California egg law - carton of eggsOn October 19, 2019, and December 4, 2019, we blogged about the North American Meat Institute’s challenge to California Proposition 12.  Proposition 12 prohibits the sale in California of pork or veal derived from animals confined in conditions that do not comply with the strict California standards.  It builds on the previous ban on the sale of eggs discussed in Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 870 F.3d 1140 (9th Cir. 2017) (the foie gras case), about which we blogged on May 29, 2018.

As we reported on December 4, 2019, the District Court denied NAMI’s motion for preliminary injunction.  On October 15, 2020, the Ninth Circuit affirmed in a short, per curiam opinion.

The Ninth Circuit panel held that NAMI had presented no evidence that the purpose of the statute was to discriminate against out-of-state businesses.  It also held that Proposition 12 does not have a discriminatory effect because “it treats in-state meat producers the same as out-of-state producers.” Continue Reading Update on California Proposition 12

We have blogged on several occasions, most recently on June 4, 2020, about state laws attempting to shield traditional producers of meat and poultry from competition from producers of plant- and cell-based meat. These statutes typically attempt to prohibit such producers from calling their product “meat.” Most such statutes have been stricken, in whole or in part, on First Amendment grounds.

The latest state to enter the fray is Oklahoma. Unlike other states, Oklahoma did not prohibit the marketing of meatless meat as meat. Instead, it required disclosure of the product’s vegan status in “type that is uniform in size and prominence to the name of the product.” Violators could be liable for $10,000 fines and even jail time.

The practical effect of this statute, however, is to prohibit sales of meatless meat in Oklahoma. No other state imposes such a requirement, so the producer has a choice: redesign the entire label for Oklahoma sales or stay out of the state. In addition, as a matter of marketing strategy, producers want the largest type for the name of the product – not a disclosure.

Upton’s Naturals and the Plant-Based Foods Association have sued to enjoin the statute. They argue that the statute compels speech. Under the First Amendment, states have the right to compel such speech only when necessary to prevent deception. Plaintiffs argue there is nothing misleading about their current labels, given that they clearly disclose the origin of the product. At the very least, therefore, the statute must survive intermediate scrutiny to satisfy the First Amendment. Continue Reading Meatless Meat Update

On October 7, 2020, we blogged about the request by the Harvard Law Animal Law and Policy Clinic that the Department of Agriculture (USDA) and the Food Safety Inspection Service (FSIS) refrain from proposing regulations governing so-called meatless meat products: foods that resemble traditional meats and poultry but derived from cell culture or plants.

On October 19, 2020, two industry groups asked the USDA to do the opposite. The Alliance for Meat, Poultry and Seafood Innovation (representing cell-based producers) and the North American Meat Institute (representing traditional producers) requested the USDA to solicit the data needed to establish mandatory labeling requirements for meatless meat.

Their letter noted that the launch date for marketing cell-based meat is fast approaching. The producers of such products want clear and truthful labeling that enables consumers to distinguish them from conventional meat and disparages neither kind of product. Continue Reading Meatless Meat Regulatory Update

We have blogged, most recently on July 30, 2019, about Minnesota’s farm winery statute. The statute allows local wineries to sell direct to retailers and the public, unlike the traditional three-stage manufacturer-distributor-retailer system. In order to qualify for the farm winery license, the winery must obtain 50% or more of its ingredients from Minnesota sources. If that proves impossible, the winery must apply for an exemption which is discretionary and only runs for a year.

Two Minnesota farms challenged the statute on the ground that it discriminates against interstate commerce by giving a leg up to Minnesota producers of wine ingredients, mostly grape juice. The District Court dismissed the lawsuit on standing grounds, but the Eighth Circuit reversed as we discussed on July 30, 2019.

On remand, the parties filed cross-motions for summary judgment. As we predicted, the District Court found that the statute violates the dormant commerce clause by overtly discriminating against out-of-state producers of the ingredients for wine. The Court agreed with Minnesota that the statute does not discriminate against out-of-state wineries. But it held that fact is irrelevant, because it so clearly does favor Minnesota producers of the ingredients.

