Last summer the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, to create an exception from the warning requirement for listed chemicals that are formed when food is cooked or heat processed. In essence the proposed rule would treat food products that contain acrylamide as a result of cooking or heating as “naturally occurring” thereby relieving manufacturers of the duty to warn consumers about the presence of acrylamide as long as the levels present are below the OEHHA proposed thresholds. Continue Reading New Modifications to OEHHA’s Proposed Rule Offer Additional Flexibility
The U.S. Food and Drug Administration (FDA) recently released a new action plan designed to further reduce exposure to toxic elements, including heavy metals, from foods for infants and young children. This represents the latest development concerning the widespread focus on the levels of heavy metals in baby food. The action plan, titled “Closer to Zero” highlights four steps that the FDA will take over the next three years to reduce exposure to toxic elements “to as low as possible.” Continue Reading FDA Issues Action Plan to Reduce Heavy Metals in Foods
We have blogged about Missouri’s meatless meat statute, most recently on June 4, 2020. The statute purports to prohibit producers of plant- or lab-based “meat” from describing their products as such – e.g., bacon, burgers, or hot dogs. Shortly after the statute took effect, the Missouri Department of Agriculture issued an interpretive bulletin asserting that the statute did not bar the use of these words, so long as there was clear disclosure about the true origin of the product. This interpretation, of course, nullified the obvious purpose of the statute – to protect growers of conventional meat from competition. Continue Reading Missouri Meatless Meat Statute Update
On February 5, 2020, we blogged about the Kansas so-called “ag gag” law. The objective of the statute is to discourage undercover scrutiny of agricultural facilities to obtain evidence of cruelty to animals, food safety violations, and other malfeasance and to broadcast that evidence to the public. The Kansas statute accomplishes this by making it a criminal offence to enter onto the property to take photos or recordings or to remain on the property without the owner’s consent. Consent induced by fraud is invalid. The statute also provides a private right of action for damages.
Earlier this year, the District Court held that the Kansas law violated the First Amendment. The state appealed and the result was a lively oral argument before the Tenth Circuit that could well result in a reversal. Judge Hartz and Judge McHugh were most active; the third panel member, Judge Murphy, was silent.
Based on her questions, Judge McHugh was clearly sympathetic to the judgment. She clearly thinks that the purpose of the statute is to silence undercover investigations and that violates the First Amendment. Judge Hartz seemed much more sympathetic to the state. He kept pushing the parties as to why the standard, plain vanilla trespass statute would not ban the conduct in question; as a general rule consent induced by misrepresentation is no consent at all. Plaintiffs’ counsel finally agreed that the general trespass statute could apply to such conduct, which would suggest that the ag gag law is unnecessary.
We expect an opinion in a month or so.
On January 12, 2021, Massachusetts Governor Charlie Baker signed into law Bill S2841 amending Chapter 138 of the General Laws by inserting Sec. 25E 1/2. Under M.G.L.A. 138 § 25E ½ “a brewery may, without good cause, terminate the right of a licensed wholesaler to whom such brewery has made regular sales of malt beverages subject to the provisions of this section.”
- In order to qualify, breweries must produce less than 240,000 barrels of beverages in a year.
- Breweries must provide the affected wholesaler no less than 30 days’ written notice and full compensation… the laid-in cost of the merchantable inventory plus the laid-in cost of the current sales and marketing material plus the fair market value of the distribution rights for the brands that are being terminated by the brewery. Nothing prevents a successor wholesaler from paying the compensation to the affected wholesaler directly or from compensating a brewery for any compensation paid by the brewery.
- Given a dispute between the brewery and the affected wholesaler that cannot be agreed upon within 30 days of notice, the parties may request that the amount be decided upon in arbitration conducted in the Commonwealth.
This new law is already the subject of a pending lawsuit in Massachusetts.
