Food And Beverage News And Trends - October 2, 2026

Welcome to Food and Beverage News and Trends. This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal, and regulatory landscape.

FDA releases 2026 Food Code. On September 17, the US Food and Drug Administration (FDA) announced the release of the 2026 Food Code, its first update since 2022. Although the Food Code is not self-executing, it serves as a model for state and local retail food regulations and inspection programs. Notable changes include a new requirement for food establishments to, within four years of a jurisdiction’s adoption of the Code, develop and maintain a written Food Safety Management System; a mandatory written employee illness policy; and new requirements distinguishing disinfection from routine sanitization. The Code also expands provisions for reusable containers and adds a double-gloving option, new defined terms, and guidance addressing sushi rice acidification, dehydration, and freeze-drying. FDA encourages state, local, Tribal, and territorial authorities to adopt the updated Code, which could promote greater consistency in retail food safety standards and inspections. Adoption timelines vary significantly by jurisdiction; at this writing, 21 states have adopted the 2022 Food Code. 

OIRA UPF meetings extend into October. The White House’s Office of Information and Regulatory Affairs (OIRA) is continuing its inter-agency review of FDA’s white paper on a proposed definition of ultra-processed foods (UPFs), with meetings now scheduled through October 9. According to the Executive Order 12866 meeting schedule, 19 stakeholder meetings have been held or scheduled on the white paper since August. October meetings are currently scheduled with the Environmental Working Group and SNAC International, a trade association for the snack industry. Scheduled September meetings involved the Plant Based Food Association, University of Pennsylvania’s Center for Food & Nutrition Policy, American Farm Bureau Federation, National Fisheries Institute, Grain Chain, and Center for Science in the Public Interest. See our earlier coverage of FDA’s UPF white paper here. 

New trend in consumer litigation: Allulose claims. We are closely watching an emerging consumer litigation trend: putative class actions involving products labeled as sugar-free or zero-sugar and sweetened with allulose. This summer, ruling in the putative class action case Franco v. Chobani, the US Court of Appeals for the Seventh Circuit found that the plaintiffs’ lawsuit against the yogurt maker may proceed. At present, FDA permits food manufacturers to exclude allulose from the “Added Sugars” and “Total Sugars” listings in the Nutrition Facts label, via non-binding guidance issued in 2020; however, in that guidance, FDA did not amend its regulatory definition of “sugars” or the definitions of overarching nutrient-content claims, such as “zero sugar” and “sugar free.” In Franco v. Chobani, the plaintiffs allege that Chobani’s Zero Sugar yogurts, which are sweetened with allulose, are mislabeled. Allulose, they state, is a monosaccharide and is thus a sugar within the meaning of § 101.9(c)(6)(ii). The plaintiffs allege violations of numerous state-level consumer protection laws. In July, the Seventh Circuit found their arguments plausible, stating, “Perhaps consumers aren’t deceived by Chobani’s products because they don’t understand promises about sugars to mean allulose.” Since that ruling, consumers in four districts have filed putative class actions addressing similar claims on foods containing allulose.

California enacts package of food and nutrition legislation. California Governor Gavin Newsom has signed a package of food-related bills establishing a non-UPF certification program, added-sugar labeling requirements for restaurants, nutrition requirements for children’s meals, and restrictions on sales of certain weight-loss and muscle-building dietary supplements to minors. The package reflects California’s continued focus on UPFs, nutrition, and other food-related public health measures.

White House reportedly blocks major MAHA food policy actions. According to The Wall Street Journal, White House officials have blocked or delayed several food policy initiatives advanced by health officials, including publication of FDA’s proposed definition of UPFs and USDA updates to school meal nutrition standards. The White House reportedly raised concerns about the breadth of the proposed UPF definition, including potential trade and litigation implications. Proposed changes to school meal standards also faced opposition over increased costs.

