Digest

Main Content

Year In Review: 2020 Food, Beverage & Supplement Litigation Round-Up

The global pandemic, stay at home orders, and government issued lockdowns did not stop 2020 from being yet another active year for new regulatory activity and litigation targeting the food, beverage and supplement industries.

In this round-up, Bryan Cave Leighton Paisner LLP presents a collection of regulatory developments, key court decisions, and notable settlements that were reached in 2020.

The highlights of this 2020 round-up include:

  • New federal and state legislation governing food labeling, packaging, and taxation
  • Litigation trends within the food industry
  • COVID-19 related litigation and regulation
  • An update on regulations and litigation regarding CBD-based products
  • Slack fill litigation update
  • Plant-based product litigation update
  • Prop 65 and food safety update
  • Notable rulings and settlements
  • A preview of areas to watch in 2021

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

February 3, 2021

Categories

U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

As part of President Biden’s first executive actions, on January 21, 2021, the president ordered the federal Occupational Safety and Health Administration (“OSHA”) to issue new science-based guidance to protect workers and enhance workplace health and safety during the Covid-19 pandemic. In compliance with this executive order, on January 29, 2021, OSHA issued new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks. The guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” (“Guidance”) contains advisory recommendations and reinforces already existing mandatory safety and health standards. This Alert provides an overview of this new federal Guidance and highlights important considerations for employers.

Click here to read the Alert in full.

California Prop. 65 Warning Requirement for THC Makes CBD, Hemp and Cannabis Products a Target

The California Proposition 65 warning requirement for THC took effect on January 3, making cannabis, hemp and CBD products a likely target for private enforcement actions.

Although under federal law CBD products are allowed to contain up to 0.3 percent THC, or Δ9-Tetrahydrocannabinol, no safe harbor level of exposure to THC has been established under Prop. 65.  That means private enforcers can argue that any detectable amount can subject a product to the Prop. 65 warning requirement.  Companies can work with consultants to develop a safe use determination for THC, but until it is established and accepted, enforcement actions will be a material risk.  Notably, the Prop. 65 listing applies to Δ9-THC, although the Prop. 65 requirements may still be triggered by residual Δ9-THC present in other THC products, like Δ8-THC distillates.

At the same time that THC was added to the Prop. 65 list, California’s Office of Environmental Health

FDA Reaches Voluntary Agreement with Manufacturers to Phase Out Certain Short-Chain PFAS in Food Packaging

The U.S. Food and Drug Administration has announced that manufacturers of certain per- and polyfluoroalkyl substances (PFAS) used for grease proofing in paper and paperboard for food packaging (for example, as coatings on some fast food wrappers, to-go boxes, and pizza boxes) have voluntarily agreed to phase out sales of these substances for use as food contact substances in the United States, following new analyses of data raising questions about potential human health risks from chronic dietary exposure.

Starting in January 2021, three manufacturers will begin a three-year phase out of their sales of certain substances that contain 6:2 FTOH for use as food contact substances in the U.S. marketplace.  It may take up to 18 months after the phase-out period to exhaust existing stocks of paper and paperboard products containing these food contact substances from the market. A fourth manufacturer informed the

Proposition 65 – OEHHA Proposes Safe Harbor Concentrations and Blanket Protections for Exposures to Acrylamide and Other Listed Chemicals in Cooked or Heat Processed Foods

On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements Proposition 65 and has the authority to promulgate and amend regulations, released a proposed regulation providing that intake of listed chemicals formed by cooking or heat processing foods would not represent an exposure for the purposes of Proposition 65 if the concentrations are reduced to the lowest level currently feasible. The proposed regulation would also establish maximum concentration levels for acrylamide in specific foods that are deemed by OEHHA to be the lowest levels currently feasible. Concentrations of acrylamide at or below the level identified for the specified products would not require a warning. Public comments concerning this proposed action must be received by OEHHA by October 6, 2020.

Proposition 65 prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical that has been

UK Government Business and Planning Bill – Licensing update

June 29, 2020

Categories

Pavement Licences

To help food and beverage operators to maximise their capacity whilst complying with social distancing guidelines, the Bill introduces a fast track procedure for pubs, bars, restaurants and others selling food or drink for consumption to obtain a “pavement licence” from the local authority.

A pavement licence will allow operators to put removable furniture on part of the highway adjacent to their premises for use, among other things, in connection with the sale, serving, or consumption of food and drink.

The application must be displayed by site notice and must go through a 7 day public consultation period from the day after the application was made. Local authorities will then have 7 days to make a decision following the end of the public consultation period. Failure to reject the application will amount to a deemed grant of the licence. The local authority can levy a fee of up

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.