The finding of discrimination against out-of-state commerce triggers strict scrutiny, which requires the state to prove that there is no reasonable, non-discriminatory way to accomplish the state’s legitimate interests. As a practical matter, the opinion states, the “only way” to do so is to prove that the out-of-state articles are more dangerous than in-state articles.

The state made no effort to satisfy strict scrutiny and the Court held that it could not. It acknowledged that the state had a legitimate interest in encouraging in-state economic activity. But the state could not serve that interest at the expense of out-of-state businesses.

The opinion holds that the state presented neither evidence nor argument that out-of-state ingredients were more dangerous than Minnesota ingredients. And the statute itself belies any such suggestion because it allows up to 49% of ingredients to come from out of state.

The surprisingly short opinion in Alexis Bailly Vineyard, Inc. v. Herrington, is reported at 2020 WL 5106789 (D. Minn. 2020). It is unclear whether the state will appeal as its time to file runs through the end of September.

We have blogged on several occasions, most recently on June 19, 2020, about so-called “meatless meat” statutes – statutes intended to regulate the labeling of products resembling traditional meat or poultry but produced from plant- or lab-based materials. The Food Safety and Inspection Service (FSIS) of the Department of Agriculture has concurrent jurisdiction over such matters along with the FDA, and the agencies are contemplating issuing regulations.

The Harvard Law Animal Law and Policy Clinic (ALPC) recently asked FSIS to postpone any regulations in the area of lab-based meat until it has a better understanding of the safety of such products and has had an opportunity to review proposed labels.

The idea of lab-based meat was first bruited in 1930. The first patent for such a product was awarded in 1999 and numerous start-ups claim that they are ready, or almost ready, to sell lab-based meat commercially. Continue Reading Update On Meatless Meat

Partners Michael Annis and Ryann Glenn of Husch Blackwell’s Food & Agribusiness industry team were recently featured over at Meat + Poultry discussing the broad effects of COVID-19 on the meat processing industry, including the potential impact of the Safe to Work Act currently being considered in the U.S. Congress.

Last week, the U.S. Food and Drug Administration (FDA) and Occupational Safety and Health Administration (OSHA) issued a checklist to assist human and animal food operations during the COVID-19 public health emergency. The checklist is useful for persons growing, harvesting, packing, manufacturing, processing or holding human and animal food regulated by FDA when assessing or restarting operations during the pandemic.

The first section of the checklist focuses on employee health and social distancing, which includes considerations for employee wellbeing, employee screening, and operation configuration for social distancing to prevent or minimize the spread of COVID-19. The second section of the checklist focuses on food safety, which includes considerations when restarting operations after a shutdown, and reassessing operations to make changes due to COVID-19 such as changes to personnel, suppliers, and incoming ingredients, on food safety or Hazard Analysis and Critical Control Points (HACCP) plan, as well as current good manufacturing practices (CGMPs).

The guidance document incorporates many of the other resources already developed by FDA, OSHA, and the Center for Disease Control for food and agricultural operations to consider during the COVID-19 pandemic:

It is important to note that the checklist is not an OSHA standard that establishes a basis for a fine or liability under the Occupational Safety and Health Act.  However, OSHA and states operating under OSHA-recognized state plans have cited employers in the food sector under the General Duty Clause, which requires employers to maintain workplaces free of recognized hazards. The checklist is a useful resource for food operations to ensure its COVID-19 policies and procedures meet these obligations.

Contact Us

We will continue to monitor developments related to the COVID-19 outbreak and its impact on the food and agricultural sector. Should you have any questions regarding this alert, contact your Husch Blackwell attorney Avi Meyerstein, Seth Mailhot, or Emily Lyons.

The U.S. Food and Drug Administration issued a final rule, effective October 13, 2020, to establish compliance requirements for fermented and hydrolyzed foods, or foods that contain fermented or hydrolyzed ingredients, and that are labeled “gluten-free.” Continue Reading FDA Finalizes Rule Related to Gluten-Free Labeling for Foods Containing Fermented or Hydrolyzed Ingredients

The United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) has proposed to amend the organic regulations to strengthen oversight and enforcement of the production, handling, and sale of organic agricultural products. This is one of the largest overhauls since the National Organic Program (NOP) was established. Continue Reading USDA’s Proposed Rules on Organic Enforcement