USDA-FSIS expands Listeria environmental sampling nationwide. USDA’s Food Safety and Inspection Service (FSIS) announced plans on September 18 to expand environmental Listeria sampling at ready-to-eat (RTE) establishments nationwide, following a pilot program conducted in fiscal year 2026 in three FSIS districts – Alameda, California; Chicago; and Raleigh. The remaining FSIS districts will be phased in from January to March 2027. Following the pilot’s expanded sampling approach, FSIS inspectors will collect two food-contact surface and two non-food-contact surface swabs alongside existing RTE post-lethality exposed product samples. The environmental swabs will be analyzed for Listeria monocytogenes (L. monocytogenes) and non-L. monocytogenes Listeria species to help identify sanitation problems and potential harborage sites. FSIS will host listening sessions with industry stakeholders and USDA-regulated establishments before and during implementation. More information and invitations to the sessions will be issued in the coming months. 

FDA amends food additive regulations on vitamin D₂ inactive baker’s yeast. In a September 25 Federal Register notice, FDA announced it is amending the food additive regulations to provide for the safe use of vitamin D₂ inactive baker’s yeast as a source of vitamin D₂ in specific food categories, including breakfast cereals, grain products, pasta, and milk products. The action is in response to a food additive petition filed in September 2021 by Lallemand Inc. Inactive baker’s yeast is produced by exposing baker’s yeast (Saccharomyces cerevisiae) to ultraviolet (UV) light before using heat to inactivate the yeast. FDA concluded that the proposed use of inactive baker’s yeast as a source of vitamin D₂ was safe and not expected to increase overall dietary exposure to vitamin D, including vitamin D₂ and vitamin D₃. The agency also concluded that exposing baker’s yeast to UV light does not pose a safety concern, "since the UV light treatment has been shown not to produce any new components of toxicological concern that could be introduced into the diet.” Written objections and requests for a hearing on FDA’s final order to amend its food additive regulations are due by October 26. 

FDA releases report on retail deli safety gaps. On September 16, FDA announced the release of a 54-page report, Occurrence of Foodborne Illness Risk Factors in Retail Food Store Delis. The report, summarizing FDA data collected at 438 randomly selected retail food store delis from 2019 to 2022, found that improper holding time/temperature was the most commonly observed out-of-compliance risk factor, affecting 84 percent of delis. Closely following this risk factor was poor personal hygiene at 61.9 percent and contaminated equipment/protection from contamination at 52.7 percent. Of all the compliance risk factors, inadequate cooking was the least common at just nine percent. The report emphasizes that, for delis, the strongest predictor of minimal risk is a well-developed food safety management system (FSMS). Further, delis with Certified Food Protection Managers (CFPMs) in charge while the data was collected had significantly better FSMS scores than those that did not have CFPMs. FDA is releasing two fact sheets based on the findings of the study with calls to action for regulators and industry. The next data collection is scheduled to begin in October 2026.

USDA launches program to bring meat inspection programs to additional states. On September 16, Secretary of Agriculture Brooke Rollins announced USDA’s Stand-Up Program, which will provide up to USD50 million in new funding to help states start or expand their own meat inspection programs in partnership with FSIS. The program is pursuant to President Donald Trump’s two September 4 Executive Orders seeking to expand market access for American meat producers and strengthen the domestic supply chain. Currently, 31 states operate State Meat and Poultry Inspection (MPI) programs, and 11 participate in the Cooperative Interstate Shipment (CIS) program. According to participating states, high startup costs may deter others from initiating a state meat inspection program. The Stand-Up Program seeks to lower that barrier, allowing more small, very small, and mid-size processors to be inspected and providing more ranchers with processing options closer to home. State MPI programs are required to operate “at least equal” to federal food safety standards; enrolled plants can sell their products throughout the state. States with existing MPI programs can join the CIS program and sell across state lines. Furthermore, state sites must be able to demonstrate that their inspection standards match federal standards.

• States now operating MPI programs: Alabama, Arizona, Arkansas, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

• States now participating in the CIS program: Indiana, Iowa, Georgia, Maine, Missouri, Montana, North Dakota, Ohio, South Dakota, Vermont and Wisconsin.

USDA said the new funding follows a USD75 million commitment to state inspection programs in fiscal 2025 and 2026, along with an additional USD15 million appropriated by Congress.

