This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal, and regulatory landscape. 

FDA begins to rehire some employees, including some in the foods program. On February 22, the FDA began a process of reversing some of the mass termination notices that had been given to FDA staff members, telling them to return to work. These employees, many of whom had been classified as probationary employees, received calls from the FDA’s human resources department advising that they would be back on the agency’s computer system by February 25. Starting in late January, thousands of federal employees were terminated from their jobs in response to President Donald Trump’s executive order seeking to shrink the federal workforce. More than 1,000 people were terminated from the FDA; the agency is seeking to rehire approximately 300 who were responsible for reviewing food safety, drugs, medical devices, and tobacco.

FDA postpones effective date of “healthy” definition. On February 24, the FDA announced it is postponing the effective date for its final rule defining the meaning of the term “healthy” until April 28, 2025. The final rule had been published with an effective date of February 25, 2025. The agency, however, decided to postpone the effective date of the rule in accordance with a January 20, 2025, memorandum from President Trump, entitled “Regulatory Freeze Pending Review.” The memorandum discusses possible review of any questions of fact, law, and policy applicable to rules that have been published in the Federal Register but have not yet taken effect. The FDA’s rule is intended to update the agency’s “healthy” nutrient content claim to help consumers identify foods that are particularly useful as the foundation of a diet that is consistent with dietary recommendations. Manufacturers would be able to voluntarily use the claim on a food package if the product meets the updated criteria.

Kennedy hails company’s decision to cook its fries in beef fat. In a February 27 posting on X, Health and Human Services Secretary Robert F. Kennedy Jr. praised a fast-food chain for changing the cooking fat for its french fries to 100-percent beef tallow. Kennedy congratulated the company for “being the first national fast-food chain to begin the transition away from seed oils.” He praised the company for its “leadership in the crusade to Make America Healthy Again.” Kennedy has often contended that consumption of seed oils contributes to rising obesity rates.

Arkansas will ask USDA to let it restrict SNAP purchases of soda. On February 28, Governor Sarah Huckabee Sanders said Arkansas will ask the USDA if it can restrict some less-healthy items, such as candy, sodas, and desserts, from SNAP benefits. Sanders said, “Nobody is anti-soft drink. I like a soft drink, too. It’s whether or not the government should be paying for it.” In another signal that the new Administration could decide to let states remove sodas from food aid programs, Agriculture Secretary Brooke Rollins, on her first day in office, told US governors that she would “support state innovation through approvals of waivers and pilot projects” that would test changes to food aid. A number of US states have repeatedly asked the USDA to be allowed to remove sugary drinks and various snack items from their Supplemental Nutrition Assistance Program (SNAP) state food-aid programs, but the USDA has rejected these attempts for more than 20 years. A poll conducted this year by the American Beverage Association found that nearly 60 percent of those who voted for Trump in 2024 support allowing soda purchases with food aid. SNAP benefits feed more than 42 million Americans.

Supplemental shakes are recalled after deaths from Listeria are noted. On February 23, the FDA and Lyons Magnus LLC announced that in response to 38 illnesses and 11 deaths in hospitals and long-term care facilities, the company is voluntarily recalling its 4-ounce Lyons ReadyCare and Sysco Imperial Frozen Supplemental Shakes. The illnesses and deaths were traced to a strain of Listeria. Lyons Magnus took the action in response to a recall of the products that were distributed to facilities like hospitals and long-term care facilities by their manufacturer, Prairie Farms Dairy, Inc. After the recall, a twelfth death was noted. The FDA is continuing to investigate the outbreak.

USDA is sued by nonprofit for approving poultry product with allegedly misleading labels. On February 18, the nonprofit Animal Legal Defense Fund filed a lawsuit against the USDA’s Food Safety and Inspection Service, challenging the practice of approving chicken and turkey products for sale without reviewing the imagery on the label to ensure that it is not misleading to consumers. According to the lawsuit, the USDA approved Perdue Farms’ Fresh Line labels, among others, which portray chickens and turkeys grazing outdoors under a bright sun. In reality, according to the lawsuit, the birds spend their entire lives confined indoors. The lawsuit was filed in the US District Court for the District of Columbia.

