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January 2021 Regulatory Update | 1 of 2 |
This Regulatory Update includes information from December 31, 2020 – January 16, 2021. Please contact Paul Benson, Taylor Fritsch, or Leah Ziemba for additional information on regulatory issues that may affect your business. For access to articles and resources from our Premium Member law firm, Michael Best & Friedrich, to help navigate this challenging time, please follow these hyperlinks to Michael Best’s COVID-19 Resource Center and CARES Act Relief Resource Center.
REGULATIONS AND INDUSTRY GUIDANCE
USDA UPDATES
OTHER DEVELOPMENTS
UPCOMING MEETINGS & CONFERENCES
REGULATIONS AND INDUSTRY GUIDANCEFDA Sets Uniform Compliance Date for Food Labeling Regulations The new uniform compliance date does not affect existing compliance date requirements in final rules published before January 1, 2021. Furthermore, “[f]or some food labeling regulations…FDA will set a compliance date that differs from the uniform compliance date if special circumstances justify a different compliance date. The specific compliance date is published when a final regulation is issued.” Read FDA’s Constituent Update here and Federal Register Notice here.
FDA Updates Proposed Food Traceability List and Publishes FAQ on Proposed Rule First, the agency made clarifying edits to its proposed “Food Traceability List” (FTL), which lists the foods for which additional food traceability recordkeeping requirements would apply under the proposed rule. According to the agency’s Constituent Update, the edits to certain commodity descriptions “were made for clarity and do not reflect a change in which foods are on the FTL.” All edits to the FTL are detailed in its memorandum entitled “Food Traceability List for ‘Requirements for Additional Traceability Records for Certain Foods’ Proposed Rule – Clarified Language.” Second, FDA published a “Frequently Asked Questions” section on its webpage about the proposed rule. The agency created the FAQ section to assist stakeholders who are considering submitting comments on the proposed rule, especially given the extension of the comment period to February 22, 2021. Read FDA’s Constituent Update here, the memo on edits to the FTL here (PDF), and its FAQ section here (PDF). Visit the webpage for the proposed rule here. Read about the proposed rule in our September 2020 (Part 2) Regulatory Update here.
Department of Labor Issues Final Rule to Modernize H-2A Agricultural Labor Visa Program According to DOL’s News Release, the 722-page final rule “mandates electronic filing of job orders and applications”; establishes new standards permitting small employers to employ H-2A employees jointly in full-time employment; “provide[s] additional flexibilities that will reduce unnecessary burdens on the agricultural employers that use the program”; and “strengthen[s] protections for U.S. and foreign workers by enhancing standards applicable to rental housing and public accommodations, strengthening surety bond requirements, and expanding the Department’s authority to use enforcement tools like program debarment for substantial violations of program rules.” U.S. Secretary of Agriculture Sonny Perdue issued a statement applauding the final rule: “USDA’s goal is to help farmers navigate the complex H-2A program that is administered by Department of Labor, Department of Homeland Security, and the State Department so hiring a farm worker is an easier process…These modernizations make the Federal government more responsive to our customers, ensuring American agriculture continues to lead the world for years to come.” Read USDA’s Press Release here and DOL’s News Release here. Read the final rule here (PDF) USDA UPDATESUSDA Releases FY 2021 Annual Sampling Plan Read USDA-FSIS’s Constituent Update here and the FY 2021 Annual Sampling Plan here (PDF).
USDA Releases “Agriculture Innovation Research Strategy” Summary and Dashboard In both an April 2020 Request for Information (RFI) and stakeholder-led workshops, USDA sought stakeholder input on “transformational research goals for the next era of agriculture productivity and environmental conservation” and “approaches to these opportunities around four innovation cluster areas (Genome Design, Digital Automation, Prescriptive Intervention, and Systems Based Farm Management).” The agency synthesized the responses to these prompts in its report. USDA created the public dashboard, meanwhile, to publicize stakeholder data “on agricultural innovation opportunities over three time horizons, including near-term solutions, longer-term transformational solutions, and next era concepts.” Read USDA’s Press Release here and the summary here (PDF). Visit the dashboard here.
USDA Expands Coronavirus Food Assistance Program (CFAP) Eligibility Specifically, producers of pullets and turfgrass sod, as well as “[c]ontract producers of swine, broilers, laying hens, chicken eggs and turkeys who suffered a drop in revenue in 2020 as compared to their 2019 revenue because of the pandemic,” are now eligible for CFAP payments. Additionally, USDA adjusted the CFAP payment calculations for certain row crops and for “all sales commodities, which include specialty crops, aquaculture, tobacco, specialty livestock, nursery crops and floriculture,” for CFAP Round 2. Finally, the agency will provide “an additional CFAP 1 inventory payment for swine to help producers who face continuing market disruptions from changes in U.S. meat consumption due to the pandemic.” Producers who are now eligible for CFAP payments or need to modify existing applications as a result of these updates may contact USDA’s Farm Service Agency (USDA-FSA) between January 19 and February 26, 2021. Read USDA’s Press Release here. OTHER DEVELOPMENTSWestbrae Natural Is Latest Company to Defeat Allegations of Misleading Vanilla-Flavored Product Marketing At issue was Westbrae’s labeling of its vanilla soymilk product. The front label of the product described it as “Vanilla Soymilk,” and the ingredient list disclosed “Natural Vanilla Flavor With Other Natural Flavors.” Because the front label did not explicitly state that the soymilk contained “Other Natural Flavors,” plaintiff Natasha Barreto alleged that Westbrae’s labeling was “deceptive and misleading in misrepresenting the source of the product’s vanilla flavor as being derived exclusively or predominately from the vanilla plant,” according to the Court’s opinion. The Court dismissed the case on the grounds that Barreto had not alleged that there was no natural vanilla present and stated the following: “In assessing the product’s packaging as a whole, a reasonable consumer would conclude that the soymilk has a vanilla flavor and at least some of it is natural vanilla flavor. There is no claim anywhere on the packaging that natural vanilla is the predominant source of the vanilla flavor.” Westbrae joined a growing number of companies that have defeated deceptive marketing allegations regarding their vanilla-flavored products. According to Bloomberg Law, “Three other judges in the Southern District of New York recently dismissed suits alleging [that] the labeling of ‘vanilla’ almond milk, ‘Smooth Vanilla’ protein drink[,] and ‘Vanilla’ ice cream was misleading because the vanilla flavor didn’t come exclusively from natural vanilla. Like the labels in those cases, Westbrae’s label makes a representation regarding product flavor, not source of the flavor, the court here said.” |