NPA Annual Meeting Public Policy in the Land of Oz Hogan Lovells 2 Unprecedented Political Environment Legislative Stalemate Focus on Deregulation But Some Must Pass Legislation Some Regulations Mandated by Law ID: 781511
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Naples, Florida
March 19, 2018
NPA Annual Meeting
Public Policy in the Land of Oz
Slide2Hogan Lovells
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Unprecedented Political EnvironmentLegislative Stalemate
Focus on Deregulation
But Some Must Pass Legislation
Some Regulations Mandated by Law
Stalemate and Lack of Consensus Won’t Stop Regulators from Regulating
Introduction
O
Otto von Bismark
“No Man Should Know How Laws or Sausages Are Made.”
Slide3| 3
Hogan Lovells
White House, Senate, House Controlled by Republicans
But Majority Very Slim
And Divisions within Parties
Complicated by Procedural Rules
Filibuster in Senate
Hastert “Rule” in HousePresidential Veto
Political Environment
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Hogan Lovells
White House, Senate, House Controlled by Republicans
But Majority Very Slim
And Divisions within Parties
Complicated by Procedural Rules
Filibuster in Senate
Hastert “Rule” in HousePresidential Veto
Political Environment
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Hogan Lovells
Senate100 Senators
(Vice President votes in case of a tie)
47 Democrats
51 Republicans
2 Independents
House
435 Members238 Republicans193 Democrats0 Independents4 Vacancies
Congressional Make-up
Slide6Hogan Lovells
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Among the 33
Senate
seats up for regular election in 2018 are 23 currently held by Democrats, two by independents who
caucus with the Senate Democrats
, and eight by Republicans.
One Senate
seat in Minnesota held by a Democratic interim appointee is also up for election.Senate
Midterm Elections
Slide7Hogan Lovells
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As
of February 2018, the Republican Party is in the majority, holding 238 seats to Democrats' 193 seats, with four seats being vacant. The Democratic Party is well-positioned to gain seats in the chamber in 2018; since 1934, the party of a newly elected president has suffered an average loss of 23 seats in the House in the following midterm
.
House
Midterm Elections
Slide8Hogan Lovells
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Continued Debate but Uncertain ActionImmigration ReformTax Bill “Fixes” (Coops)
Must Pass [Even if as Continuing Resolution or Extension]
2018 Appropriations
2019 Appropriations
Farm Bill
Likely Legislative Activity
Slide9Hogan Lovells
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Deregulation Executive OrderTwo rescinded for each new regulation
Equal economic impact
Food Safety Modernization Act Implementation
State Initiatives
Some preempted by Federal Law (e.g., Vermont GMO)
Others continuing implementation (e.g., California Proposition 65)
Regulatory Activity
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FDA has issued 7 final rules:
Preventive Controls for Human FoodPreventive Controls for Animal Food
Foreign
Supplier Verification
Program (FSVP)
Food Defense/Intentional Adulteration
Sanitary Transportation of Food
Produce SafetyAccreditation of Third-Party Auditors
Status of FSMA Implementation
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Creates new regulations requiring facilities to develop and implement food safety plans (based on HACCP principles)
Hazard analysisPreventive controlsManagement components
Monitoring
Verification (including validation and testing)
Corrective
actions
ReanalysisSupplier verification
Preventive Controls Qualified Individual Modernized current Good Manufacturing Practices (cGMPs)All required documents (under Food Safety Plan) accessible for FDA review during inspections
Preventive Controls for Human Food
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Human food by-products diverted to animal foodFollow human food requirements up to diversion
Follow certain holding and distribution GMPs for diverted by-products that focus on holding the food under conditions to protect against contaminationThe full animal food
GMPs
and Preventive Controls would apply to any by-products subject to further processing by the food manufacturer (heat, drying, pelleting)
Manufacturers
of animal food need
to:Follow new GMPs for animal food
Implement food safety plans, just like preventive controls for human foodPreventive Controls for Animal Food
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Applies to “importers” of food to the U.S.