Blaming “ultra-processed” food. US legislatures, governors, government agencies, and plaintiff attorneys are taking action against ultra-processed foods, but there is no clear definition of such foods and little discussion of their benefits. Our attorneys Chris Gismondi and Megan Kinney look at this emerging topic in this article in StatNews.

Avian flu update.

• On February 26, USDA Secretary Brooke Rollins announced a new 5-step plan to battle avian flu in poultry and stabilize the egg supply. The plan includes $500 million in biosecurity support for poultry and egg producers; $400 million in financial relief for affected farms; up to $100 million in funding for vaccine research and development – including a major policy shift away from depopulation; removing certain “regulatory burdens,” when possible; and considering importation of eggs as a temporary stopgap.

• Also on February 26, a group of 84 federal legislators wrote to President Donald Trump asking him to restore interagency communications between the USDA and CDC. “Failure to restore full interagency information sharing and public health communications continues to harm the U.S. Response to H5N1,” their letter states, adding, “We know you would not like to see another deadly pandemic unfold under your watch.” In recent days, a number of politicians and scientists have decried the mass layoffs at federal health agencies for their harmful effect on avian flu research. Among them was Senator Amy Klobuchar (D-MN), who stated that the mass layoffs add “chaos” into an already precarious situation that requires “a clear path forward.”

• The Department of Health and Human Services (HHS) states that it is reevaluating a contract issued by the Biomedical Advanced Research and Development Authority on January 21 to Moderna to accelerate development of an H5N1 mRNA influenza vaccine for humans that is “well matched to strains currently circulating in cows and birds.” Reportedly, the reevaluation is part of a larger review of government spending on mRNA-based vaccines, the technology that is the foundation of the leading COVID shots. Robert F. Kennedy, Jr., in 2021 called COVID shots “the deadliest vaccine ever made.” In January, Moderna said it is preparing to advance its H5N1 vaccine, mRNA-1018, to late-stage trials, but those trials may not take place if the federal contract is cancelled.

• CFIA researchers report discovery of the H5N1 mutant D1.1. In a new study published in Emerging Microbes & Infections, Canada Food Inspection Agency (CFIA) researchers report their discovery on eight chicken farms in British Columbia of a mutated H5N1 strain that is resistant to the antiviral drug oseltamivir (Tamiflu). They made their discovery in October 2024. The USDA would later update its North American A(H5N1) genotyping tool GenoFlu to designate the variant as genotype D1.1. This is the genotype that infected the British Columbia teenager who was hospitalized for months, as well as the Louisiana patient who died in January and the currently hospitalized Nevada patient.

• On February 28, Wild Coast LLC, which operates as Wild Coast Raw, voluntarily issued a recall for certain lots of its frozen Boneless Free Range Chicken Formula, a raw food sold at retail outlets in Oregon and Washington State, which could be contaminated with H5N1. The USDA’s Animal and Plant Health Inspection Service has confirmed 12 more cases of H5N1 in cats, in California, Colorado, Oregon, Kansas, New Jersey, New Mexico, and Colorado. Most of the cats were pets; the New Jersey cats were part of a feral colony.

• Among the H5N1 biosecurity measure instituted by many US dairy and poultry operations are measures to repel wild birds, such as bright lights, lasers, and sound effects. The Nevada Department of Agriculture (NDA) said it is working with the USDA to cull populations of European starlings in Churchill, Pershing, and Lyon counties, where the birds are a large “nuisance population” that spreads disease and contaminates food and water. A non-native species, European starlings are not protected by the Migratory Bird Act.

• The nonprofit advocacy organization Farm Action has written to the Department of Justice and Federal Trade Commission calling for an investigation into possible monopolistic behavior by major egg producers regarding the rising price and scarcity of eggs in the US. “While avian flu has been cited as the primary driver of skyrocketing egg prices, its actual impact on production has been minimal,” the letter states, and it urges DOJ and FTC “to take action to restore competition and lower egg prices.” Farm Action has also launched a citizen petition, “Tell the FTC: Investigate and Prosecute Egg Industry Price Fixing.”

• Across the country, many county and state fair administrators are contemplating cancelling poultry and dairy shows for 2025, and some have already made that decision.

• In the 30 days leading up to March 3, H5N1 has infected 107 US flocks, leading to the culling of 12.7 million birds.