USDA requesting public comment on 18 SNAP food restriction waivers. On September 15, USDA announced it is seeking public comments on already approved Supplemental Nutrition Assistance Program (SNAP) food restriction waivers in 18 states. Those waivers allow the states to ban SNAP recipients from using their benefits to buy products like candy, sugary sodas, and energy drinks. USDA’s Food and Nutrition Administration (FNA) is seeking comments by October 15 in Arkansas, Florida, Hawaii, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia, and Wyoming. The notices follow the department’s appeal of a court ruling that vacated SNAP waivers in five of those states – Colorado, Iowa, Nebraska, Tennessee, and West Virginia – in part due to inadequate notice-and-comment procedures. Those five states were not included in USDA’s request for comments. As the litigation proceeds, USDA has requested that states whose waivers were set to take effect on or before October 15 delay implementation. The notices maintain that formal public announcement is not required for each restriction waiver’s implementation and provide justification for the waivers under the Food and Nutrition Act of 2008. The requests note that FNA is particularly interested in comments regarding the state’s implementation and operation of the demonstration project.

Government seeks information from farmers on fertilizer business practices and moves to increase supply. Deputy Agriculture Secretary Stephen Vaden has called on farmers to share information about alleged unfair pricing and anti-competitive business practices by fertilizer companies to support ongoing federal investigations. Farmers and agricultural industry members may submit information anonymously through SaveFamilyFarms.US. Separately, the United States Department of Agriculture (USDA) continues efforts to increase domestic fertilizer production, including through its USD500 million Fertilizer Investment & Expansion for Long-term Domestic Supply (FIELDS) program.

District court issues stay of USDA staff relocations. On September 14, the US District Court for the Northern District of California ordered an administrative stay of USDA’s imminent plans to relocate employees across the US. The stay is part of a suit brought on September 8 by a coalition of federal unions arguing that USDA’s plans to relocate thousands of its employees to regional hubs are a veiled attempt to further shrink its workforce. The stay, which will end on October 2, suspends deadlines for all “management directed reassignment” letters USDA has issued so far, as part of its reorganization plans. The stay follows a September 2 decision in another case by the same court, which allowed USDA’s reorganization plans to continue pending further proceedings. USDA said it expects no more than 2,000 of the 4,600 employees currently working in the national capital region to remain there after it completes its reorganization. 

USDA’s Lindberg tapped to lead World Food Programme. On September 11, the United Nations and its Food and Agriculture Organization named US Department of Agriculture (USDA) Under Secretary for Trade and Foreign Agricultural Affairs Luke J. Lindberg to the role of Executive Director of the UN World Food Programme (WFP). The WFP is the world’s largest humanitarian agency, managing an annual budget of USD6.4 billion and a workforce of more than 17,000. It assists more than 120 million people in 120 countries and territories. Nominated by the Trump Administration in April, Lindberg was one of 54 candidates seeking the post. The previous Executive Director was Cindy McCain, who stepped down in June.

Michigan confirms investigation of bovine TB cases in two cattle herds. On September 15, the Michigan Department of Agriculture and Rural Development (MDARD) reported cases of bovine tuberculosis (TB) in two cattle herds in Iosco County. One herd was found as part of a trace investigation related to a previously identified TB-positive herd, the agency stated; the other was identified as part of routine whole herd surveillance testing. “Epidemiological investigations are already underway to identify any potential additional cases stemming from these newly identified affected herds,” MDARD stated. “Whole genome sequencing will also occur to help determine the source of the infection.” Bovine TB (Mycobacterium tuberculosis – M. bovis) is a bacterial disease that can affect all mammals, including humans. It is known to be present in free-ranging white-tailed deer in the region and can spread from infected deer to cattle. With more than 12,000 Michigan cattle producers who maintain more than 1.2 million cattle, MDARD is partnering with the Center for Disease Control and Prevention (CDC) One Health program to address the outbreaks and work to eradicate bovine TB in Michigan.

