Food & Beverage Litigation Update l May 2020 #3

Shook, Hardy & Bacon L.L.P.

LEGISLATION, REGULATIONS & STANDARDS

EU Announces “Farm To Fork Strategy”

The European Commission has announced the adoption of strategies to support biodiversity and “transition to a sustainable EU food system that safeguards food security and ensures access to healthy diets sourced from a healthy planet.”

“The coronavirus crisis has underlined the importance of a robust and resilient food system that functions in all circumstances, and is capable of ensuring access to a sufficient supply of affordable food for citizens,” a question-and-answer resource on the program stated. “It has also made us acutely aware of the interrelations between our health, ecosystems, supply chains, consumption patterns and planetary boundaries.” The program’s goals include reduction of chemical pesticides, preservation of soil nutrients, reduction in sales of antimicrobials for farmed animals and aquaculture, and an increase in organic farming by 2030. The program will also include the proposal of mandatory front-of-packaging nutrition labeling and efforts to reduce food waste.

Bill Proposed To Support Restaurants Through COVID-19 Crisis

U.S. Rep. Earl Blumenauer (D-Ore.) has introduced The Real Economic Support That Acknowledges Unique Restaurant Assistance Needed to Survive Act of 2020 (RESTAURANTS Act). The proposed bill would create a $120 billion “restaurant stabilization grant program designed to help independent restaurants deal with the long-term structural challenges facing the industry due to COVID-19 and ensure they can reemploy 11 million workers,” according to Blumenauer’s May 20, 2020, press release. The program, which would be administered by the Department of the Treasury, would provide grants sufficient “to cover the difference between revenues from 2019 and projected revenues through 2020, with a maximum grant of $10 million.”

APHIS Amends Regulations On Movement Of GMOs

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has released a final rule updating regulations on genetically modified organisms (GMOs). The rule adjusts the regulatory process for specific GMOs created to combat plant pests that pose no increased plant pest risk than conventionally bred plants.

USDA Implements Coronavirus Food Assistance Program

The U.S. Department of Agriculture (USDA) has issued a rule implementing the Coronavirus Food Assistance Program (CFAP), which was allocated $9.5 billion in the Coronavirus Aid, Relief, and Economic Stability Act. CFAP provides financial support for agricultural producers affected by COVID-19 to help offset sales losses. The Farm Service Agency and Agricultural Marketing Service will implement the program, which is generally available to producers that “suffered a 5-percent-or-greater price loss over a specified time resulting from the COVID-19 outbreak” or “face additional significant marketing costs for inventories.”

FDA Publishes Findings Of Leafy Greens E. Coli Investigation

The U.S. Food and Drug Administration (FDA) has published the results of its investigation into an outbreak of E. coli in November and December 2019 caused by romaine lettuce and other leafy greens from the Salinas Valley area of California. FDA found that nearby land used for cattle grazing was the most likely contributing factor associated with three outbreaks that stemmed from three distinctly different strains of E. coli.

LITIGATION

Ferrara Candy Co. Underfills Theater Boxes, Plaintiffs Allege

A group of consumers has filed a putative class action asserting that Nestle USA Inc. and Ferrara Candy Co.’s opaque candy boxes contain too much slack fill. Iglesia v. Nestle USA Inc., No. 20-5971 (D.N.J., filed May 15, 2020). The complaint alleges that Ferrara and Nestle “pioneered a scheme to deceptively sell candy in oversized, opaque boxes that do not reasonably inform consumers that they are half empty. Defendants’ ‘slack-fill’ scam dupes unsuspecting consumers across America to pay for empty space at premium prices.” The complaint also features several photos of boxes with portions cut away, purportedly showing the amount of empty space in an unopened package. For alleged violations of New York, New Jersey, Michigan, Illinois, North Carolina, Texas and Florida consumer-protection statutes, the plaintiffs seek an injunction, restitution, damages and attorney’s fees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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