The European Commission has proposed rules intended to reduce the buildup of single-use plastic in oceans. The rules would ban plastic products with a readily available and affordable alternative, such as cutlery, plates, straws and drink stirrers. In addition, manufacturers "will help cover the costs of waste management and clean-up, as well as awareness raising measures" for several plastic products, including "food containers, packets and wrappers (such as for crisps and sweets)" and "drink containers and cups."
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The Court of Justice of the European Union (CJEU) has held that the name of German whisky Glen Buchenbach may mislead consumers into believing the product is manufactured in Scotland. Scotch Whisky Assoc. v. Klotz, No, C-44/17 (CJEU, entered June 7, 2018). CJEU clarified EU law on registered geographical indications, holding that an "indirect commercial use" can occur if the product at issue includes an element either identical or phonetically and visually similar to the registered indication but does not occur if the "element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto." CJEU remanded the case to German court for a final determination, which may consider a magistrate's preliminary finding that "'glen' does not have a sufficiently clear and direct link with the protected geographical indication in question."
The California Supreme Court has affirmed an appeals court ruling holding that an assessment collected to subsidize a grapes promotional campaign is constitutional and not compelled speech. Delano Farms Co. v. Cal. Table Grape Comm'n, No. S226538 (Cal., entered May 24, 2018). The growers argued that the program required them to "sponsor a viewpoint (promoting all California table grapes equally) with which they disagree" because they "believe that the table grapes they grow and ship are exceptional." The California Table Grape Commission asserted that the program was government speech rather than private speech, resulting in no free speech violation. The court concluded that the compelled grape subsidy constituted government speech, focusing on the "governmental direction and control" of the messaging. "In sum, the Commission was created by statute and given a specific mission to, among other things, promote in a generic fashion a particular agricultural product," the court held. "In…
A federal court has dismissed a lawsuit alleging that the National List's sunset review process violates the Administrative Procedures Act. Ctr. for Food Safety v. Perdue, No. 15-1590 (N.D. Cal., entered May 24, 2018). The court found that the notice promulgating the alteration of the review process was not a final action because it did not “alter any criteria or standards for the evaluation of a particular substance." The challenge further presented ripeness issues because the harms, such as the inclusion of certain compounds in organic foods, may never materialize, the court noted. The notice does not predetermine the U.S. Department of Agriculture's (USDA's) decision to renew or remove a substance, the court held, and the plaintiffs are not precluded from later asserting harms from an “allegedly wrongful renewal. Plaintiffs must accordingly await that decision for the Court to properly review USDA’s actions,” the court concluded.
A federal court has denied a motion to reconsider a denial of class certification in a lawsuit alleging that Tropicana Products Inc. mislabeled its orange juice as “natural.” In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered May 24, 2018). The plaintiffs argued that the court misconstrued its theory of liability, gave more weight to the defendant’s expert opinions, overlooked evidence of class-wide injury and erred in its ascertainability analysis. The court ruled that because the plaintiffs “exhaustively alleged” that the juice contained added flavoring, whether the product conforms to the standard of identity for pasteurized orange juice "lies at the heart of Plaintiff’s theory of liability as articulated by Plaintiffs’ own words.” Finding the claims unsupported by the pleadings, the court found no cause for reconsideration. The court also pointed to an expert opinion showing variation in the reasoning behind consumer decisions to buy the…
The U.S. Court of Appeals for the Fifth Circuit has affirmed a ruling that a Texas restaurant, “The Krusty Krab,” infringed Viacom International Inc.'s common law trademark. Viacom Int’l, Inc. v. IJR Capital Invs., No. 17-20334 (5th Cir., entered May 22, 2018). The court held that Viacom had established both use and distinctiveness of the mark because "The Krusty Krab” had been extensively and consistently licensed, establishing Viacom’s ownership of the mark as an identifier of goods and services. The court also found an impermissible likelihood of consumer confusion. Although the court noted that its ruling did not establish trademark protection “in every context” for Viacom’s mark, it affirmed the finding of the district court that Viacom had established its ownership in common law.
The Colorado Supreme Court has upheld a municipal ordinance charging a $0.20 "waste reduction fee" for paper grocery bags and prohibiting disposable plastic bags, ruling the charge is part of a regulatory program of waste management and not a tax. Colo. Union of Taxpayers Found. v. City of Aspen, No. 16SC377 (Colo., entered May 21, 2018). After two members of the plaintiff advocacy group paid the bag charge in Aspen, the group sued the city and members of the city council alleging the charge was a tax subject to voter approval under the state's Taxpayer Bill of Rights. The trial court and the Colorado Court of Appeals ruled in the city’s favor. The court noted that grocers are permitted to retain a portion of the $0.20 charge to provide information to customers, train staff and improve collection and administration, while the remainder is submitted to the city on a form separate…
A group of advocacy organizations has sent a letter asking the leaders of the Senate Committee on Agriculture, Nutrition & Forestry to "fully support organic agriculture in the Farm Bill and to oppose any changes that would undermine the organic standards and the National Organic Standards Board (NOSB)." The organizations urge the committee to refrain from changing the board's authority or composition, which could "harm the integrity of the organic program, undermine consumer trust in the organic label, and severely damage the reputation of the industry as a whole." The letter also includes a number of requests to fund various organic-farming programs.
A New York Times opinion piece has detailed the efforts of Sandy Lewis, an organic cattle farmer, to persuade fellow ranchers and others in the agriculture industry not to administer antibiotics for growth in cattle. Lewis, a former arbitrageur, has called on the U.S. Food and Drug Administration to ban and criminalize the use of antibiotics before cattle are sick, a prophylactic use acceptable under the agency's regulation banning antibiotics for growth promotion. The piece echoes a March 2018 report from the New York Times on the effects of antibiotic use in cattle feed on antibiotic resistance and gut microbes.
The National Labor Relations Board (NLRB) has ruled that a pizzeria that fired an employee who criticized a manager did not violate the National Labor Relations Act. Bud’s Woodfire Oven LLC, No. 05-194577 (N.L.R.B., issued May 18, 2018). The determination focused on whether the employee acted on his own behalf or engaged in protected concerted activity by criticizing his manager using profanity during a staff meeting. The board found no corroboration for the employee’s testimony that other coworkers had complained about the manager’s conduct; further, the employee's criticism did not "lay the foundation for meaningful dialogue about employees' terms and conditions of employment.” Instead, the employee’s remark was intended as an insult and “calculated to undermine [the manager’s] authority,” the board held.
