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Nicole Civita, of Counsel to Foscolo & Handel PLLC

December 1, 2014

NCivita-Headshot-5x7

-by Nicole Civita

Upon their arrival in the United States, my great-grandparents began farming a piece of land in what is now New York City’s borough of Queens. Over the course of my grandfather’s life, American agriculture – and the way we relate to food – changed dramatically. As a child, he snuck eggs from the chicken coop and ate them immediately, unwashed and raw. He chased his escaped hogs down Metropolitan Avenue. He woke before the sun to tend a bevy of vegetable crops and fruit trees. As an adult, he continued to cultivate a small patch of land in our backyard, growing the most succulent tomatoes and plentiful pole beans I’ve ever encountered. In his final years, when his bones were too creaky for gardening, he grumbled loudly and often about the endless acres of soybeans surrounding his retirement village: “What’s all this for? And how are we supposed to feed ourselves?”

As a food lawyer, I ask those same questions – loudly and often. I consider it my calling to work on behalf of the intrepid individuals who are trying to change the face of modern farming, fix food, and nourish the next generations.

I am fortunate to be on the faculty of the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law, where I get to track the latest developments in food law and policy, analyze how the law shapes our food system, and push for a more equitable, just, and sustainable food future.  As the Director of the University of Arkansas’s newly formed Food Resiliency Initiative, I facilitate interdisciplinary analysis of food system challenges to assure that healthy, adequate food is available and accessible to all – and that farmers and food producers can do well by doing good. I also work with experts in diverse fields to propose full-scope, actionable policy solutions that support responsible, resilient, and just agrifood systems – those that are able to withstand both short term disruptions like market fluctuations and acute natural disasters, as well as long term challenges like climate change, population growth, biodiversity loss, and chronic disease. My work puts me right at the intersections between food and public health, conservation, disaster-preparedness, business and economics, land tenure, fair labor standards, community development and planning, sovereignty, and social justice.  It’s a gratifying place to work.

Today, I am excited to announce that I will be putting my food systems expertise into practice. By working of counsel with Foscolo & Handel PLLC, I look forward to providing concrete and strategic support to stakeholders throughout the food chain. I am eager to help my clients understand the network of legal authorities that frame their farming operations and food businesses. I offer a deep understanding of the individual and systemic challenges that farmers and food businesses face and aim to help my clients explore innovative, efficient solutions.

I couldn’t ask for better colleagues in this effort. Jason, Lauren, and Michele bring a dynamic balance of creativity and exactitude to the practice of law. I am grateful for the opportunity to collaborate with them and contribute to their work, which is both grounded and ground-breaking. Together, we can help you navigate the legal requirements and minimize the risks inherent in the important and delicious work of putting food on the table.

For legal services, reach me at: nicole@foodlawfirm.com / 917-572-8073

For information about the Food Recovery Project, Food Resiliency Initiative, or my academic work: nmcivita@uark.edu / 479-575-2456.

Road Trip Roundup: Farmer Veteran Coalition Events

November 21, 2014

Normal
I was in Normal, Illinois on November 13, 2014, speaking at the Local and Regional Food Summit. The event was sponsored by the Illinois Farm Bureau, the Illinois Department of Agriculture, and Heartland Community College.

I was there to announce the launch of a partnership between the Illinois Department of Agriculture and the Homegrown by Heroes marketing campaign. Homegrown by Heroes is a trademark that can be affixed to agricultural products grown by farmers who are veterans of the United States Armed Forces. The program is managed by the Farmer Veteran Coalition (FVC) of Davis, California.

Illinois became the very first state in the country to partner with FVC to help promote the mark through its state department of agriculture. Effective immediately, farmer veterans growing within the state of Illinois will qualify to use the Homegrown by Heroes logo in conjunction with the Illinois Product logo. This dual certification will give Illinois retail consumers two compelling reasons to purchase a farm product bearing the mark – it’s local and its veteran-grown.

Special thanks to Cynthia Haskins of Illinois Farm Bureau for the amazing effort to get FVC and Illinois Department of Agriculture together for this marketing program.

This firm created the legal framework for the Homegrown by Heroes program and the licensing required to manage it. I gave the presentation on behalf of the Farmer Veteran Coalition’s Michael O’Gorman, who could not attend due to his presence at FVC’s National Stakeholders Conference in Des Moines, Iowa.

