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

Starting in 2024, U.S. consumers are going to start seeing new formulations of yogurt on supermarket shelves. The U.S. Food and Drug Administration (FDA) has released an amended standard of identity for yogurt as part of its Nutrition Innovation Strategy. According to the FDA, the new, modernized standard of identity for yogurt allows for greater innovation and technical advances in yogurt production while maintaining yogurt’s basic nature and essential characteristics. Continue Reading FDA Amends Yogurt Standard of Identity

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 if the higher rate is not accepted the cargo will not move.

For more information, please read the article here.

Recently, President Biden signed the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law adds sesame to the list of major allergens, requiring its disclosure on food labels as an allergen.  Food manufacturers have until January 1, 2023 to add sesame allergen statements to their labels.

Current food labeling regulation allows sesame to be declared as a “natural flavor” or “natural spice.”  This creates uncertainty for consumers allergic to sesame when they review product labels at their local grocery stores. Continue Reading Foods Soon to Bear Sesame Allergen Labels

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