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Year in Review: 2019 Food, Beverage and Supplement Litigation Roundup

2019 was another active year for new regulatory activity and litigation targeting the food, beverage, and supplement industries.

In this roundup, Bryan Cave Leighton Paisner LLP presents a collection of regulatory developments, key court decisions, and notable settlements that were reached in 2019 and early 2020.

The highlights of this 2019 roundup include:

  • New federal legislation governing food labeling.
  • New regulations and a burst of litigation regarding CBD-based products.
  • An update on slack fill litigation.
  • Notable rulings, trials, and settlements.
  • Prop 65 and food safety update.
  • A preview of areas to watch in 2020.

COVID-19: FDA and USDA Guidance on Worker Safety and Sanitation in Food Production Facilities

March 26, 2020

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As the COVID-19 pandemic has continued to escalate, both the Food and Drug Administration (“FDA”) and the U.S. Department of Agriculture (“USDA”) have issued guidance and public statements advising manufacturers and distributors in the food and agriculture industry how best to maintain worker safety and sanitation in food production facilities.

In sum, both the FDA and USDA currently emphasize that foodborne exposure is not known to be a route of transmission of COVID-19 and defer to local rules and pre-established guidelines with regards to maintaining clean food facilities.  Below are highlights from FDA and USDA on worker safety and sanitation in food production facilities in light of the coronavirus pandemic:

A. Overview:

  • “Food facilities, like other work establishments, need to follow protocols set by local and state health departments, which may vary depending on the amount of community spread of COVID-19 in a particular area.” – USDA.
  • “We do

The Demise of Country of Origin Labeling (COOL)

The Demise of Country of Origin Labeling (COOL)

May 26, 2015

Authored by: Sara Ahmed and Brandon Neuschafer

Digest has been tracking the U.S. Country of Origin Labeling (“COOL”) rules that the WTO decided last year violate international fair trade rules.  It was the third time the WTO found COOL to be unfairly discriminatory.

In response to the threat of retaliation by Canada and Mexico, last week, the House Agricultural Committee voted to repeal a portion of COOL.  Under the bill, beef, pork, and chicken products will likely no longer state where the animals were born, slaughtered, and packaged.  The USDA had previously tried to no avail to revamp the rules upon the WTO’s prior rulings.

The U.S. National Farmers Union’s President, Roger Johnson, has been vocal in his feelings against the move to repeal portions of COOL and stated: “The House Agriculture Committee has succumbed to lobbying and scare tactics from foreign governments and multinational meatpackers and inserted itself prematurely into the WTO process by voting for a bill

USDA Approves Genetically Modified Apples, But Will They See The Shelves?

February 22, 2015

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On  February 13, 2015, the Department of Agriculture’s Animal and Plant Health Inspection Service approved the Arctic apple, a genetically modified strain of apple developed to resist browning.  A Canadian company, Okanagan Specialty Fruits Inc., first filed its petition for deregulation nearly three years ago.  The technology works by “turning off” the production of a certain enzyme that is produced when an apple is cut or bruised.  The Arctic apple is the one of the first deregulated genetically modified products designed to promote consumer-preferred traits, as opposed to traits like herbicide tolerance that promote certain production practices.

Notwithstanding APHIS’s approval, the question still remains of whether and how widely producers and consumers will adopt the technology in today’s environment surrounding GMOs.  Because it will be at least five to seven years before Arctic apple trees can bear fruit that can be marketed, producers will be required to do some significant

USDA Prevails at the D.C. Circuit

USDA Prevails at the D.C. Circuit

July 31, 2014

Authored by: Sara Ahmed and Brandon Neuschafer

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

Update: Canada Poised to Respond if COOL Requirements Stay As Is in the Farm Bill

A decision has not come down from the U.S. Court of Appeals regarding the USDA’s Country of Origin Labeling “COOL” law , but Canada is positioning itself to launch a trade-war with the United States just in case.

Earlier this week, the Farm Bill was passed by the House of Representatives and made its way to the Senate for approval.  A Senate vote is expected next week, but Canadians are not hopeful for an amicable settlement as the House did not make any substantive changes to the country of original labeling requirements.

Since 2008, when COOL was initially adopted, Canada has dissented, claiming that the it is far too costly and injures the meat industry.  Gerry Ritz and Ed Fast, Canada’s Federal Agriculture Minister and International Trade Minister made the following combined statement:

“By refusing to fix country-of-origin labelling, the U.S. is effectively legislating its own citizens out of

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