Chaptering

Said Stakeholders Conference was my next destination after Illinois. With the help of Drake University Law School, who hosted the event, FVC brought together various groups from across the country working within the farmer-veteran movement. I was there in part to present the preliminary plans to create statewide chapters of the Farmer Veteran Coalition throughout the United States and its territories.

As a veteran, I get a particular satisfaction out of my involvement with FVC. I get to meet amazing people like Calvin Riggleman of Big Riggs Farm, Mickey Clayton of Dot Ranch, Chris Holman of Nami Moon Farms, and so many more. When I hear how hard these vets work, how much they love what they do, and the extent to which they experience farming as rehabilitative, I cannot help but be inspired by them.

Finally, I passed through Chicago-O’Hare Airport 3 times in 4 days, and each time I absorbed some free Vitamin D by the lights of the indoor edible garden by Gate G.

FDA Changes Produce Safety Regulations to Exempt More Small Farms

November 19, 2014

by Lauren Handel

In late September 2014, FDA issued revised versions of its proposed produce safety regulations under the Food Safety Modernization Act (FSMA). Of particular relevance to farms with small produce operations, the revisions significantly change which farms would be covered by or exempted from the rules.

As initially proposed, the Produce Safety Rule would have exempted any farm with total food sales of not more than $25,000 on average, per year during the previous three years. Thus, a farm with very small fruit and vegetable sales of $25,000 or less annually would not have qualified for the exemption if its combined annual sales of produce and all other foods (such as grains, dairy, meat or processed foods) exceeded $25,000. In response to criticisms that the rule would have served as a disincentive for diversification of farming operations, FDA has revised the exemption criteria so that only produce sales are counted toward the $25,000 limit.

Similarly, FDA has proposed to count only produce sales, rather than sales of all food, in determining whether a farm is a “small business” (defined as having average annual produce sales not exceeding $500,000) or “very small business” (defined as having average annual produce sales not exceeding $250,000). Under FDA’s proposal, small businesses and very small businesses will have three years and four years, respectively, to comply with the final Produce Safety Rule after it takes effect, whereas all other covered farms will have only two years to comply.

While these revisions make good sense, they do not go as far as some commenters had hoped in that all produce sales, and not just sales of “covered produce,” will be counted in the dollar limits. A covered farm is subject to the Produce Safety Rule’s requirements only with respect to its “covered produce” operations. Covered produce is, generally, fruits and vegetables that are likely to be consumed raw and that will not undergo a kill-step in processing. Thus, for example, a farm that sells less than $25,000 per year of leafy greens and tomatoes (covered produce) will have to comply with the Produce Safety Rule with respect to the greens and tomatoes if it also sells enough potatoes (not covered produce) to bring its total annual produce sales above $25,000.

FDA’s revisions also do not satisfy critics who argued that the eligibility criteria for the qualified exemption (known to many as the Tester-Hagan Amendment) should, likewise, be based on sales of produce or covered produce, rather than sales of all food. Under the Tester-Hagan Amendment, a farm is eligible for a conditional exemption from most requirements of the Produce Safety Rule if its total food sales are less than $500,000 on average, per year, and more than half of its food sales are directly to consumers and/or to restaurants or food retailers located in the same state or not more than 275 miles from the farm. While it would be logical to base eligibility for this qualified exemption on produce sales, rather than sales of all food, FDA cannot make that change unless Congress amends the FSMA statute.

FDA’s revisions also make significant changes to the Produce Safety Rule’s requirements for water quality testing, the use of raw manure soil amendments, and the process for withdrawing and reinstating a farm’s qualified exemption. As these rules will have an enormous impact on covered farms, it is critical that farmers understand what the regulations will require and participate in the rulemaking process. I encourage farmers to read the proposed Produce Safety Rule, as well as the revisions. Interested parties may submit comments on the revisions to FDA by December 15, 2014.

Food Law on the Road: Panel Discussions at the Local Food Association

November 18, 2014

Local Foods Association - Jason

Jason recently returned from a great event with the brand-new Local Food Association, held in Chicago, Illinois. The group is the first ever trade association for local and regional food businesses.

Jason was on two panels at the eventUnderstanding Legal and regulatory Considerations for your Local Food Business, and Building Transparency and Trust in Production and Sourcing Practices.

