This regular publication by DLA Piper lawyers focuses on helping clients navigate the ever-changing business, legal and regulatory landscape.

  • FDA announces new steps to ensure compliance with menu disclosure rule.On August 13, the FDA issued a fact sheet that outlines its current steps toward the implementation of its rule requiring restaurants to disclose calorie counts and other nutrition information on their menus. The agency pointed out that Americans consume one-third of their calories away from home. The FDA said that its goal is to achieve compliance by the food industry and that it will try to achieve this goal in a flexible way. Among the steps it plans to take are providing support for industry implementation activities, assessing industry compliance by a number of measures, and working with state and local governments that have imposed similar disclosure requirements. Previously, the FDA had been focusing almost exclusively on efforts to educate industry members concerning the requirements of the rule.
  • FDA issues its first warning letter under foreign supplier verification requirements. The FDA, on July 30, issued the first-ever warning letter to an importer for failure to follow the Foreign Supplier Verification Program (FSVP) food safety rule. The letter was sent to Avi Snati, the owner of Brodt Zenatti Holdings LLC, and was posted for public view on August 13. The company is an importer of tahini that was linked earlier this year to Salmonella contamination. The FSVP requirements under the Food Safety Modernization Act require importers to take significant steps to verify that the food that they bring into the United States has been produced in a manner that meets US food safety standards.
  • Nonprofit groups push forward in lawsuit on school meal nutrition standards. On August 2, the Center for Science in the Public Interest, joined by Healthy School Food Maryland, filed a motion for summary judgment in a case that asserts the Trump Administration unlawfully rolled back nationwide nutrition standards for school meals. "Today's filing asserts that the U.S. Department of Agriculture (USDA) violated the law by weakening school meal nutrition standards that had previously required decreased sodium levels and increased the amount of whole grains to be served in school meals. The new weakened standards put approximately 30 million children, including approximately 22 million low-income children, at greater risk of health issues associated with diets high in sodium and low in whole grains," the nonprofit groups said. The lawsuit is pending in the US District Court for the District of Maryland.
  • Seattle City Council overrides mayor's veto, tells city how to spend soda-tax revenues. On August 13, the Seattle City Council voted 6-3 to override Mayor Jenny Durkan's veto of a bill that would create a dedicated fund to collect the money raised from the city's beverage tax and then allocate it for specific purposes, rather than for general funding of the city budget. Seattle's beverage tax raised a whopping $22 million in 2018, considerably more than expected. Mayor Durkan directed $6.3 million of that into the city's general funds. The new law provides that the soda-tax revenue must be spent only to add and expand healthful-food, education and early-childhood programs - purposes that were specified when the soda tax was passed - separate from whatever baseline money these programs may receive from the city's general fund. Mayor Durkan had vetoed the bill in late July; a mayoral veto is rarely overridden in Seattle.
  • Craft breweries argue in court for more regulation of water. Beer can be up to 90 percent water, and many of the nation's craft breweries are concerned that weakening the protections of the Clean Water Act may have a negative impact on the quality of their products. NBC News reported on August 2 that 60 craft brewers recently filed an amicus curiae brief in a case that challenges the Trump Administration's efforts to deregulate the environmental protections of that law. "The cleanliness and flavor profile of the water is really at the heart of making great beer," said a Maine craft brewer. "We need to protect our water and make sure we have access to clean water to make great beer here in Maine and across the country." The case before the Court, County of Maui v. Hawaii Wildlife Fund, asserts that the Clean Water Act applies to pollution that moves through groundwater before reaching a federally regulated waterway. It is considered one of the Court's most important environmental cases in years.
