On May 26, 2022, the U.S. Food and Drug Administration (FDA) issued Warning Letters to four companies concerning the illegal sale of unapproved animal drugs containing cannabidiol (CBD) intended for use in food-producing animals. These Warning Letters demonstrate the first time the FDA chose to focus on marketing CBD-containing products for use in food-producing animals, as opposed to pets, and the specific concerns related to such use. Food-producing animals, as defined by the FDA, include cattle (veal calves, beef cattle, and dairy cattle), swine, chickens, turkeys, and others (such as lambs). Continue Reading FDA Issues Warning Letters to Companies Whose Products Are Intended for Use with Food-Producing Animals
Earlier this month, the U.S. Food and Drug Administration (“FDA”) completed guidance to help companies remove violative products from the market in a swift and effective manner. The guidance describes the precautionary steps companies should take to develop recall policies and procedures that include training, planning, and recordkeeping to reduce the amount of time a recalled product is exposed to the public. Continue Reading FDA Issues Final Guidance for Voluntary Recalls
As part of the PetFood Industry Webinar Series, HB Partners Ryann Glenn and Emily Lyons will be hosting a free webinar about managing FSMA (Food Safety Modernization Act) requirements and pet food product recalls on January 20, 2022.
This presentation will provide an update on how domestic and foreign pet food manufacturers are managing FSMA (Food Safety Modernization Act) compliance and the issues identified by FDA during inspections. Ryann and Emily will dive deeper into the types of hazardous animal food found in raw pet food that companies need to manage. Additionally, they will provide helpful tips in crafting Food Safety Plans, developing recall plans, and how to hedge future litigation risks.
For more information or to register, click here.
The meat processing sector has been in the crosshairs of the federal government over that last several years due to increased consumer prices for meat products and complaints from farmers and ranchers. These complaints have rallied the Biden Administration to review and consider addressing these issues which are perceived to be caused by consolidation among meatpackers. Specifically, the Department of Justice (DOJ) and the U.S. Department of Agriculture (USDA) announced on January 3, 2022 their shared principles and commitments to use the Packers and Stockyards Act (P&S Act) and federal competition laws to address complaints regarding alleged anti-competitive behavior within the meatpacking industry. This announcement is in response to President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy, particularly in the meat and poultry processing sector, as well as USDA’s announcement in July 2021 to begin work to strengthen enforcement of the Packers and Stockyards Act (P&S Act). Continue Reading DOJ and USDA Agree to Work Together on Enforcement of Meat and Poultry Processing Sector
About a year ago, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the short form warning rules for Proposition 65. Proposition 65 requires businesses to warn Californians about exposure to certain chemicals through “clear and reasonable” warnings. There are currently two forms of “safe harbor” warnings, one of which is the short form warning. The short form warning requires less detail, takes up less label space, and does not require the listing of any chemical names, which has made it a popular choice.
OEHHA, concerned about misuse of the short form warning proposed to modify the short form warning rule in early 2021 to provide consumers with more detailed information and to limit the use of short form warnings to small products. The public comment period for these initial proposed revisions closed on March 29, 2021. Following the public comment period and a public hearing, OEHHA received over 150 written and oral comments. In response to those comments OEHHA is now proposing the following modifications to the proposed rule:
- Increasing the maximum label size for short form warnings from 5 square inches to 12 square inches
- Continuing to allow the use of short form warnings on websites and catalogs
- Adding additional signal options: “CA Warning” and “California Warning”
- Creating an additional warning option for exposure to carcinogens or reproductive toxicants
- Removing the use of the term “product label” to increase clarity
While the proposed rule will still limit the use of short form warning, the above modifications offer some relief. The modified proposed rule is available here. OEHHA is requesting comments on the proposed modifications until January 14, 2022.
If your organization is interested in commenting on this proposed regulation, contact one of Husch Blackwell’s Proposition 65 legal team members. Our team also assists manufacturers in determining whether their products are covered by Proposition 65, provide assistance designing complainant warnings, as well as serve as legal counsel to address a Proposition 65 60-day notices.
