirements and support, HACCP is the most utilized form of a food safety plan in the world.

When conducting the hazard analysis (the first principle of HACCP), facilities are required to assess all products and processing steps to identify known or potential biological, chemical and physical hazards. Once identified, if it is determined that the hazard has a likelihood of occurring and the severity of the hazard would be great, then facilities are required to implement Critical Control Points (CCP) to eliminate or significantly reduce that identified hazard. Once a CCP is implemented, it must be monitored, corrective actions developed if a deviation in the CCP is identified and each of these are required to be verified. Records then also need to be maintained to demonstrate the plan is being followed and that food safety issues are minimized and controlled.

HACCP is, for the most part, the standard food safety plan used to meet the Global Food Safety Initiative (GFSI) standards. This is utilized in various third-party audit and customer requirements such as FSSC 22000, SQF, BRC, IFS and others. These audit standards that many facilities use and comply with also require the development of a food safety management system, which includes a food safety plan.

Further, HACCP is often used to demonstrate that potential food safety issues are identified and addressed. FDA has adopted and requires a regulated HACCP plan for both 100% juice and seafood processing facilities. USDA also requires the regulated development of HACCP for meat processing and other types of facilities to minimize potential food safety issues.

For facilities required to register with the FDA—unless that facility is exempt or required to comply with regulated HACCP—there is a new type of food safety plan that is required. This type of plan builds upon HACCP principles and its steps but goes beyond what HACCP requires. Under 21 CFR 117, specific additions assist in identifying and controlling additional food safety hazards that are on the rise. This includes undeclared allergen recalls, which constituted 47% of recalls in the last reportable food registry report published by FDA.

Prior to developing this plan, FDA provided recommendations for preliminary steps that can be completed and are essential in development of a robust food safety plan but are not a regulatory requirement. The steps are very similar to the preliminary tasks required by HACCP, including the following:

Assemble a food safety team
Describe the product and its distribution
Describe the intended use and consumers of the food
Develop a flow diagram and describe the process
Verify the flow diagram on-site

Their recommended plan also requires a number of additional steps, including:

A written hazard analysis. Conducted by or overseen by a Preventive Controls Qualified Individual (PCQI). However, this hazard analysis requires assessing for any known or reasonably foreseeable biological, chemical, physical, radiological, or economically motivated adulteration (food fraud that historically leads to a food safety issue only). You may note that two additional hazards—radiological and EMA—have been added to what HACCP calls for in the assessment.
Written preventive controls if significant hazards are identified. However, similar preventive controls are different than a CCP. There are potentially four types of preventive controls that may be utilized for potential hazards, including Process Preventive Controls (the same as CCP), Allergen Preventive Controls, Sanitation Preventive Controls, Supply Chain Preventive Controls and Others if identified.
A written supply chain program if a Supply Chain Preventive Control is identified. This includes having an approved supplier program and verification process for that program.
A written recall plan if a facility identified a Preventive Control.
Written monitoring procedures for any identified Preventive Control that includes the frequency of the monitoring what is required to do and documenting that monitoring event.
Written corrective actions for identified Preventive Controls in case of deviations during monitoring. Corrective actions must be documented if they occur.
Written verification procedures as required. This could include how monitoring and corrective actions are verified, procedures themselves are verified, and calibration of equipment as required. Also required is training, including a Preventive Control Qualified Individual. Additional training is required for those individuals responsible for performing monitoring, implementing corrective actions, and verification of Preventive Controls. Further, all personnel need to have basic food safety training and all training needs to be documented.

While the term “food safety plan” is used widely, it’s important that operations don’t just use the term, but enact a plan that is vetted, proven to work, and encompasses the principles of HACCP. Doing so will help ensure that their facility is producing foods that customers and consumers will know is safe.

January 8, 2021

Food Authenticity: 2020 in Review

By Karen Everstine, Ph.D.

It is fair to say that 2020 was a challenging year with wide-ranging effects, including significant effects on our ongoing efforts to ensure food integrity and prevent fraud in the food system. COVID-19 caused major supply chain disruptions for foods and many other consumer products. It also highlighted challenges in effective tracking and standardization of food fraud-related data.

Let’s take a look at some of the notable food fraud occurrences in 2020:

