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FDA Delays Implementing Nutrition and Supplement Facts Label Rules

June 16, 2017

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The FDA has announced that it is delaying implementation of the Nutrition Facts and Supplement Facts Label and Serving Size final rules.  As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 26, 2018, although manufacturers with annual food sales of less than $10 million were given an additional year to comply.

The FDA did not elaborate on the new timeframe for implementation, but stated in a revised online guidance that it will provide details of the extension through a Federal Register Notice at a later time.

The rules require a revamped Nutrition Facts format that would increase the type size of certain nutrition information, require mandatory declarations for “added sugars,” Vitamin D and potassium, impose a new definition of “dietary fiber,” and revise serving sizes for certain food products.

The FDA explained that the extension was in response to

The Last Unicorn… Frappuccino?

While the mythical unicorn is a rare creature, it has recently become a marketing phenomenon, with the unicorn’s rainbow-laden powers being harnessed to sell unicorn-themed products that can cover you from literally head to toe, i.e., from makeup (such as “Unicorn Snot®”, a glitter gel) to slippers and even a toilet spray made with “unicorn farts” (Squatty Potty’s “Unicorn Gold®”). Perhaps inevitably, brand owners have begun to battle over who can lay claim to a unicorn trademark. And this includes drinks that sound like coffee (but largely are not).

Click here to read the Alert prepared by Bryan Cave attorneys Eric Schroeder, Steven Alagna and Nick Williamson in full.

Food Importers Must Ensure Food Meets U.S. Safety Standards Under FDA’s Food Supplier Verification Program

Requirements take effect this week under the FDA’s new Food Safety Verification Program (FSVP), which makes retailers and other businesses that import food into the United States responsible for verifying that the food has been produced in a manner that meets applicable U.S. safety standards.

FSVP is one of the seven foundational rules of the FDA’s Food Safety Modernization Act (FSMA), the most sweeping reform of our food safety laws in more than 70 years. It aims to ensure the U.S. food supply is safe by shifting the focus from responding to contamination to preventing it.

A central tenet of the FSVP is that the same preventive food safety standards should apply to all food consumed in the U.S., regardless of where the food is produced. The FSVP therefore requires that importers have a program in place to verify that their foreign suppliers are producing food in a manner that

FDA Announces Waivers to Sanitary Transportation Rule

Today, FDA announced that it has issued the first three waivers under the Sanitary Transportation of Human and Animal Food Rule, one of the many rules designed to implement the Food Safety Modernization Act. These waivers are for the following entities:

•Businesses holding valid permits that are inspected under the National Conference on Interstate Milk Shipments’ Grade “A” Milk Safety Program, only when transporting Grade “A” milk and milk products.

•Food establishments authorized by the regulatory authority to operate when engaged as receivers, or as shippers and carriers in operations in which food is delivered directly to consumers, or to other locations the establishments or affiliates operate that serve or sell food directly to consumers. (Examples include restaurants, supermarkets and home grocery delivery services.)

•Businesses transporting molluscan shellfish (such as oysters, clams, mussels or scallops) that are certified and inspected under the requirements established by the Interstate Shellfish Sanitation Conference’s

Beware the Empty Space – Defending Food Packaging Design Against Slack Fill Claims

April 3, 2017

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There is a recent proliferation of slack fill litigation involving food products – both class and non-class suits. If you are a food manufacturer, distributor or seller, you need to be prepared to deal with these claims. A good starting point, particularly for manufacturers, is to analyze your food packaging designs to determine if and how you can defend them in court, and if not, how you can change your packaging to mitigate your risk against slack fill claims while also preserving the success of your brand. Successful slack fill claims can impose considerable risk, from injunctive relief that disrupts distribution and sales, including product recalls, to the often enormous expense of package design overhauls, which may require you to start all over your branding efforts, to the disgorgement of revenues from sales of violating products.

Slack fill is the difference between the actual capacity of a container and the

Fifth Circuit Rules for PACA Claimants, and Weakens PACA, All in One Curious Ruling

February 15, 2017

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The Perishable Agricultural Commodities Act regulates transactions in fresh and frozen fruits and vegetables. It does this in part by creating a general trust for the benefit of produce sellers.  In this post written for Bryan Cave’s Bankruptcy and Restructuring Blog, Atlanta Associate Leah Fiorenza McNeill tackles some of the bankruptcy implications of the PACA trust presented by the recent Fifth Circuit opinion in Kingdom Fresh Produce, Inc. v. Stokes Law Office (In re Delta Produce), which found that “the trust structure of PACA mandates that produce sellers be paid in full even prior to the costs of counsel which collected every single dollar needed to pay those very produce sellers’ claims.”  Leah concludes:

Kingdom Fresh can be viewed as a victory for produce sellers and other beneficiaries of PACA – once again, such creditors are declared to be first among all other creditors.  But its slavish devotion to

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