  • Beverage industry turns to state legislatures to quash local soda taxes. On August 13, Politico magazine reported that the beverage industry, in a new and apparently successful strategy to combat the efforts by many localities to impose taxes on sugary beverages, is lobbying state legislatures with the intention of bringing about a statewide ban on such taxes. Legislatures in Arizona and Michigan have already passed state laws prohibiting local soda taxes under the legal doctrine of preemption as a result of these efforts. In Washington state, the industry backed a voter initiative barring local soda taxes; this measure passed in 2018. Even in the very liberal state of California, the industry successfully lobbied for a statewide ban on new soda taxes until 2030. As a result, the only cities that will be able to maintain such taxes in California are cities like Berkeley, which have already imposed them. "Although the liberal leadership of American cities might be a hard nut for a pro-business lobby to crack, state legislators are often far more friendly to business, and they often have the power to overrule city laws,"; the article concluded.
  • North Carolina moves to change liquor sales laws, but one county dissents. North Carolina appears to be on the way toward ending its Prohibition-era system in which 170 local Alcoholic Beverage Control boards across the state, which operate 433 stores, have a monopoly on the sale of liquor. Private, licensed liquor stores would presumably spring up across the state to sell alcoholic beverages there. But officials in Mecklenburg County, which includes Charlotte, are generally opposed to the change, partly on the grounds that the county will lose tens of millions of dollars of revenue if alcohol sales are privatized. On August 7, the county's Board of Commissioners voted by a 7-2 margin to oppose the privatization efforts – but the vote is only symbolic, as the board does not have the legal power to stand in the way of the efforts at the state level. Many opponents of the change also predict that it will lead to higher liquor prices in North Carolina.
  • Oklahoma judge strikes down new state alcohol law. On August 12, an Oklahoma state judge ruled that the state's new liquor law, which requires all makers of top brands of wine and spirits to sell to all alcohol wholesalers in the state, violates the state's constitution. The ruling means that the previous Oklahoma law, which permits manufacturers to choose which companies can distribute their products, will stand. The judge found that the law unconstitutionally changed the provisions of an amendment passed by voters in 2016. "This is a victory for the voters of Oklahoma, who overwhelmingly approved changes to the state's alcohol distribution laws when they said yes to State Question 792 in 2016," said John Maisch, president of a coalition opposing the new law.
  • Hep A in the news. A July story in the South Florida Sun Sentinel,"Hepatitis A has reached record levels in Florida. Here's what restaurants are doing to keep you safe," reports that many restaurants across the state are strengthening their sanitary measures and urging workers to get vaccinated. "All kinds of food establishments" in Florida, from fast food to upscale, have had a worker test positive for Hep A this year, the newspaper noted, and some restaurants and restaurant chains are paying closer attention to sanitation and urging their workers to be vaccinated. However, it appears that not all restaurants are stepping up. On July 30,in Largo, the Pinellas County Health Department and the Division of Hotels and Restaurants inspected a Red Lobster, where a worker had tested positive for the Hep A virus, finding almost 40 health violations, including failure to properly wash hands – sanitation failures are one way Hep A spreads. On August 1, Florida Surgeon General Dr. Scott Rivkees declared a public health emergency over the state's growing Hep A epidemic. On August 6, the state announced it is offering free Hep A vaccines to Tampa Bay residents, available at Pinellas County Health Department clinics. To date this year, more than 2,000 cases of Hep A have been reported in Florida – already four times the total number of cases in the state for 2018. The Florida outbreak coincides with a long-term nationwide surge in Hep A – more than 22,000 cases and more than 200 deaths related to Hep A have been reported to the CDC this year.At present, the hardest hit US states are Kentucky, Ohio, West Virginia, Florida and Tennessee.Kentucky, this year, has recorded almost 5,000 cases of Hep A. The Florida Department of Health said fewer than 5 percent of the confirmed cases of Hepatitis A are restaurant workers. That would be around 100 restaurant workers.
  • New York state issues warning about a raw milk dairy.The New York State Department of Agriculture and Markets is warning consumers not to drink raw milk from Muddy River Dairy of Otego County because it has tested positive for Listeria. In New York state, sales of unpasteurized dairy are not allowed at the retail level – consumers can only buy raw milk products at the point of production, the dairy farm. Muddy River has one of only 76 raw milk licenses in the state; the Dairy Farmers of America has accredited it as a Gold Standard Dairy, recognizing the upkeep and appearance of the farm property and the care and health of its animals.

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