Organic Products. The Spanish Guardia Civil investigated an organized crime group that sold pistachios with pesticide residues that were fraudulently labeled as organic, reportedly yielding €6 million in profit. USDA reported fraudulent organic certificates for products including winter squash, leafy greens, collagen peptides powder, blackberries, and avocados. Counterfeit wines with fraudulent DOG, PGI, and organic labels were discovered in Italy.
Herbs and Spices. Quite a few reports came out of India and Pakistan about adulteration and fraud in the local spice market. One of the most egregious involved the use of animal dung along with various other substances in the production of fraudulent chili powder, coriander powder, turmeric powder, and garam masala spice mix. Greece issued a notification for a turmeric recall following the detection of lead, chromium, and mercury in a sample of the product. Belgium recalled chili pepper for containing an “unauthorized coloring agent.” Reports of research conducted at Queen’s University Belfast also indicated that 25% of sage samples purchased from e-commerce or independent channels in the U.K. were adulterated with other leafy material.
Dairy Products. India and Pakistan have also reported quite a few incidents of fraud in local markets involving dairy products. These have included reports of counterfeit ghee and fraudulent ghee manufactured with animal fats as well as milk adulterated with a variety of fraudulent substances. The Czech Republic issued a report about Edam cheese that contained vegetable fat instead of milk fat.
Honey. Greece issued multiple alerts for honey containing sugar syrups and, in one case, caramel colors. Turkey reported a surveillance test that identified foreign sugars in honeycomb.
Meat and Fish. This European report concluded that the vulnerability to fraud in animal production networks was particularly high during to the COVID-19 pandemic due to the “most widely spread effects in terms of production, logistics, and demand.” Thousands of pounds of seafood were destroyed in Cambodia because they contained a gelatin-like substance. Fraudulent USDA marks of inspection were discovered on chicken imported to the United States from China. Soy protein far exceeding levels that could be expected from cross contamination were identified in sausage in the Czech Republic. In Colombia, a supplier of food for school children was accused of selling donkey and horse meat as beef. Decades of fraud involving halal beef was recently reported in in Malaysia.
Alcoholic Beverages. To date, our system has captured more than 30 separate incidents of fraud involving wine or other alcoholic beverages in 2020. Many of these involved illegally produced products, some of which contained toxic substances such as methanol. There were also multiple reports of counterfeit wines and whisky. Wines were also adulterated with sugar, flavors, colors and water.

We have currently captured about 70% of the number of incidents for 2020 as compared to 2019, although there are always lags in reporting and data capture, so we expect that number to rise over the coming weeks. These numbers do not appear to bear out predictions about the higher risk of food fraud cited by many groups resulting from the effects of COVID-19. This is likely due in part to reduced surveillance and reporting due to the effects of COVID lockdowns on regulatory and auditing programs. However, as noted in a recent article, we should take seriously food fraud reports that occur against this “backdrop of reduced regulatory oversight during the COVID-19 pandemic.” If public reports are just the tip of the iceburg, 2020 numbers that are close to those reported in 2019 may indeed indicate that the iceburg is actually larger.

Unfortunately, tracking food fraud reports and inferring trends is a difficult task. There is currently no globally standardized system for collection and reporting information on food fraud occurrences, or even standardized definitions for food fraud and the ways in which it happens. Media reports of fraud are challenging to verify and there can be many media reports related to one individual incident, which complicates tracking (especially by automated systems). Reports from official sources are not without their own challenges. Government agencies have varying priorities for their surveillance and testing programs, and these priorities have a direct effect on the data that is reported. Therefore, increases in reports for a particular commodity do not necessarily indicate a trend, they may just reflect an ongoing regulatory priority a particular country. Official sources are also not standardized with respect to how they report food safety or fraud incidents. Two RASFF notifications in 2008 following the discovery of melamine adulteration in milk illustrate this point (see Figure 1). In the first notification for a “milk drink” product, the hazard category was listed as “adulteration/fraud.” However, in the second notification for “chocolate and strawberry flavor body pen sets,” the hazard category was listed as “industrial contaminants,” even though the analytical result was higher.¹

RASFF, melamine detection — Figure 1. RASFF notifications for the detection of melamine in two products.¹

What does all of this mean for ensuring food authenticity into 2021? We need to continue efforts to align terminology, track food fraud risk data, and ensure transparency and evaluation of the data that is reported. Alignment and standardization of food fraud reporting would go a long way to improving our understanding of how much food fraud occurs and where. Renewed efforts by global authorities to strengthen food authenticity protections are important. Finally, consumers and industry must continue to demand and ensure authenticity in our food supply. While most food fraud may not have immediate health consequences for consumers, reduced controls can lead to systemic problems and have devastating effects.

Reference

Everstine, K., Popping, B., and Gendel, S.M. (2021). Food fraud mitigation: strategic approaches and tools. In R.S. Hellberg, K. Everstine, & S. Sklare (Eds.) Food Fraud – A Global Threat With Public Health and Economic Consequences (pp. 23-44). Elsevier. doi: 10.1016/B978-0-12-817242-1.00015-4

January 5, 2021

Honey Detectives In Action

By Susanne Kuehne

Honey fraud — Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne

Honey is still on the list of the most adulterated foods. Adulteration can be done by mislabeling the geographical origin, by direct addition of sugars to honey, and feeding bees sugar syrup. Fortunately, a number of methods to detect fraudulent honey is available on the market. A method based on EIM-IRMS Ethanol Isotope Measurement showed to be an efficient way to detect added C3 and C4 sugars, for example from sugar beet. The research and analysis involved a number of companies and institutions (see Resources).

