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
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
On January 6, 2021, we blogged about two California farms’ challenges to California’s regulation requiring agricultural producers to grant unions access to their property to recruit workers. The regulation required access for three hours a day – one hour before work started, one hour at lunch and one hour after work – for a maximum of 120 days per year. The Ninth Circuit held that this regulation did not constitute a per se taking for purposes of the Fifth Amendment because it did not require access on a 24/7 basis.
Continue Reading Update on Union Access to Property
Partner Carlos Rodriguez has authored an article on International Trade Insights regarding a troubling pattern of disappearing service contracts in ocean shipping and the resurgence of ocean tramp practices.
This occurrence has impacted agricultural companies which export to China, as carriers are holding cargo at the terminal for several weeks, then increase shipping rates, and…
For the past 45 years, California’s Agricultural Labor Relations Board (ALRB) has promulgated a regulation requiring producers of agricultural products to give union organizers access to their property. Access is limited to four 30-day periods per calendar year. Organizers can access the property one hour before start of work, one hour after end of work, and one hour over the lunch break. In 1976, the California Supreme Court held that the regulation did not constitute a taking of producers’ property.
The United States Supreme Court recently granted a petition for certiorari in a case challenging the ALRB’s regulation. In 2016, two producers sued the ALRB, primarily on the theory that the regulation established an easement over their property for the benefit of union organizers and hence constituted a per se physical taking, requiring compensation. The District Court dismissed the complaint and a divided panel of the Ninth Circuit affirmed. Over a strong dissent by eight judges, the Ninth Circuit denied rehearing en banc.
The growers argued that the regulation was a per se taking because it allowed a permanent physical invasion of their property. The panel opinion rejected that theory, because the alleged invasion was not “permanent and continuous.” Rather, it was limited to three hours a day for not more than 120 days per year. The opinion also held that the right to exclude others was merely one strand in the bundle of property rights.
Continue Reading Ag Producers Challenge Union Access To Property
A recent decision of the Trademark Trial and Appeal Board (“TTAB”) highlights the overlap between trademark law and food regulatory law as well as the United States’ and Europe’s different approaches to Geographic Indications (“GIs”). GIs identify the particular location where an agricultural product (such as cheese, wine, or spirits) originates.
Interprofession du Gruyère, a Swiss association, and Syndicat Interprofessionnel du Gruyère, a French association, jointly filed a U.S. trademark application at the U.S. Patent and Trademark Office (“USPTO”) on September 17, 2015 to register the term GRUYERE as a certification mark for cheese. The Swiss association already owned Registration Number 4,398,395 for the certification mark LE GRUYERE SWITZERLAND AOC and Design. In the new application, the French and Swiss associations sought to register the term GRUYERE as a word mark, meaning that they made no claim to a particular stylization or design. In effect, if the USPTO granted registration of the French and Swiss associations’ application, the associations could prevent others in the U.S. from using the term “gruyere” on cheese made outside of the Gruyere region of Switzerland and France.
The U.S. Dairy Export Council and several other entities filed to oppose the associations’ application on the basis that the term “gruyere” is generic for a style of cheese in the U.S. (In full disclosure, Emily was employed during part of this proceeding at the International Dairy Foods Association, another opposer in the case, and assisted it in this proceeding before joining Husch Blackwell.) Most of the other entities ultimately withdrew their oppositions or the TTAB dismissed their claims. …
Continue Reading The Trademark Trial and Appeal Board Rules U.S. Cheesemakers Can “Say, Gruyere!”
On November 11, 2020, we blogged about Oklahoma’s meatless meat statute. Like similar statutes in other states, the primary purpose of the Oklahoma law was to protect traditional producer of meat and poultry from competition from plant- and cell-based producers of meatless meat. Unlike other states, however, Oklahoma did not attempt to ban the use of the word “meat,” or other descriptors such as “bacon” or “burger.” Oklahoma merely required producers of meatless meat to proclaim its origins in labeling of the same size and font as the product’s name.
On November 19, 2020, the District Court denied plaintiffs’ motion for a preliminary injunction. The Court held that the governing case was Zauderer v. Office of Disciplinary Counsel, which allows the government to require disclosure of purely factual and uncontroversial information, so long as it is reasonably related to a substantial government interest and not unduly burdensome.
Continue Reading Meatless Meat Update
On 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