Our firm and the Local Food Association are now planning to host a course of two to three hours in duration, tentatively titled “Food Law for Food Business Executives.” Stay tuned for details.

Protein Politics: Vegetarian Meat Company Gets Booted From Canada

October 31, 2014

by Michele Simon

As a lawyer who has called out plenty of transgressions by unethical food companies, it’s frustrating when the law gets it wrong. That’s exactly what happened to the alternative meat company Field Roast, based in Seattle, but also selling products to our neighbors to the north. That is, until the Canadian government informed Field Roast that the company’s products were mislabeled. Not only that, the products also had to be tested — wait for it — on live animals.

Here is how Field Roast’s blog explains the situation:

The regulations rule that we are making a “simulated meat product” and need to add this language to our labels. The standards for a “simulated meat product” require a Protein Efficiency Ratio (PER) study (conducted using live animals) to evaluate the protein in relation to animal meats.

Let me get this straight: A company making an alternative to animal foods is supposed to test their products on live animals to prove the products are similar to animal foods? The company’s CEO David Lee explains his understandable dismay: “We’re driven to make these foods because we feel very strongly about having compassion for animals.” Hello. The Canadian Food Inspection Agency also wants Field Roast to add chemical supplements and vitamins for fortification, which Lee finds “offensive.” As he should.

grainmeatAnother irony is that the type of protein test results Canada requires does not currently exist because as Field Roast explains, they make a “protein-rich vegetarian sausage entirely from wheat, vegetables and real ingredients”, as opposed to soy or other more recognized proteins.

Apparently a “competitor” made a complaint, and that’s how this whole Kafkaesque episode got started. There is no safety issue here (current products can remain in stores until they run out), only a dumb regulation that sounds suspiciously like it was written by meat lobbyists. For example, a “simulated meat product” that resembles sausage must have “a total protein content of not less than 11 per cent” and  “a fat content of not more than 25 per cent”. Why are these foods being compared to meat for nutrition content? Who else would benefit from such laws other than an industry threatened by competing products?

This situation is a sad example of how an innovative company can get caught up in nonsensical regulations intended to benefit the status quo. This problem will only get worse with more alternative animal products going mainstream. For example, plant-based innovations such as egg-less “Just Mayo” from Hampton Creek arebecoming more popular. Large chains like Walmart, Target, Kroger, Safeway, Costco, and even Dollar Tree are signing deals to carry Just Mayo, according to TIME. With this level of success, innovation and regulation will inevitably collide. And run-ins with the powerful animal food industry will escalate. Right on cue, the American Egg Board launched a PR response to the “huge threat” Hampton Creek poses to Big Egg.

Field Roast says they are trying to work things out with the Canadian government, and let’s hope they do. Meanwhile, an unhappy Field Roast customer in Toronto has started a Change.org petition, in which he is asking (among other things) for his government to eliminate the testing requirement, as well as to allow companies to use common names such as “milk” and “meat” on vegetarian products. The issue of not being able to name alternative animal products what companies would like to is also a huge problem in the United States, and I will soon write more about that.

Yet another reminder that new and growing food companies should be engaging with food lawyers, at every stage of their development, to protect against these sorts of risks.

Food Labeling: Why Every Product Needs Attorney Label Review

October 27, 2014

by Jason Foscolo

Labels that do not comply with federal regulations are a significant source of legal liability for food businesses. Even established giants like Bumble Bee Foods fail to understand this from time to time.

Bumble Bee Omega 3

Going All-In on the Omega Claim

Bumble Bee is currently engaged in a lawsuit alleging that its canned and pouched tuna product labels were misbranded and mislead consumers. At the time when the lawsuit was filed, Bumble Bee claimed that its product was an “Excellent Source” of omega-3 fatty acids. As we know from having reviewed lots of labels for clients over the years, omega-3 claims are tricky to make on a food label.

Claims like “excellent source,” which characterize the level of a nutrient in a food, are always defined as a percentage of the daily value for the nutrient. An “excellent source” claim may be made when a food contains at least 20% of the recommended daily intake (RDI).  Therefore, if there is no established daily value for a nutrient, it is not permissible to claim that a food is “high in,” an “excellent source,” or “rich in” the nutrient. While the FDA has established RDIs for certain nutrients, including sodium, vitamin C, and fiber, there is no established RDI at present for omega-3 fatty acids generally. For that reason, Bumble Bee’s claim – regardless of the actual Omega-3 content of the product – was facially defective.