Resources

Smajlovic, I., et. al. (2020). “Honey and diverse sugar syrups differentiation by EIM-IRMS Method”
Imprint Analytics. Honey.
C.N.R.I.F.F.I. China National Institute of Food and Fermentation Industries Limited
Isotoptech. Honey adulteration analysis.
RUDN University.

January 4, 2021

Food Litigation Trends Lay the Foundation for an Industry-Defining 2021

By Steven Blonder

1 Comment

The year 2020 brought with it continued court filings within the food safety litigation space, and it should come as no surprise the pandemic presented its own set of unique challenges. We’ve seen disruptions to the food and beverage supply chain, noteworthy changes with recalls, and continued developments in litigation specific to product labeling. These challenges have impacted everyone involved in the industry and laid the groundwork for what’s to come in 2021.

The most notable impact the food industry has faced as a result of the pandemic has been the massive disruption of the food supply chain. Grocers and other retail food providers have seen an immense spike in demand, whereas foodservice locations, such as restaurants, universities, and hotels, have seen the exact opposite. This disruption to the supply chain has required regulatory agencies to take notice and implement temporary policies to support these businesses and consumers alike. Employees across the food industry supply chain, including agriculture and food processing, have further been classified as essential, leading federal agencies to issue guidance to these employers to help them assess COVID-19 control plans and protect their employee’s health. Further, safety concerns and bumps in unemployment compensation have imposed additional strains on worker retention and attendance.

Another interesting facet of the pandemic’s impact on the industry has been its influence in the product recall space. Believe it or not, companies have strayed from pulling their products off the shelf even if it subjects them to potential liability. Why is this? Because as mentioned earlier, the demand for food in the retail space has increased so much, it has become a necessary choice to avoid food shortages across the United States. Don’t worry, if a product possesses a health or safety threat, companies are still recalling those to protect consumers and address safety concerns, but voluntary non-health or safety related recalls may have become a thing of the past. For example, rather than recall a box of cereal or other dry good for not meeting a fill-line requirement, providers may elect to risk a false-advertising lawsuit to meet the recent shift in retail food demand.

Since 2012, there have been more than 200 class action lawsuits filed related to the labeling on food products. This past year, we observed a continuation of this trend. Class action lawsuits were filed addressing the authenticity of “all-natural” products or claims based on the “origin” of a product, while we witnessed a sharp decline in slack-fill lawsuits. Consumers are becoming increasingly aware of the ingredients in food products and are continuing to demand transparency from companies to disclose how their products are made. There has been a particular increase in claims related to the definition of vanilla—is it pure? Is it natural? The same goes for citric acid, a product that can be made naturally or synthetically. There has been continued debate within the industry about citric acid in its use within other products where some citric acid is naturally occurring either from citrus fruit, tomatoes or other fruits with citric acid. If all-natural citric acid is added into tomato paste to help with the taste, can the tomato paste still be classified as being all-natural, even if the use of citric acid is displayed on the label?

To help combat the discrepancies around all-natural products, the USDA is currently working on developing an official definition of “all-natural,” which upon its completion is anticipated to have a major impact on the labeling industry and the number of false-advertising class actions. This definitional development comes at a crucial time especially as plant-based protein continues to rise in popularity.

The next wave of claims are being filed related to plant-based protein products. These claims include trademark and First Amendment issues. For example, when is a burger, a burger? Everyone assumes a burger means a hamburger, traditionally deriving from beef, and there has been an increase in debate around when the sale of plant-based products infringe on the rights of ranchers selling traditional beef products. Can food created in a petri-dish claim the same title as products created through traditional harvesting methods? What about other genetically modified products? These issues will likely spawn additional litigation in the coming year.

Looking ahead towards 2021, we can fully anticipate cases addressing food labeling issues to continue. Historically many of these claims were filed in Northern California with one federal court there earning the moniker of the “Food Court”. Recent years have seen increased filings in New York and Illinois, but the coming year may see a decrease in cases filed in New York as a result of recent court decisions relating to pre-emption and a recent opinion of a federal appellate court disallowing the settlement of class claims on an injunction-only basis. California may also see changes in their total cases as food producers curtail product sales in California to avoid the ambit of Prop 65.¹

2021 will continue to bear witness to the effects of the COVID-19 pandemic. The supply chain will continue to adjust to the varying demands of the public as they navigate safety regulations, and companies will maintain an “only-recall-if-absolutely-necessary” mindset. Many of the adjustments that businesses, consumers and regulators have had to make in light of the pandemic may also lead to long-term or permanent shifts. In fact, the Consumer Brands Association has identified a few select areas ready for change, such as the maintenance of flexibility in food labeling to ease the transfer process of products between foodservice and food retail providers. We just might find 2021 to be one of the most industry-defining years in the food safety litigation space.

Reference

California Office of Environmental Health Hazard Assessment. (n.d.). Proposition 65. Accessed December 17, 2020. Retrieved from https://oehha.ca.gov/proposition-65

December 31, 2020

How Can Preventive Maintenance Save Food Processors Money?

By Emily Newton