Uncategorized Archive

New Labeling Requirements under the Affordable Care Act

March 17, 2014

-by Gabriella Agostinelli

Under the 2010 Patient Protection & Affordable Care Act (ACA), the Food & Drug Administration (FDA) became responsible for issuing new rules regarding nutrition labeling in retail food establishments and vending machines.

Section 4205 of the ACA requires “restaurants or similar retail food establishments” with twenty or more locations to provide clear labeling of the calorie counts of their standard menu items. A business qualifies as a “restaurant or similar retail food establishment” when it sells restaurant-type food and its primary business activity is the sale of food to consumers. All affected businesses are required to display a statement of daily recommended calorie consumption as well as written nutrition information when requested – listing the calories, fat, cholesterol, sodium, carbohydrates, sugars, fiber, and protein amounts.

Section 4205 also calls for similar requirements to be enacted for vending machines when the owner operates 20 or more machines.

Mobile Vending

No longer compliant

 

While the ACA mandated the FDA to issue labeling implementation rules by March 2011, no such final rule has been created. FDA Commissioner Margaret Hamburg recently stated that writing a new menu labeling law “has gotten extremely thorny” due in large part to strong lobbying by supermarkets, convenience stores and other retailers that sell prepared food.  In theory, new labeling requirements could affect thousands of items in each supermarket – including prepared foods, cut fruit, bakery items and other store items that aren’t already packaged and labeled. If that were the case, each store would likely be required to send each of those items out to be lab-tested, do paperwork to justify the ingredient and nutritional information for each item to the FDA, and then create new labels and train employees to use them.

In sum, compliance costs are coming for restaurant groups and vending machine owners, but we don’t know when. Stay tuned.

Why I Am a Food Lawyer

February 27, 2014

by Lauren Handel

LaurenEarlier this week, we announced the launch of this firm and Jason had very kind things to say about me. I too would like to take the opportunity to express how proud and fortunate I feel to be working with Jason as co-owners of the Food Law Firm. Jason had the vision and guts to create a law practice focused on serving independent food and farming businesses. He inspired me to become a food lawyer, and for that I am so grateful.

When I first met Jason, I had been working for 10 years at a very large law firm doing mostly product liability and environmental litigation. Although there were many things about that job that I liked, it was not personally rewarding work, and I knew I had to leave. The only problem was I had no idea what else I would do. My biggest passion was food, but I was not sure I could turn that into a career. When I heard about Jason’s law practice, that was the moment the light bulb went off in my head. For the first time, I realized that I could use my skills and the things I loved most about being a lawyer – problem solving and advocating for clients – to help ensure the success of good food businesses.

Now that Jason and I have begun this law practice, I have my dream job. Every day, we get to help people who produce and sell excellent food and beverages. Our clients are creative and care deeply not only about quality, but also about integrity. We, likewise, aim to be an innovative, different kind of law firm — one that delivers quality legal services, but also shares our clients’ values and cares about their success. Like so many of our clients, we are just starting our business. I look forward to seeing how we grow together.

Foscolo & Handel PLLC, The Food Law Firm

February 24, 2014

by Jason Foscolo

JasonIt is with great pride that I publicly announce the launch of Foscolo & Handel PLLC, a new law practice dedicated to servicing the legal needs of farmers and food entrepreneurs. Earlier this year, Lauren Handel and I officially teamed up to combine our skills, experience, and resources for the benefit of our rapidly growing base of clients. Foscolo & Handel PLLC can now offer the community of food entrepreneurs more services, such as litigation, and with greater flexibility and availability than ever before.

I am particularly excited to be working alongside an attorney of Lauren’s caliber. Her incredible dedication to the burgeoning field of food law is truly inspirational. After 10 years at a prestigious “BigLaw” firm in New York and Washington, D.C., she chose to reorient her professional life to help support the kinds of clients that matter to her personally, those in the food industry. Her professionalism, commitment to her new clients, and her remarkable passion for food law inspire me to be a better attorney every day that we work together. The knowledge and experience she brings to this partnership will prove to be invaluable assets to our clients.

I’d also like to take this opportunity to thank our clients and colleagues, whose support and trust in our unique legal expertise has sustained the rapid growth of this firm since its founding in 2011. Their continuing commitment to our firm is a testament to the usefulness of food law to their businesses.

Foscolo & Handel PLLC, the full service, general practice Food Law Firm, is now officially open for business.