As discussed on our blog, FDA announced this past summer that it would not take exception to “high,” “good source,” and “more” claims specifically for ALA, an omega-3 fatty acid, in certain circumstances. However, all other claims that characterize the level of omega-3s are prohibited.

There is a way to talk about the omega-3 content of the product without the legal exposure. A manufacturer may make a statement about a nutrient for which there is no established daily value as long as the claim specifies only the amount of the nutrient per serving and does not implicitly characterize the level (such as, by saying “high” or “excellent source”) of the nutrient in the product. Such a claim might be “x grams of omega-3 fatty acids.”

This seems like a simple distinction to make but getting it wrong has big implications. No claim should ever go onto a food label without a thorough review from someone familiar with the regulations.

Making Sense of Seals of Approval

October 20, 2014

by Michele Simon

These days health-conscious consumers are increasingly seeking out food products not only with fewer ingredients and a “clean label”, but also foods produced in a manner that minimizes harm to the environment, among other ethical business practices. And it’s not enough to claim your product is healthy or sustainable with just words; to get that much-needed boost in a highly competitive marketplace, many food companies are spending the extra money to obtain third-party certification for various claims.

But before jumping on the “seal of approval” bandwagon, it’s important to understand the legal implications of various types of certification. For example, some seals are legally defined and require third-party certification while others are just voluntary.

Organic Seal: Federally Defined, Certification Required

Let’s start with the most rigorously-defined seal under federal law: organic. The U.S. Department of Agriculture requires strict adherence to various production practices for a farm or food product to obtain USDA organic certification. While the USDA itself does not certify, the agency maintains a list of approved third-parties. You must choose a certifier from this list to obtain organic approval.

USDA organic logoIn addition, USDA only allows its official organic seal for products that are either “100 percent organic” or for products containing 95 percent organic ingredients, in which case the product can be labeled simply “organic”. Also, the name of the third-party certifier must appear on the label. Products containing at least 70 percent organic ingredients can say, “made with organic ingredients”, but are not allowed to use the official USDA seal – an important distinction for marketing purposes.

Gluten-Free: Federally Defined, No Certification Required

Another popular claim being made on food products is “gluten-free.” Until recently, this claim had no legal definition. Then in August, the U.S. Food and Drug Administration began requiring food companies making gluten-free claims to adhere to specific federal regulations. However, in contrast to the USDA organic program, the FDA does not approve third parties for gluten-free certification, nor is certification required to make the gluten-free claim. Food companies are free to obtain gluten-free certification from a reliable third-party of their choosing, as long as that certifier uses the FDA definition at a minimum. (Some certifiers go further.)

Non-GMO: Not Legally Defined, Rapidly Changing

A good example of a seal program that is neither defined nor overseen by a government agency is the non-GMO label. Despite—or perhaps because of—recent controversy over genetically-engineered ingredients, the FDA has so far not required the labeling of foods containing GMOs. A significant response to this federal void in the wake of rising consumer demand has been an explosion of products on the market seeking to make “non-GMO” claims. The popular third-party certifier, the Non-GMO Project, claims to be “North America’s only independent verification for products made according to best practices for GMO avoidance.”

With several states (see the list here) already enacting GMO labeling bills and more being considered, along with ongoing litigation over “natural” labels on products containing GMO ingredients, pressure on the feds to act is mounting. In other words, this issue continues to be legally volatile. Also, remember that even though the federal government has not expressly defined “non-GMO”, such claims (along with any advertising) must still meet general federal rules to be truthful and non-misleading.

Additional certification programs cover kosher, vegan, and labor practices. I also recently wrote about “benefit corporations”. Some states allow a corporation to include ethical business practices in its legal charter. Companies can also obtain a related private certification by becoming a “B Corp”, and use that symbol as a marketing tool.

However you want to stand out in the marketplace with a seal of approval, it’s important to choose only legally-defensible claims and reliable third-party certifiers that adhere to current federal and state laws, as well as best marketing practices.

(This article has also been published at circleup.com)

Why you should fear competitors more than the feds

October 16, 2014

by Michele Simon

With far too much to regulate and too few resources, the U.S. Food and Drug Administration has to be selective in enforcing deceptive marketing laws. Similarly, the Federal Trade Commission, which oversees all advertising, can’t police everybody. But while the feds have better things to do than troll the supermarket aisles looking for the latest dubious health claim, that doesn’t mean food marketers can get sloppy.