In case you missed it while preparing for your Turkey dinner, on November 22, 2021, the United States Supreme Court decided 9-0 that the Equitable Apportionment Doctrine, which had prior to this decision been held to apply only to surface waters, now also applies to interstate aquifers i.e., underground waters. Mississippi v. Tennessee, et al.  Continue Reading Water Law Update: The Equitable Apportionment Doctrine: It’s not Just for Rivers and Streams Anymore
The Federal Trade Commission (FTC) has launched an inquiry into the ongoing supply chain disruptions affecting a broad array of goods across the economy. Using a compulsory process to investigate the competitive impact of supply chain disruptions in consumer goods, under Section 6(b) of the Federal Trade Commission Act, 15 U.S.C. § 46(b), the FTC is requiring nine large retailers, wholesalers, and consumer good suppliers to supply information on the causes for the disruptions and the ongoing impact for consumers and competition. Additionally, the FTC is requesting comments from the public, including retailers, suppliers, wholesalers, consumers, and other interested parties.
The FTC intends to understand the disruptions better and “examine whether supply chain disruptions are leading to specific bottlenecks, shortages, anticompetitive practices, or contributing to rising consumer prices.” Continue Reading FTC Investigates Supply Chain Issues and Impact on Consumers
In March 2020, the Food and Drug Administration (FDA) issued temporary guidance documents allowing for the increased production of alcohol-based hand sanitizer during the COVID-19 outbreak. Due to that guidance, most consumers and healthcare personnel have been able to obtain hand sanitizer without difficulty. Now the FDA plans to withdraw the temporary guidance on December 31st, 2021. This withdrawal impacts any company manufacturing alcohol-based hand sanitizers under the temporary policies. Continue Reading FDA’s Withdrawal of Temporary Guidance for Alcohol-Based Hand Sanitizers
On April 8, 2021, we blogged about the 10th Circuit oral argument in Animal Legal Defense Fund v, Kelly, the first amendment challenge to Kansas’ so-called “ag-gag” law. Animal rights groups often use deceptive tactics to obtain access to agricultural facilities, where they can document animal abuse and expose it to the public. Continue Reading Kansas Ag-Gag Law Update
On August 23rd the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) struck down federal regulations restricting refunds on export taxes and restricting beer and wine manufacturers greater tax refunds for duties paid on imports. In National Association of Manufacturers v. Department of the Treasury (see ruling here), the Federal Circuit upheld the lower court, the Court of International Trade (“CIT”), and ruled against the U.S. Treasury Department’s revised definition of duty drawback for wine. Under U.S. tax law, the duty drawback program allows companies to apply for and receive certain tax refunds of excise taxes paid on imported goods. For example, a wine importer and manufacturer could recoup duties paid on 100 bottles of imported wine by exporting 100 bottles of similarly priced wine of the same class/type.
Under a revised 2018 rule, the Treasury Department changed the interpretation of the statutory definition of drawback (19 U.S.C. § 1313(v)) to exclude goods imported and then exported duty-free. The Treasury Department argued that the current scheme allows wine companies to receive a near total refund of the excise taxes paid on imports. The Treasury Department also argued that other industries could benefit from the same scheme following the liberalization of substitution drawback requirements. The National Association of Manufacturers (“NAM”) and the Beer Institute brought a lawsuit claiming that the interpretation was contrary to law, arbitrary and capricious, and impermissibly retroactive. In January 2020, the CIT ruled that federal regulations could not limit when American companies were eligible for a refund of excise taxes on imports after those companies export similar products. The CIT determined that the intent of Congress was to expand exports at the expense of lost excise tax revenue.
The Federal Circuit affirmed the CIT’s finding that the statutory definition of drawback was unambiguous and thus, inappropriate for administrative interpretation and Chevron deference. The Court noted that drawback is “designed to incentivize exports from the United States and allow U.S. exporters to compete more fairly with overseas competitors.” NAM’s Senior Vice President and General Counsel, Linda Kelly, stated in response to the Federal Court decision, “this program helps manufacturers in America level the playing field when they sell to overseas markets.” Given the above, this court decision will preserve important tax incentives for beer and wine manufacturers and suppliers that export product from the United States.