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Food Labeling Archive

Upcoming events

October 19, 2016

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Jason Foscolo, principal food law attorney at The Food Law Firm, will lead workshops and join panel discussions at Pace Law School,  Cornell Cooperative Extension Sullivan County, and Arcadia Center for Sustainable Food and Agriculture.

Elisabeth Haub School of Law at Pace University will host a panel discussion on the career of food law for anyone interested in the field.

At Catskills Farm and Food Conference, Cornell Cooperative Sullivan County, food business entrepreneurs, and community members near and far will have the unique opportunity to learn proven strategies to help them add value to farm products. Jason will lead a special workshop on FDA compliant food labeling, designed to empower the DIY food business entrepreneur. There is still an opportunity to register for this. Don’t miss out!

Arcadia’s Veteran Farmer Program is a multilayered, hands-on educational program that develops new farmers; capitalizes on the growing market in local, sustainably grown foods; and encourages entrepreneurship and job creation. This robust program helps pay veterans to learn how to farm, helps them find affordable land, provides easy market access for the food they produce to satisfy public demand, and reinvigorates the farm sector with skilled new growers, eager to begin their next phase of life. In keeping with the objectives of the program, Jason will be leading a workshop on the comprehensive legal risks of farm businesses.

Lab Grown Meat

August 3, 2016

MeatWe will probably be eating lab-grown meat one day soon. So long as it can withstand a few hours in the smoker, we approve. But at the risk of spoiling a good thing with legality, what are we going to call it? FDA and USDA regulate the words we use for various foods, and there are established definitions for meat and poultry. 9 C.F.R. 381.1 defines poultry as “any domesticated bird”, and a “poultry product” as anything derived from a poultry carcass. Red meat is “the part of the muscle of any cattle, sheep, swine, or goats which is skeletal”.

What are your thoughts on how we shall define lab-grown meat?

THE MID-HUDSON VALLEY FOOD PROCESSING CONFERENCE: FROM FARM TO FACTORY

June 14, 2016

china_630_0Join us on June 17th, 2016 at 8:30 am – 12:00 pm at the Newburgh Armory Unity Center. Hosted by The Accelerator, powered by the Orange County IDA. 

The conference is open to growers, food manufacturers, equipment suppliers, distributors, regulators and academia. The event will focus on challenges facing the food manufacturing sector with a keynote focus on new food safety regulations and process techniques. A thought-provoking panel discussion will be held with industry leaders from prominent Mid-Hudson Valley food manufacturers. There will be networking opportunities before and after the program. The event is free, but registration is required.

To register, visitwww.mhvfoodprocessingconf.eventbrite.com

To learn more, contact Melanie Schouten at 845-234-4449.

Upcoming Workshop: The Laws of Food Labeling

May 2, 2016

13055309_884508631675199_3177999319141321911_nThe Laws of Food Labeling: The Devil Is the Details

A free ‘happy hour’-style workshop co-sponsored by HVADC and The Food Law Firm Wednesday, May 18 6pm-8pm, Elmendorph Inn, Red Hook, NY

Hudson Valley Agribusiness Development Corporation (HVADC) and Jason Foscolo of The Food Law Firm are partnering to present a free workshop on Food Labeling Laws for farmers, food industry entrepreneurs, and consumers.

About the Workshop:

The area encompassing a food label is one of the most regulated spaces in the food business. For food manufacturers, complying with these rules is the key to accessing lucrative markets. For consumers, understanding the rules is essential to eating right. In this workshop, Jason Foscolo will discuss food labeling as mandated by FDA regulations. Topics covered will include:

  • The basic layout of a label and label layout.
  • How product claims can be made, such as “high fiber” or “low sodium”.
  • How health claims about products are made, such as “consuming this product can lower yourincidence of coronary heart disease”.
  • Publicly available resources that can help food manufacturers comply with the regulations, aswell as inform consumers about what they are buying and eating.