On February 22, 2021, the Hawaii Senate passed SB No. 65, a measure allowing direct-to-consumer shipping of distilled spirits in original containers. The bill was passed in response to the legislature’s finding that the COVID-19 pandemic and the governmental responses to contain the spread of COVID-19 have disproportionately affected certain local liquor producers. With the frequent closure of bars, clubs, and in-person dining, local liquor producers have struggled to find alternative methods of serving their customers, resulting in drastic revenue losses. Continue Reading Hawaii Senate Passes Bill Allowing Direct-To-Consumer Shipping of Distilled Spirits
Recently, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations related to short form warnings. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods. Continue Reading OEHHA Proposes Changes to Prop 65 Short Form Warnings
On January 21, 2021 at 3:00 PM in Eastern Time, the Centers for Disease Control and Prevention (CDC) will host a joint webinar to provide updates on COVID-19 vaccine implementation for food and agriculture essential workers. The webinar will also cover vaccine safety and confidence as well as recommendations for vaccine prioritization.
The panelists for the webinar include:
- Janell Routh—Medical Officer, COVID-19 Vaccine Task Force, CDC
- Michelle Colby—Co-Chair Government Coordinating Council, Food and Agriculture Sector, U.S. Department of Agriculture (USDA)
- LeeAnne Jackson—Co-Chair Government Coordinating Council, Food and Agriculture Sector, Food and Drug Administration (FDA)
- Caitlin Boon—Associate Commissioner for Food Policy and Response, FDA
- Kis Robertson Hale—Deputy Assistant Administrator, Office of Public Health Science, USDA Food Safety and Inspection Service
If you are interested in attending the webinar, you can pre-register here. Pre-registration is required to attend the webinar. Please submit questions in advance by emailing firstname.lastname@example.org. Additional resources and information on COVID-19 prevention and vaccination in the food and agricultural industry can be found here.
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 Seth Mailhot, Ryan Glenn, or Emily Lyons.
In December 2020, the US Congress voted to pass, and the President signed, the long-awaited Craft Beverage Modernization and Tax Reform Act (“CMBTRA”), making permanent the reduction in the federal excise tax (“FET”) rate paid by distillers.
The CMBTRA was originally signed into law on January 1, 2018 as a two-year tax break for producers, lowering the FET rate from $13.50 to $2.70 per proof gallon on the first 100,000 proof gallons. This tax break meant that many of the smaller and family-run producers could start investing in their businesses, buying equipment they previously couldn’t afford, taking a paycheck, and hiring additional staff.
Many distillers thought the bill was to be made permanent in 2019. Instead, Congress passed a one-year extension, maintaining the reduced FET rate, but leaving many distillers uncertain about the long-term permanence of the law. Without a permanent passage, the tax rate on spirits producers would increase by 400%.
Distilleries have lost almost 40% of their workforce due to pandemic. A significant tax hike in the current economic conditions could have been disastrous for the industry. The now permanent reduction in the FET rate will help producers survive the pandemic, and continue to create jobs and fast track their growth in the future.
On December 29, 2020, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) published a final rule in the Federal register that amends TTB’s regulations that govern wine and distilled spirits. Specially, the final rule adds seven new standards of fill for wine and distilled spirits. The additional container sizes are:
|355 mL||1.8 L|
|250 mL||900 mL|
|200 mL||720 mL|
The final rule comes after TTB published Notices 182 and 183 on July 1, 2019, which proposed to eliminate all but a minimum standard of fill for wine containers and eliminate all but minimum and maximum standards of fill for distilled spirits, respectively. Both notices also sought comments on alternatives to eliminating standards of fill, included authorizing some or all of the petitioned-for sizes discussed in the notices.
After reviewing the almost 2,000 comments, TTB decided not to eliminate the standard of fill for wine and distilled spirits. Rather, TTB is adding the most petitioned-for sizes. These additions, TTB believes, will result in many of the same benefits intended with eliminating the standard of fill, including providing bottlers with more flexibility, facilitating the movement of goods in domestic and international commerce, and providing additional purchasing option to consumers without causing disruption or confusion.