Companies directly and indirectly regulated by the U.S. Food and Drug Administration (FDA) face specific challenges separate from other businesses in dealing with the recent outbreak of coronavirus disease 2019 (COVID-19).  At the time of this writing, FDA has not offered specific recommendations on measures that regulated industries should take.  However, good manufacturing practice (“GMP”) requirements and the Federal Food, Drug and Cosmetic Act (“FDCA”) impose obligations on regulated industry to monitor and control employee health and sanitation practices as they relate to product quality and safety.  Beyond the risk of state and federal enforcement, there are reputational risks associated with inadequate management of COVID-19.

Continue Reading

We have blogged on several occasions, most recently on February 4, about the so-called “meatless meat” statutes – laws in which states try to protect their agricultural sectors by banning the use of words like “meat” or “chicken” or “burgers” to describe plant-based or lab-grown substitutes.  Three states – Missouri, Mississippi and Arkansas – have passed such statutes and a number of other states are considering doing so.  All of the existing statutes have met with First Amendment challenges.
Continue Reading

We have blogged, most recently on January 3, 2020, about the status of so-called “ag-gag” laws.  These laws are designed to prevent undercover scrutiny of agricultural operations to uncover cruelty to animals, food safety violations, or other malfeasance.  For the most part, courts have struck down these laws as infringing on the First Amendment.

On January 22, 2020, the United States District Court for the District of Kansas struck down most of Kansas’ ag-gag law as violative of the First Amendment.  This particular statute has been around since 1990, although there has never been any prosecution under it.


Continue Reading

On October 15, 2019, we blogged about the District Court’s decision to deny Tofurky a preliminary injunction against Missouri’s meatless meat statute. The statute itself purports to ban as misleading the use of words such as “meat” or “sausage” or “burger” to describe plant- or lab-based food products. It does not contain a safe harbor if the labeling or other advertising clearly discloses the plant- or lab-based origin of the product. Based on representations from the state department of agriculture that it would not refer any case for prosecution if the product had such disclosures, the District Court denied the injunction. Tofurky has appealed.

Continue Reading

On October 21, 2019, we blogged about the constitutional challenge to California’s Proposition 12, which prohibits the sale in California of eggs, pork or veal produced by animals not raised in accordance with California animal protection rights. As we explained, plaintiffs have moved for a preliminary injunction.
Continue Reading

We have blogged several times, most recently on October 15, 2019, about the so-called meatless meat statutes. These statutes attempt to protect producers of meat from competition from plant- or lab-based foods that are engineered to look and taste like real meat. The stated rationale is to prevent purveyors of meatless meat from misleading consumers. As is the case with many consumer protection statutes, the real objective is to protect competitors.

Continue Reading

Our latest blog post on this proposition was on January 17, 2019, which discussed the efforts of various states to challenge California’s ban on the sale of eggs, pork and veal that have not been raised according to California’s strict standards for animal protection. Those standards establish minimum space requirements considerably more generous than the industry standards. The ban originally applied only to California farmers, but they quickly realized that they would be at a substantial competitive disadvantage if the ban did not apply to such foods produced in other states. In 2010, the legislature extended the egg ban to all states.

Continue Reading

We last blogged about Tofurky’s challenge to Missouri’s meatless meat statute on September 16, 2019.  Settlement negotiations had broken down and the parties asked the District Court to address plaintiffs’ motion for preliminary injunction.  On September 30, 2019, the Court issued an order certifying a defendant class consisting of the prosecuting attorneys in each county in Missouri.  To our considerable surprise however, the Court denied the motion for preliminary injunction.
Continue Reading