“Sell-by” Labeling: A Possible New Burden for Food Businesses

October 31, 2013

If you are a food producer, a new labeling requirement could be headed your way.

Last month, a Harvard Law/Natural Resources Defense Counsel joint study discovered that misinterpretation of dates printed on packaged foods is a significant contributor to national food waste.  Shockingly, confusion over terms like “sell-by” and “best before” cause Americans to waste 160 billion pounds of food each year, costing the average family of four between $1365 and $2275 annually. The study recommended a series of actions to improve our food waste problem, including making sell-by dates invisible to consumers, developing a uniform consumer-facing date-labeling system to avoid misinterpretation of a food’s freshness, and increasing the use of safe-handling instructions on date labels.

Manufacturers often determine freshness dates (i.e. sell-by, best by, and expiration dates) through shelf-life testing. This can be done by testing and monitoring a product over its actual shelf-life, which can take several years for very stable products, or through accelerated shelf-life testing, where food is stored and studied in test-abuse conditions of differing temperature and humidity levels. For now, the use of shelf-life testing is “almost entirely optional” and is often avoided due to its high costs. The Harvard/NRDC study, however, advises that manufacturers using label dates should be required, “where practical,” to engage in quantitative shelf-life testing to determine appropriate dates.  If this or other similar studies inspire stricter date-labeling regulations, food manufacturers could become obligated to employ shelf-life testing, perhaps to their financial detriment.

Information is a great thing to give a consumer, but it will come with a cost.  Compliance with existing labeling laws is already financially and logistically challenging. Manufacturers are already required to:

  • Structure a label in accordance with FDA guidelines, which are so specific they indicate the appropriate font sizes to be use on different portions of the label.
  • Understand how to articulate nutrient content claims like “low-fact”, “high in Omega-3”, and “sugar-free.
  • Determine the presence of and properly list 8 major allergens on their labels;
  • Analyze the nutrition content of their foods, then properly state it on their Nutrition Facts Panel.
  • Keep abreast of changes in regulation to marketing claims like  “gluten-free” or “all-natural”.
  • Understand the various types of health claims that can be made on products and the varying levels of scientific substantiation needed for each one.

Preventing food waste is a noble goal, but it will be an additional burden for those new to the marketplace. With every aspect of a food label already controlled by federal regulation, adding another compliance requirement would disproportionately burden the small producer in particular.

Book Review: Food Law Lessons from “The Telling Room”

September 4, 2013

– by Lauren Handel

We don’t normally do book reviews, but I felt compelled to write about Michael Paterniti’s “The Telling Room: A Tale of Love, Betrayal, Revenge, and World’s Greatest Piece of Cheese” (Dial Press 2013) because, in a way, this book explains why the Food Law Firm exists. The book tells the story behind an artisanal sheep’s milk cheese called Parámo de Guzmán. It is a story about food traditions and culture, personal shortcomings, relationships, and storytelling itself. It also is a story about the importance of good legal counsel to the success of a food business.

This is where the cheese magic happens

This is where the cheese magic happens

The author travels to the tiny village of Guzmán in the Castile region of Spain where he meets the cheese’s creator, Ambrosio Molinos. Molinos is the Slow Food movement personified. He is a farmer with a deep passion for the land and the food and wine it produces. He created the cheese to revive a family tradition and put his heart and soul into making it absolutely sublime. When Molinos began selling the cheese, it was a tremendous success.

Until things went bad. As the business grew, it became necessary to bring in investors. Molinos signed contracts he apparently did not understand. The business was mismanaged and, eventually, was drowning in debt. When the investors wanted to sell, Molinos discovered that he had given them majority control and could do nothing to stop them. He lost the business, all of his family’s money and farmland, and was left personally liable for millions of dollars of the business’s debt. Sadly, the world also lost his fabulous cheese as the new owners of Parámo de Guzmán did not adhere to Molinos’s quality standards.

So what does this story have to do with our law firm? As I read the book, I could not help but think that the tragedy could have been avoided if Molinos had sound legal advice and representation from the beginning. I found myself wishing that I had a chance to review the investors’ contracts before Molinos signed them, to negotiate on his behalf, and to secure his intellectual property rights in his cheese. It occurred to me that Jason and I do what we do precisely because there are people like Ambrosio Molinos who make extraordinary cheese, but don’t have the inclination or time to learn the law.