Texas publishes its first state dietary guidelines. In a September 9 news release, the Texas Department of State Health Services (DSHS) announced that the Texas Nutrition Advisory Committee (TNAC) had published the state’s first nutritional guidelines, created “by Texans for Texans.” TNAC was created last year as part of Texas SB 25 to review scientific findings on nutrition and UPFs and recommend ways Texans can improve their health through their food intake. The seven-member committee, appointed by Governor Greg Abbott, includes one expert in metabolic health, culinary medicine, lifestyle medicine, or integrative medicine; one licensed physician certified in functional medicine; one member representing the Texas Department of Agriculture; one member representing a rural community; one member representing an urban community; and one pediatrician specializing in metabolic health. TNAC’s new guidelines urge Texans to fill half their plates with fruits and vegetables, eat at least three servings of healthy protein daily, include healthy fats and “food for healthy bones and teeth” in daily diets, choose minimally processed whole grains, and drink water as their primary beverages. The guidelines, with the slogan “Eat Real Food, Y’all,” offer advice on how to cook food healthfully and avoid UPFs and ingredients. 

New World Screwworm update.

• The Santa Teresa, New Mexico port of entry reopened to Mexican livestock imports on September 24, with about 400 head of cattle passing Mexican and US inspections to enter the US. Santa Teresa is the most active border inspection site for livestock entering the US from Mexico – over the past five years, USDA Secretary Rollins recently stated, 43 percent of Mexican cattle imports crossed into the US at that port of entry. Rollins added that the recent reopening of the Douglas, Arizona port of entry to Mexican livestock “has exceeded all expectations.” About 5,000 head of cattle have entered the US at Douglas since its reopening last month. If the Santa Teresa reopening is successful, the port of entry at Columbus, New Mexico will be the next to reopen.

• The Santa Teresa port reopened despite the confirmation of two New World Screwworm (NWS) cases this month, in horses in Presidio County, Texas on September 9 and Grant County, New Mexico on September 18. The total number of confirmed NWS cases in the US this year now stands at 50. These are also the first confirmed NWS cases in US horses since the parasite was eradicated from the country in the 1960s.

• In Texas, meanwhile, on September 28 USDA reported the capture of a wild screwworm fly in a trap – one of more than 100 such traps set up by USDA along the Texas–Mexico border as part of the joint US–Mexico screwworm response. It is the first wild NWS fly found in any of the traps. In a post on X, USDA stated, “We strategically place traps just outside of infested areas to avoid capturing sterile flies and better pinpoint where wild flies may be moving.”

Avian flu update. The resurgence of the H5N1 variant of avian influenza continues to affect US commercial poultry operations, particularly in the upper Midwest. Observers are reporting that, this year, the fall uptick in cases is being observed several weeks earlier than usual. 

• At this writing, H5N1 has been confirmed in 13 US commercial poultry operations in the past 30 days. Most of the outbreaks have occurred in the Midwest.

• On September 15, the Wisconsin Department of Agriculture, Trade and Consumer Protection reported an outbreak of H5N1 in a commercial poultry flock in Barron County. The flock has already been culled. The Wisconsin Department of Health Services (DHS) and Barron County Public Health are reportedly monitoring exposed farm workers for symptoms of H5N1. 

• Also on September 15, APHIS confirmed an outbreak of H5N1 affecting a flock of 55,700 meat turkeys in Big Stone County, Minnesota. It was the fourth outbreak in a commercial flock in Minnesota this month and the 13th this year.

• In South Dakota, H5N1 has struck two commercial turkey meat farms in McPherson and Turner counties, affecting a combined 62,300 birds.

• On September 27, the Salt Lake Tribune published a report on the outbreak of H5N1 at a mink farm. Utah is the second largest producer of mink in the US.

• In Canada, where no outbreaks of H5N1 had been reported since May, the Canadian Food Inspection Agency (CFIA) has confirmed outbreaks during September at six commercial facilities in separate municipalities. Control zones have been established around the sites, which are in the Rural Municipalities of Bifrost-Riverton, Cartier, De Salaberry, Rhineland, Rockwood, and Woodlands.