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USDA Prevails at the D.C. Circuit

USDA Prevails at the D.C. Circuit

July 31, 2014

Authored by: Sara Ahmed

Yesterday, a D.C. Circuit decision came down upholding the country of origin labeling requirements (“COOL”). COOL is the law that requires retailers licensed under the Perishable Agricultural Commodities Act to, among other things, label certain meat products with information regarding where the animal was born, raised, and slaughtered.

In yesterday’s ruling, the Court took an expansive approach to the Zauderer standard and held that, at least in the context of meat labeling, the government can compel commercial speech for reasons beyond preventing deception.

Included in those reasons the court cited to were: “the context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending country-of-origin labeling to food products; and the individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak.”

Dissenting Judge Janice Rogers Brown criticized that the ruling means “a business owner no longer has a

Consumer Reports’ Survey Confirms The Fight Against “All Natural” Is Well Underway

June 19, 2014

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With 59 % of consumers checking labels, it is more important than ever for food producers and manufacturers to ensure their labels are what they say and to protect themselves while marketing their products.

 In February of this year, Digest covered the increase in “all natural” litigation, noting that labeling cases are filling court dockets. Consumer Reports’ recent study regarding customers’ interpretations of food and beverage labels shows that consumers are becoming increasingly concerned about issues such as GMO, organic, and country of origin labeling. The study focused on “natural” labels and according to Urvashi Rangan, the executive director of the Consumer Reports Food Safety and Sustainability Center, “[d]ue to overwhelming and ongoing consumer confusion around the ‘natural’ food label, we are launching a new campaign to kill the ‘natural’ label because our poll underscores that it is misleading, confusing, and

Update: Appeals Court Favors COOL

April 3, 2014

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Update: Appeals Court Favors COOL

April 3, 2014

Authored by: Sara Ahmed

You may recall that on January 9, 2014, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments regarding COOL, the law that requires retailers licensed under the Perishable Agricultural Commodities Act to label certain meat products with information regarding where the animal was born, raised, and slaughtered.

On March 28th, the federal appeals court affirmed the lower court’s denial of the American Meat Institute’s motion for preliminary injunction, an attempt to prevent the USDA from enforcing COOL.

In his ruling, Judge Stephen F. Williams wrote that COOL labeling “enables a consumer to apply patriotic or protectionist criteria in the choice of meat,” and “enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.” The court also noted that allowing the US a chance to comply with the WTO’s 2011

Gear Up for the FDA’s Menu Labeling Regulations

Gear Up for the FDA’s Menu Labeling Regulations

January 23, 2014

Authored by: Sara Ahmed

The FDA’s highly anticipated proposed rules regarding menu labeling are set for release just around the corner, and businesses and elected officials are already reacting.

The proposed rules apply to chain restaurants, retail food establishments, and vending machines with 20 or more locations and require that menus be labeled with caloric information and that certain nutritional information be made readily available to patrons.

While some chain retailers applaud the idea of nationwide uniform labeling requirements for the sake of ease, others are concerned about the cost and efficacy of the proposed rules.

Domino’s CEO J. Patrick Doyle has been a dissonant voice in the debate since 2011.  Maine’s Senator Angus King is another critic, and joining him are both members of the Senate and House that have sponsored S. 1756 and H.R. 1249 , bills aimed at amending the FD&C Act.  Congresswoman Renee Ellmers, who supports the amendment, claims that the FDA’s proposed “one-size-fits-all

Bryan Cave Obtains Dismissal of Nutritional Supplement Patent Infringement Litigation

January 20, 2014

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Bryan Cave has been in the news recently for its representation of Pinnaclife Inc., regarding patent protection for nutritional supplements.  A California federal trial court judge dismissed claims that Pinnaclife infringed CreAgri Inc.’s patents for olive-based, anti-inflammatory supplements, ruling that CreAgri didn’t know the supplement would reduce inflammation when it filed the patent. San Francisco Partner Lee Marshall was quoted saying that Pinnaclife was glad the court recognized the importance of data in designing nutritional products. Litigation over nutritional supplements is increasing, he said, and many supplement patents lack the analytical rigor of pharmaceutical drugs. “If you have a nutritional supplement or a pharmaceutical drug, and you think it’s going to work, that’s not enough to get a patent,” Marshall said. “You need good data to demonstrate efficacy.”

The case is CreAgri Inc. v. Pinnaclife Inc., Case No. 5:11-cv-06635 in the United states District Court for the Northern District of California.

FDA Reports That 12% of Spice Imports Are Contaminated

What is in all of those little spice containers in the your kitchen?  According to the FDA, as recently reported by the New York  Times, about 12% of spice imports are contaminated with “insect parts, whole insects, rodent hairs, and other things.”  Nearly 7% of spices imported contained salmonella.   Under the Food Safety Modernization Act, FDA is looking at new rules to address food imported into the United States, including modifications to the foreign supplier verification program.  Recent changes to those proposed rules, however, are seen by many to weaken the program.  Those changes, which include eliminating the requirement for onsite audits and exemptions for importers doing less than $500,000 in business, would surely impact spice importers (as well as other food importers).

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