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Bioengineered Food Disclosure Rules Finalized, Require Disclosure of “Detectable” GMOs

On December 21, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published its final rule implementing the National Bioengineered Food Disclosure Standard(NBFDS) signed into law by President Obama in 2016.   The NBFDS preempted state and local genetic engineering labeling requirements and charged AMS with developing a national mandatory standard for disclosing the presence of bioengineered (BE) food.  The rule takes effect on February 19, 2019, and implementation will be phased in over the next three years.

As we previously reported, the NBDS requires food manufacturers, importers of food labeled for retail sale in the U.S. and some U.S. retailers to disclose foods and ingredients produced from foods that are or may be bioengineered.  The final rule defines “bioengineered food” as any food that “contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques and for which the modification could

Missouri Faces Challenge to Meat Labeling Law

January 9, 2019

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Amid growing debate over food identity standards, Missouri has become the first state to directly regulate whether meat substitutes can be labeled as “meat.” In August, Missouri passed Mo. Rev. Stat. § 265.494(7), which makes it a crime to misrepresent a product as meat that is not derived from livestock or poultry. Violators can be imprisoned for up to one year and fined up to $1,000.

The law targets two types of products: plant-based meat and cell-cultured meat (CCM). Plant-based meat is made from ingredients like soy, tempeh, and jackfruit. As we previously explained, CCM is grown in a lab by replicating animal cells. As the CCM industry is just emerging, the law most immediately affects sellers of plant-based products. But the law shows that the Missouri legislature may have anticipated labeling issues in connection with CCM and wished to take action in advance of the forthcoming changes

FDA Provides Guidance for New Nutrition and Supplement Facts Labels

On November 5, the FDA released non-binding guidance intended to answer questions related to 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 2018. The FDA has extended that deadline to January 1, 2020 for manufacturers with $10 million or more in annual food sales. Manufacturers with less than $10 million in annual food sales have an extra year to comply, until January 1, 2021.

The May 2016 rules require a revamped Nutrition Facts label that, among other things,

  • Increases the type size of certain nutrition information.
  • Requires declaring actual amount, in addition to percent Daily Value, of vitamin D, calcium, iron and potassium.
  • Requires declaring “Added sugars,” in grams and as percent Daily Value.
  • Updates the list of nutrients that are required or permitted.
  • Removes

Missouri Alcohol Retailers no longer Tongue-Tied by Tied-House Restrictions on Advertising

Missouri tied-house law, which restricts dealings between suppliers, wholesalers and retailers, is currently in flux following a recent ruling by the US District Court for the Western District, which held that several of Missouri’s regulations pertaining to supplier advertising were unconstitutional.  This pivotal opinion—which has wide-ranging implications for alcohol advertising in the state—was appealed to the 8th Circuit Court of Appeals on October 11, 2018 and has garnered widespread attention in the industry.  The case raises economic and practical issues for retailers and significant legal and policy issues for state regulators.

In June, 2018 the District Court struck down three types of restrictions on alcohol advertising: 1) a restriction forbidding media advertising of price discounts—including restrictions prohibiting retailers from offering discounts on the purchase of beer or wine and from outside advertising of discounts on alcohol; 2) a restriction forbidding retailers from advertising prices below cost; and 3) a statute

California Amends Slack Fill Law

California Amends Slack Fill Law

October 3, 2018

Authored by: Bob Boone and Sarah Burwick

Governor Jerry Brown recently signed into law Assembly Bill 2632, which amended California’s slack fill statute to create several exemptions.  This amendment will be an additional hurdle to the plaintiff bar, which has been flooding the courts with slack fill related lawsuits in recent years.  These lawsuits, typically filed as class actions, allege that product packaging is misleading to the extent it contains nonfunctional empty space, known as slack fill, which causes consumers to believe they are receiving more of the product than they actually are.

The new law, which will amend California Business and Professions Code Sections 12606 and 12606.2, includes the following key changes:

  • The amended law exempts packaging sold in a mode of commerce that “does not allow the consumer to view or handle the physical container or product.” It could be argued that this exempts online sales.
  • The amended law exempts product packaging that clearly

End of the Road for Mike and Ike Slack Fill Litigation

In another victory for a candy manufacturer, a federal court in Missouri denied class certification earlier this month, effectively ending the plaintiff’s attempt to seek damages on a class-wide basis for all consumers of Hot Tamales and Mike and Ike candies.

The lawsuit, White v. Just Born, alleged that boxes of the candy were underfilled, leaving unusable empty space, known as “slack fill,” that deceived the consumer into thinking he was receiving more candy than was actually in the package.  The plaintiff sought certification of a Missouri class, and two multi-state unjust enrichment classes, on the theory that the actual value of the candy was less than the consumers paid for it.

The court declined to certify all three classes, ruling that proving class-wide violation of Missouri’s Merchandising Practices Act “will involve predominantly individual inquiries as to whether each class member purchased the candy.” Because most consumers purchase this type

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