The U.S. Food and Drug Administration (FDA), the Center for Science in the Public Interest (CSPI) and the National Consumers League have filed a joint motion to stay a lawsuit intended to compel the agency to implement the delayed menu labeling rule required by the Affordable Care Act. Ctr. for Sci. in the Pub. Interest v. Price, No. 17-1085 (D.D.C., filed September 15, 2017). FDA has agreed to: (i) confirm in the Federal Register on or before December 31, 2017, that the compliance date of the rule is May 7, 2018; (ii) publish draft or final guidance by December 31, 2017; and (iii) announce by “rule, guidance, public statement, publically-available document, or otherwise,” if the compliance date could or will be extended past May 2018. If FDA fails to meet those terms, the advocacy groups may move for, and FDA will not oppose, expedited hearing of the lawsuit. Additional details appear…
The European Court of Justice (ECJ) has determined that member states cannot invoke the “precautionary principle” to restrict the cultivation and sale of crops developed from genetically modified organisms (GMOs) if the European Commission has not determined that the crops “are likely to constitute a serious risk to human health, animal health or the environment.” Case C-111/16, Italy v. Fidenato (E.C.J., entered September 13, 2017). The ruling responded to a request from an Italian court overseeing the prosecution of three farmers accused of growing GMO maize in violation of Italian law. The district court judge stayed the criminal proceedings to ask the ECJ whether Italy had the authority to ban the crop despite EC approval of its cultivation and sale. In 2013, Italy asked the European Commission to adopt emergency measures allowing member states to apply a “precautionary principle” and implement risk-management measures where “the possibility of harmful effects on…
The Organic Trade Association has filed a lawsuit to compel the U.S. Department of Agriculture (USDA) to implement the Organic Livestock Rule, which was scheduled to take effect on March 18, 2017. Organic Trade Ass’n v. U.S. Dep’t of Agric., No. 17-1875 (D.D.C., filed September 13, 2017). After 10 years of public process and hearing, USDA published the final rule in January 2017 along with formal recommendations from the National Organic Standards Board (NOSB) resulting from consultations required by the Organic Foods Production Act (OFPA). On January 20, 2017, former White House Chief of Staff Reince Priebus issued a memorandum to federal agencies directing them to temporarily postpone effective dates for regulations that had been published but had not yet taken effect. The complaint alleges that public comment should have been permitted on whether the Priebus memo applied to the Organic Livestock Rule because its standards affect only those who…
The Ninth Circuit Court of Appeals has reversed a lower court's denial of a preliminary injunction stopping the warning-label portion of San Francisco's sugar-sweetened beverage (SSB) tax from taking effect. Am. Beverage Ass'n v. City & Cty. of San Francisco, No. 16-16072 (9th Cir., entered September 19, 2017). Additional information about the complaint and denial appears in Issues 573 and 605 of this Update, and details on the enforcement delay and associated amicus briefs appear in Issues 592, 607 and 613. San Francisco's warning-label ordinance would require a warning about the health effects of SSBs—specifically, "Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay"—to occupy 20 percent of the visible portions of fixed SSB advertising, including billboards, structures and vehicles. After several industry associations challenged the requirement, the district court held that the warning was not misleading, would not place an undue burden on the plaintiffs' commercial…
Netflix has reportedly requested that a Chicago bar end its theming related to the company's popular "Stranger Things" show. "The Upside Down" was intended to be a six-week installation run by neighboring Emporium Logan Square, an arcade-themed bar, but success led the creators to plan on extending the pop-up past its scheduled closing date of October 1, 2017. In a letter filled with references to the 1980s-set show featuring a group of children fighting a supernatural entity, Netflix asked the bar owners to close the temporary installation as planned. "We're not going to go full Dr. Brenner on you, but we ask that you please (1) not extend the pop-up beyond its 6 week run ending in September, and (2) reach out to us for permission if you plan to do something like this again," the letter stated. "We love our fans more than anything, but you should know that…
The National Advertising Division (NAD) has ruled that Mizkan America, Inc. provided a reasonable basis for its advertising claim that “consumers prefer the taste of Ragú Homestyle Traditional over Prego Traditional.” The Campbell Soup Co., which makes Prego, challenged the ad on the grounds that Mizkan’s consumer survey methodology was flawed. Both parties conducted a taste test of the products; the Mizkan test reportedly showed a consumer preference for Ragú while the Campbell test showed no preference. The Mizkan test included testing of all tomato-based sauces, while Campbell limited its test to traditional-style sauces. NAD found the Campbell test “overly restrictive” and that its results were not “stronger or more persuasive” than those of Mizkan.
The U.S. Food and Drug Administration (FDA) has announced that the produce safety rule of the Food Safety and Modernization Act of 2010 (FSMA) is now final, establishing minimum standards for the growing, harvesting, packing and holding of raw produce for human consumption. Compliance dates are staggered but will affect large operations first. The key requirements include: (i) establishment of criteria for microbial water quality based on the presence of E. coli; (ii) rules governing the use of raw manure and compost; (iii) testing and corrective-action requirements for cultivation of sprouts; (iv) rules for assessment of contamination by domestic livestock and wild animals; (v) measures for worker training, health and hygiene; and (vi) standards for equipment, tools and buildings. Qualified exemptions and variances are also included for small farms, tribes and foreign countries that export food to the United States.
Partner Katie Gates Calderon was a panelist at the Food and Drug Law Institute (FDLI) Food Advertising, Labeling and Litigation Conference in Washington, D.C., September 13-14, 2017. She joined Jessica Almy, policy director at The Good Food Institute, and moderator Stuart M. Pape of Polsinelli PC in a discussion of “Naming of Plant-Based Food Products and Standards of Identity.” The panel explored legal issues in naming and the role of standards of identity in the ever-growing world of alternative products.
A consumer has filed a putative class action alleging that American Sugar Refining mislabeled its agave syrup as “organic” because it contains isomaltose, an ingredient “not naturally found in pure agave syrup.” Valdes v. Am. Sugar Refining, No. 17-5213 (E.D.N.Y., filed September 5, 2017). The complaint asserts that while the only ingredient listed on the product label is organic agave nectar, independent testing revealed the presence of isomaltose, which is “commonly found in high fructose corn syrup” and “other non-natural, non-organic sweeteners.” Alleging violations of state consumer-protection laws, fraud, breach of express warranty and unjust enrichment, the plaintiff seeks class certification, damages, an injunction, restitution and attorney’s fees.
For a second time, the Trademark Trial and Appeal Board (TTAB) has granted Frito-Lay North America’s petition for cancellation of Snyder's-Lance Inc.’s application to trademark “Pretzel Crisps,” finding the term is generic. Frito-Lay N. Am.v. Princeton-Vanguard, LLC, No. 91195552 (TTAB, entered September 6, 2017). TTAB initially found "pretzel crisp" to be generic following Frito-Lay's opposition to the application, but the Court of Appeals for the Federal Circuit vacated and remanded the decision, holding that TTAB had used an incorrect legal standard for its opinion. On remand, TTAB first considered the genericness of the individual terms then analyzed the whole term, again finding that “the primary significance of the term in the minds of the consuming public is to identify a product rather than to identify a single producer of that product, and that indeed the 'Pretzel Crisps' product may derive from more than one source.” In addition, TTAB ruled that…