We decided to focus our law practice on food and farming businesses because we want to see the Ambrosios of the world succeed. Practically nothing makes us happier than good food (our families and friends make us pretty happy too). We also believe that the sustainable production of top-quality food makes the world a better place. As The Telling Room shows, though, sustainability involves more than environmental stewardship; it also requires food and farming businesses to be financially stable and legally secure. Our firm exists to provide our clients with the stable legal footing they need, not only to sustain their businesses, but to thrive.

The Evolution of “Ag Gag” Laws

June 14, 2013

–by Gabriella Agostinelli

Last February, animal rights activist Amy Meyer was arrested outside a Utah slaughterhouse after she was caught filming activities at the location. The charge? Agricultural Operation Interference, a class B misdemeanor. Police accused Amy of breaking Utah’s new law that criminalizes the recording of agricultural operations while trespassing or entering a premise under false pretenses. Utah Code 76-6-112. Amy maintained she never left public property to film, causing an inflammatory reaction among Americans: have we met the day where we are robbed of our First Amendment freedoms even on public property?

In short, no. A plain reading of § 76-6-112 shows the law only targets recordings made on private property. Luckily for Amy, prosecutors dropped the charge against her for lack of evidence she had actually entered private property during her filming.

Regardless, Amy’s was a cornerstone case as she became the first Utahan poised to be prosecuted under such a law. Highly criticized for their propensity to stifle First Amendment freedoms, these laws are more colloquially known as “ag-gag” laws, or “anti-whistleblower” laws.

In the early 1990s, three states (Kansas, Montana, and North Dakota) passed laws banning unauthorized filming at farms/factories in an effort to prevent damage to these facilities and their reputations after animal-rights break-ins. See Kan. Stat. Ann. § 47-1827(c)(4); Mont. Code Ann. § 81-30-103(2)(e); N.D. Cent. Code § 12.1-21.1-02(7). About 28 states also have “animal enterprise interference” statutes that target the entering of an animal facility to commit unauthorized acts (trespass, damage) or for committing fraud on a job application. They do not, however, specifically target undercover investigators and the use of recording devices, like those used to film the scandalous footage that appears on episodes of 20/20 or Dateline. Some of these 28 are codified criminally while others are civil in nature.

In 2012, Utah and Iowa passed more rigorous laws specifically written with undercover investigations in mind. Essentially, these laws criminalize entry into a private farm or factory under false pretenses with intent to proliferate what is witnessed inside. While Iowa’s law does not specifically mention the use of recording devices, its legislative history does hint towards this reality.

Opponents of ag-gag laws see the measures as attempts to silence whistleblowers who discover animals being abused in farms or sick animals being processed for food. Proponents of ag-gag laws advocate that they are necessary to protect farmers and food processors from “baseless allegations or misrepresentation” as to what occurs on the premise.

While the debate rages on as to whether these laws are truly constitutional, one thing remains certain: these laws do not, and cannot, influence the public’s behavior on public land. Nobody can make you avert your eyes, or your cameras, from what we may witness from the street. Though ag gag laws are creeping towards more comprehensive restrictions, we’re not at the point where they can be considered oppressive.

On the Road Again

March 22, 2013

I’ll be on the road for some back-to-back speaking engagements for the next week or so. If you live in the Northeast, chances are I will be in your area:

  • New England Meat Conference, Concord New Hampshire, Saturday March 23. Crisis Management: Prevention and managing the Fallout. (I’ll also be attending the legendary Meat Ball).
  • The Farm – to – Market Connection, Liberty NY, Sunday March 24. Hiring On-Farm Labor. (No Meat Ball, but plenty of good stuff to eat in Liberty, NY).
  • Fare Trade NYC, Brooklyn, NY, Tuesday March 26, Trademark Workshop – Filing Your Trademark Like a Pro.
  • Just Foods Conference, New York, NY, Friday March 29, Food Law for Start-ups: What new Food Businesses Need to Know. (I was told that this workshop had the highest pre-registration count for the year. Imma star.)

How to Make a Farmer’s Market: The Legal Structure Behind Local Food

December 10, 2012

This week’s series on legal structures for farmers markets was contributed by Erin Kee, Esq. Erin is an Agricultural and Food Law LL.M. candidate at the University of Arkansas School of Law. Erin graduated from the University of South Carolina Law School where she studied environmental and agricultural law. She has worked at the South Carolina Department of Agriculture where she focused on developing a sustainable food system for South Carolina. She has also worked at Rural Vermont, a farm advocacy organization, representing the interests of family farms and rural communities. Erin is passionate about eating locally, trying new recipes, and pickling okra.