“Importer” = the person in the U.S. who owns, has purchased, or has agreed to purchase the food at the time of entryImporter must scrutinize the food safety programs of their foreign supplier to confirm that the food they are importing is safe
Requires “verification activities” to be conducted by the importer or a third-party, based on a risk evaluation that considers both risks associated with the food and the supplier
E.g., audits, testing, review of food safety records
All activities must be documented and subject to FDA review
“Deemed compliance” if the ingredient already is subject to supplier verification under the Preventive Controls rule
Foreign Supplier Verification Program
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Purpose: To protect food from intentional acts of adulteration where there is an intent to cause wide scale public health harm
Requires facilities to
conduct
a written vulnerability assessment to identify significant vulnerabilities
and actionable process steps
Then, implement mitigation strategies for actionable process steps, as appropriate
Implement food defense-specific management components (monitoring, corrective actions, verification)Focus is on bulk liquid receiving and loading; liquid storage
and handling; secondary ingredient handling; and mixing and similar
activities
Compliance date: July 26, 2019
Industry has raised concerns with the regulation
Intentional Adulteration (Food Defense)
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Establishes good transportation practices applicable to all transportation operations by motor or rail vehicle
Sets more specific obligations for shippers, loaders, carriers, and receivers in their respective roles
Important role for written agreements/contracts
FDA
is particularly focused
on:
Bulk cargoTemperature control for safety General maintenance of appropriate sanitary conditions
Exemptions include:Any transportation by farmsFully packaged food that does not require temperature control for safety Sanitary Transportation of Food
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For the first time, FDA has established basic food safety requirements for farms that are growing produce
(1) Worker Training and Health and Hygiene; (2) Agricultural Water; (3) Biological Soil Amendments; (4) Domesticated and Wild Animals; (5) Equipment, Tools, and Buildings; and (6) Sprouts
Applies to
almost all
produce,
except:
Produce subject to a kill step through commercial
processing (e.g., nuts that will be roasted), so long as certain documentation is keptSpecific commodities rarely consumed raw (e.g., potatoes) Produce Safety
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Would create an auditing system for importers
using the Voluntary Qualified Importer Program (VQIP) or for imports that must be accompanied by Mandatory Import Certification (MIC)MIC: Requirement for import certifications for high
risk food
imports,
as determined by FDA where foreign regulatory system is deemed
inadequate
FDA has suggested such a determination will be infrequentVQIP: “Fast lane” for certain low risk imports (narrow scope
)Only likely to affect companies that are interested in VQIP participationVQIP starts in October 2018Accreditation of Third Party Auditors
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Most of the compliance dates have passed March
19,
2018 is compliance
date for conducting supplier verification for a supplier that is a small business (<500 FTE employees company-wide)
FDA started conducting Preventive Controls and FSVP inspections in 2017
Supplier verification (Preventive Controls Subpart G) inspections also have started, apparently, but few companies have had them yet and FDA has not shared any trends or highlights
Inspections & Enforcement
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Planned 450 modernized GMP inspections; did 450+
Focus
on RTE foods with a high risk of allergens and/or pathogens
Preventive Controls inspections
:
Planned 300 (240 domestic/60 foreign); completed 115, 24 in progress; includes 32 foreign
77 “No Action Indicated” (NAI); 28 “Voluntary Action Indicated” (VAI); 10 “Official Action Indicated” (OAI)Inspectors reporting it takes 60 – 67 hours to conduct a PC inspection
FSMA PC Inspections – FY2017
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So far, FSVP inspections
are very easy
going
Primarily conducted by district-level import staff
Typically pre-announced and only last a few hours
FDA will let you know the line entry they’re focused on and may even send a list of the records that they’ll requestNo Warning Letters issued (as of mid-October 2017)
138 issuances of Form 483a Most common observation is failure to develop an FSVP and/or maintain adequate documentation FY 2017: Planned 325 inspections; conducted 290FY 2018: Planning for 2275 FSVP inspections!
FSVP Inspections – FY2017
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California’s Proposition 65
State law adopted in 1986
Requires the state to revise and republish at least once per year the list of chemicals known to the State to cause cancer or reproductive toxicity
Over 900 chemicals listed
Consumer rights-to-know: requires a warning/notice in instances when a product contains a listed chemical
Proposition 65 Warning for Foods
WARNING: Consuming this product can expose you to chemicals including
acrylamide, which is known to the State of California to cause
cancer.
For more information go to www.P65Warnings.ca.gov/food.
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Enforcement
State can sue to enforce warning requirements
Bounty hunter provision allows private parties to bring a law suit (and get paid)
Private parties have sued retailers and manufacturers for selling snack foods that did not provide warning of presence of acrylamide
Lawsuits usually result in consent decree settlements
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Glyphosate
Effective July 7, 2017
, Prop 65
listed glyphosate as a carcinogenic
chemical under the Proposition 65
The
compliance date for Proposition 65 warning regarding
glyphosate – containing products
is
July 7,
2018
Monsanto, the producer of Roundup, is challenging the Prop 65 listing of glyphosate through litigation on the basis of First Amendment
Preliminary injunction enjoining the warning requirements for glyphosate until full trial on merits (listing is still effective)
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Safe Harbor Exemption
No
Proposition 65 warnings are required if the businesses can establish the level of
a listed
chemical in the products would result in a dietary intake level that is within a “safe
harbor”
OEHHA
proposed
a No Significant
Risk Level
(NSRL) of 1,100
μg
per day for glyphosate
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NPA’s Glyphosate Testing
The major sources of glyphosate in food products include grains such as barley, oats,
and wheat
Conduct testing for glyphosate residues can:
Help NPA members proactively assess Prop 65 enforcement risks
Help NPA members better communicate with retail customers on the need for Prop 65 warning
Task Force is working on product categories to be tested and contractual labs
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Proposed Rule on Added SugarsGuidance for Industry: Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates Submitted as a Citizen Petition (21 CFR 10.30) (also online Q&A)
Draft Guidance for Industry: Declaration of Added Sugars on Honey, Maple Syrup, and Certain Cranberry Products
Guidance for Industry: Proper Labeling of Honey and Honey Product
Guidance for Industry: Reference Amounts Customarily Consumed: List of Products for Each Product Category
Guidance for Industry: Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Small Entity Compliance Guide
Gottlieb’s statement on nutrition labeling
FDA Nutrition Labeling
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Political Climate Uncertain (to say the least!)Mid-term Elections Will be Critical
Some Legislative and Regulatory Activity“Must Pass” billsRegulations mandated by statute
And Regulators will regulate, though constrained
Focus on FSMA Implementation, Farm Bill, Prop 65
Stay Tuned
Summary/Conclusion
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