    This is an arcane subject, but it will be made accessible by Jason. The ideal audience for this workshop is broad: food manufactures with packaged food products, consumers seeking to make better decisions about what they eat, or even graphic designers who want to get into food packaging and design.

    Workshop Details:

    The workshop is FREE and open to the public.
    Date: May 18, 2016
    Location: Elmendorph Inn, 7562 Route 9, Red Hook, NY 12571
    Time: 6pm-8pm (with time for questions and networking)
    Local bites from Daughters Fare and Ale and beer from Sloop Brewery will be provided.
    Pre-registration is REQUIRED.
    Please contact Iyla Shornstein at ishornstein@hvadc.org or 518-432-5360 x 303 to register.

    About Jason Foscolo:

    Jason has been advising clients in the food industry for 5 years. He’s an attorney with his own private practice and he’s chosen to only work with food businesses. He’s a recent transplant to the Hudson Valley. (He moved here for the food.)

    About HVADC:

    The Hudson Valley Agribusiness Development Corporation (HVADC) is the only economic development agency in the Hudson Valley with a specific focus on the viability of the agricultural economy in the region. HVADC’s charge is to enhance the agricultural sector in the Hudson Valley by assisting both new and existing agri-businesses, and supporting policies and regulations that recognize and support New York State’s agricultural economy.

U.S. House Passes Bill to Ease Calorie-Labeling Regulations

February 18, 2016

mcdonalds-nutrition-factsEater has a story with insights from Lauren Handel on legislation to change the restaurant menu labeling requirements.

Food Law and Policy Weekly Review, February 23 -27

February 27, 2015

 

  • news-boy1There is a fantastic article in Inc.com on the rise of GT’s Kombucha, the company credited with creating the kombucha product category we know today. They hit a few legal snags along the way, which we will discuss in a blog post next week, but otherwise it’s an inspiring story of a bootstrapped, profitable,  privately and closely held company with a dominant market share.
  • Farmanddairy.com describes the regulatory challenges faced by  nonprofit seed libraries, where farmers, gardeners, and growers can exchange self-pollinating seeds rather than buy them from the catalogue or the hardware store. Laws in several states make no distinction between these small, informal groups and larger commercial seed companies – both are regulated as seed distributors and must comply with inspection and labeling requirements.
  • A California lawmaker is considering a law to include warning labels on soft drinks. The label will state: “contributes to obesity, diabetes, and tooth decay.”
  • KVNO News does a really good job of explaining why Country of Origin Labeling (COOL) is so important for farmers and ranchers. As you might know, in October the World Trade Organization determined that US COOL labeling constituted an unfair restrain on world trade. COOL is important to US farmers, who understand that that consumers will have a natural bias for meat raised domestically. COOL is less important to meat packers, who prefer to fill their orders with meat produced as cheaply and efficiently as possible, no matter where it is raised. Read the whole thing.
  • Fun fact: AMTRAK’s food and beverage service lost an average of $87 Million in the years between 2006 and 2012. A bill before the House will require AMTRAK to eliminate the operating loss within 5 years.
  • Agriview covers the story of a farmer who fled falling prices for commodity milk and started producing artisanal cheeses for the direct market.
  • NPR delves once again into immigration status and farm labor. One farmer interviewed for the piece tacitly admits that he prefers to have the immigration status of his workers remain indeterminate. Farming, he says, is an industry where illegal immigrants can work and remain off of the radar. If they were to become legal, “that pressure is off. Now they can go to the cities and look for construction jobs, or manufacturing jobs” and thus create acute employment problem for him. That’s admirably candid of him, but unfortunate for the laborer.
  • Michele writes about our declining appetite for red meat and the factors leading to our decreasing consumption in Al Jazeera America.
  • Finally, an extended read for the weekend fireside. Washingtonian writes about the spectacular implosion of Serendipity 3 in 2014. It all started with a bad partnership agreement, then some stuff got broken and everybody got mad and someone almost went to jail but then no one ate ice cream anymore and it was sad.

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.