Farmers markets are gaining influence as effective business models for the local food movement. The number of markets is steadily growing in the United States as more people become personally invested in the process of getting food from the farm to their plate. The number of markets in the US has doubled in the last ten years from 3,137 markets in 2002 to 7,864 markets this year. They’ve become popular with customers for a variety of social and economic reasons. A market allows the customer to interact with the farmer and develop a valuable and increasingly relevant personal relationship. When shopping from a market the customer begins to know who has the best squash and zucchini and which farmers will allow you to sample the goods before you buy. These relationships also provide opportunities to visit the farm and get a firsthand look at the amount of labor required to produce a crop. Buying directly from the farmer means that the customer has access to fresh, seasonal produce and the ability to ask questions and understand how their vegetables are grown and their meat produced. Finally, people enjoy the community aspect; visiting the market allows them to catch up with friends and neighbors that they might not normally get to see during the busy workweek. All of these attributes amount to an increasing desire for people to forge a deeper connection with their food and with the people that make it.

This trend towards greater intimacy with agriculture shows no sign of abating, and is an excellent reason for farmers to organize even more markets in the future. Farmers markets are the ideal way to deliver both the good food and the emotional satisfaction consumers get when the form stronger bonds with the agricultural community. This week’s series will talk about the different legal structures that farmers and market organizers can use to regulate the relationships and obligations related to operating a farmer’s market.

To frame this week’s discussion, it is best to think about what the purpose of a market structure is in the first place. Think of a farmers market as a business. As a distinct entity, a farmers market creates economic opportunities and efficiencies that very few individual farmers could afford to provide on their own. Market organizers assume a duty to provide farmers with direct access to a specific type of conscientious consumer, increase farm revenue by eliminating packing and shipping costs, create customer loyalty and community engagement in agriculture, and are responsible for conducting all the logistics of setting up the market space, permitting, and parking issues which allow customers to enjoy their shopping experience.

Thus, there are also objective criteria by which a market operator can be judged. A market can only justify its expense if it performs well, by drawing customers, facilitating city permits, or by performing public relations and marketing functions on behalf of its farmer members.

All of these attributes of farmers markets add value to any farming operation if performed diligently. They also confer a series of obligations onto market management – time, money, effort, and stress must be expended in order to set up and run a market of any size. There are a variety of legal structures that market organizers can use to both create value for farmers and execute the duties of organization.

This series discusses the different legal structures that market organizers can use to create well-run markets and to deliver services to farmers in efficient ways. Over the next week I will discuss three legal arrangements designed to increase the value of farmers markets. Tomorrow, I’ll be going in-depth on the non-profit structure used by most markets in the United States, an economical and financially equitable means to deliver markets services to the agricultural community.

–by Erin Kee

Links from the Road

December 2, 2012

I’ll be on the road this week attending the Carolina Meat Conference, so blogging may be intermittent. In the meantime check out this New Yorker article on the Wolvesmouth, an L.A. underground supper club run by Chef Craig Thornton.

FDA Shutdown of Peanut Sundland Butter Processing Plan

November 29, 2012

So everyone is going bananas today about the FDA shutdown of the Sundland peanut butter processing plant. This is the first time the FDA has used its new plenary powers granted to it by the Food Safety Modernization Act to shut down food production of a US facility. Big food law news, indeed, for anyone concerned about food safety and federal food policy.

But the HuffPo piece glosses right over my favorite part the story. Here’s the quote that should send every food processor running to the file cabinet where they keep their insurance liability agreement:

The Food and Drug Administration suspended Sunland Inc.’s registration as a food facility on Monday, two months after issuing a recall on 240 products containing Sunland’s organic peanut butter, which has sickened at least 41 people with salmonella.

Sundland didn’t just make spreadable peanut butter for the jar. Food processors and manufacturers apparently bought bulk peanut butter from Sundland to add to their own products – cracker sandwiches, cookies, peanut butter filled pretzels, and so forth. For these independent companies, Sundland was a supplier of a key input for their products that ultimately tainted what were otherwise pristine products.

Food processors have to always think defensively when purchasing their inputs, especially when those inputs are not heat sterilized like peanut butter. I am almost certain that a great many of the products in that “240″ number were not covered by product recall insurance, every one of which went right into the landfill.  I am also sure several of food processors had no indemnification agreement with Sundland to get remunerated for losses incurred due to its peanut butter. Those two risk management gaps are sufficient to put any small to medium sized food processor into the red if they are not managed properly.