Midland-Ross-Water-1

“Really, it’s just water, guys.”

That point was brought home recently when the National Advertising Division announced it was referring Talking Rain Beverage Company to the FTC for making deceptive claims. If you’ve never heard of the NAD, you should. Part of the Council of Better Business Bureaus, it’s a self-regulatory body for advertising oversight. Competitors or consumers can file a complaint. The idea is to provide advertisers an alternative to litigation and government action.

In this case, a complaint was filed by a pretty big competitor: Nestle Waters North America. The king of bottled water complained about several claims made by Talking Rain’s “Sparkling ICE” drink that implied the product was just water, including its description as “Naturally Flavored Sparkling Mountain Spring Water.” Although it ruled in July that consumers were not likely to be misled by these words, NAD was not happy about several of the drink’s tag lines, including “the bold side of water,” given that the product is not just water. In September, NAD “determined that calling the products a ‘… side of water’ could be reasonably understood by consumers to mean that the products are water, when in fact they contain numerous additives and sweeteners.”

The self-regulatory system works best when companies agree to participate. In this case, Talking Rain refused, and that’s why NAD referred the case to FTC. The beverage company is taking its chances that FTC is too busy to act, but the agency does occasionally go after the natural product industry. For example, FTC recently settled a $3.5 million case against a coffee bean extract maker over questionable weight loss claims. The National Advertising Division also works in collaboration with the Council for Responsible Nutrition to police the supplement industry, as another recent adverse action, this time against “Cerebral Success” regarding questionable performance claims, demonstrates.

While some smaller companies may be able to avoid federal oversight, beware that your competitors are watching closely. A company the size of Nestle has plenty of resources to keep watch and file claims that threaten their competitive edge. That’s why all companies should market responsibly; you could be targeted next.

Is a new organization to define “natural” a good idea?

October 7, 2014

by Michele Simon

A new organization that’s yet to even formally announce itself made news for declaring its intention to define natural. The new group, called the Organic and Natural Health Association (ONHA), plans to hold a series of meetings as part of a transparent process that engages consumers as well as industry.

At a time when more shoppers than ever are seeking healthier products, the natural products industry is coming under increasing pressure to define the squishy term. No wonder, with so many food companies jumping on the “all natural” bandwagon, sometimes for products that bear little resemblance to anything found in nature, leaving many consumers confused and often duped.

Meanwhile the Food and Drug Administration has made it painfully clear it has no intention of defining natural, and given the undue political influence in Washington, that’s probably a good thing.

As I wrote about for New Hope Natural Media last year, in the wake of FDA inaction, class action lawyers have been filing lawsuits against food companies that use the natural label in a deceptive manner. Whatever you might think of this approach, in some cases it has forced manufacturers to do the right thing. For example, as a result of being sued over GMO ingredients in its “all natural” cereals and snacks, Barbara’s Bakery is now obtaining third party verification from the Non-GMO Project.

But litigation is not a long-term solution to an industrywide problem. So maybe the time has come for someone to step up?

I recently spoke to Karen Howard, the new group’s director, who explained that ONHA’s structure is unique in that it includes representation from both industry and consumers, and that the mission is much larger than just defining natural. The group will set standards for natural certification in four sectors: food, pet food, supplements and cosmetics, in just 90 days from its first open meeting at the Supply Side West trade show in October. When I asked Howard about undercutting organic standards, she told me the group is “100 percent committed to organic” and that the natural certification will complement organic, not replace it.

Still, many questions remain, such as how will this intersect with existing guidelines, such as those from Whole Foods Market or New Hope’s standards department? And will this new certification process truly educate consumers or will yet another seal on a box just add to the confusion? Also, will companies even participate? If they don’t, lawsuits are likely to continue to fill the void.

MARKET|SHARE EXCLUSIVE INTERVIEW: JASON FOSCOLO, THE FOOD LAW FIRM

September 18, 2014

The Food Law Firm was recently interviewed by The Local Food Association (LFA), a national trade association for those engaged in the business of local food. LFA works to increase market access and market share for both sellers and buyers of local food across the United States. We are honored to have been included and look forward to working together.