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January 7, 2015Newsletter

Agribusiness, Food and Beverage Newsletter

January 2015

President Obama's Executive Action and the Agricultural Sector
Kelly M. Fortier, Kelly R. Rourke, Jose A. Oliveri and Leah Hurtgen Ziemba
On November 20, 2014, President Obama announced that he would take executive action affecting the U.S. immigration system. The agricultural sector is not specifically addressed in the various components of President Obama’s initiative on immigration. Nevertheless, there are some components of the initiative that could have a significant impact on agriculture workers and their employers.
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Special Lease Considerations for Restaurant Uses
Nancy L. Haggerty
Our Agribusiness, Food and Beverage Group serves clients in many sectors of the Ag, Food and Beverage business or as we say from "field to fork." Today I am focusing more on the "fork" side of the business.
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Supreme Court Rules that Competitors Can Challenge Advertising that is False or Misleading Even if It Complies with Federal Food and Beverage Labeling Laws
Jeffrey H. Brown and Katrina G. Hull
The U.S. Supreme Court ruled in June 2014 that compliance with the FDA's food and beverage labeling requirements does not preclude further challenge under the false advertising provisions of the federal Lanham Act. The decision in POM Wonderful LLC v. Coca-Cola Co. reverses a ruling from the Ninth Circuit Court of Appeals and makes clear that food and beverage labels can mislead consumers even when the labeling complies with the Federal Food, Drug and Cosmetic Act (FDCA).
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EPA and Environmental Groups Withdraw from Clean Water Act Case

Cameron F. Field and Leah Hurtgen Ziemba
The Environmental Protection Agency (EPA) and intervening environmental organizations have withdrawn their appeal in a precedent setting Clean Water Act case. The case, Alt v. U.S. Environmental Protection Agency, Civil Action No. 2:12-CV-42 (N.D. W. Va., Oct. 23, 2013), applied the agricultural storm water discharge exemption to rainwater containing manure and feathers from a farmyard of a poultry operation, and validated the operation’s right to seek pre-enforcement judicial review of an EPA order. We discussed this case and its implications in depth in a previous Agriculture, Food, and Beverage Alert.
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Environmental Groups Use Civil Rights Act to Challenge Hog Farm Permits

David A. Crass and Cameron F. Field
In a novel approach, environmental and community health groups in North Carolina recently filed a petition with the U.S. Environmental Protection Agency (EPA) claiming that a general permit issued by the North Carolina Department of Environment and Natural Resources (DENR) for thousands of hog farms in the state violates the Civil Rights Act of 1964.
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Menu and Vending Machine Labeling - Final Rule Finally Released

Seth A. Mailhot and Leah Hurtgen Ziemba
On December 1, 2014, to implement the nutrition labeling provisions of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), the FDA issued a final rule that requires disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments ("Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments") and a final rule that requires calorie declarations for food sold from certain vending machines ("Food Labeling; Calorie Labeling of Articles of Food in Vending Machines"). These rules were in progress for years (the comment periods for both rules closed in July 2011).
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FDA's Second Swing at Proposed FSMA Regulations

Seth A. Mailhot and Leah Hurtgen Ziemba
In September 2014, the U.S. Food and Drug Administration (FDA) released four (4) Proposed Supplemental Rules that revise the agency's prior proposed rules that implement the Food Safety and Modernization Act (FSMA). Specifically, the Proposed Supplemental Rules modify the following proposed rules: 1) Current Good Manufacturing Practice (CGMPs) and Hazard Analysis and Risk-Based Preventative Controls for Human Food; 2) Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventative Controls for Food for Animals; 3) Standards for the Growing, Harvesting, Packing and Holding of Produce for Human Consumption; and 4) Food Supplier Verification Programs (FSVP) for Importers of Food for Humans and Animals. Previous client alerts that summarize the status of FSMA implementation are available on Michael Best & Friedrich's FDA Regulatory page.
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Nanotechnology in Food Production: FDA Finalizes Guidance on Manufacturing Process Changes for Food Additives

Seth A. Mailhot
In June 2014, the U.S. Food and Drug Administration (FDA) issued a final guidance titled "Assessing the Effects of Significant Manufacturing Process Changes, Including Emerging Technologies, on the Safety and Regulatory Status of Food Ingredients and Food Contact Substances, Including Food Ingredients that are Color Additives" (guidance).
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OSHA Amends Proposed Electronic Injury and Illness Regulation
Charles B. Palmer and Eric E. Hobbs
We recently wrote to alert our clients to the U.S. Occupational Safety and Health Administration’s (OSHA’s) new rule that will require employers, effective January 1, 2015, to report to OSHA within 24 hours all fatalities, amputations and losses of an eye, which reports OSHA intends then to make public. See "New OSHA Rule Requires Employers to Self-Report Severe Injuries Which Will Be Made Public." But that is not the only activity at OSHA worth noting.
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New OSHA Rule Requires Employers to Self-Report Severe Injuries Which Will Be Made Public
Charles B. Palmer and Eric E. Hobbs
On September 11, 2014, the Occupational Safety and Health Administration announced a revision to its injury reporting rules that will take effect January 1, 2015. The revision adds a surprising new requirement that has caught employers and employer groups by surprise.
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WPDES CAFO Permit Program Affirmed by Administrative Decision

David A. Crass and Anna J. Wildeman
As originally described in a previous client alert, available here, an Administrative Law Judge (ALJ) issued two decisions on September 4, 2014 in companion contested cases concerning permits and approvals issued by the Wisconsin Department of Natural Resources (WDNR) for the construction and operation of the proposed Richfield Dairy in Adams County, Wisconsin. One case focused on the WDNR's authority to regulate groundwater withdrawals via high capacity well permits, and is described in greater detail here. In the other case that is the focus of this alert, the ALJ considered arguments by opponents that the engineered facility designs were deficient for several reasons and that several provisions of the Wisconsin Pollutant Discharge Elimination System (WPDES) permit WDNR issued to Richfield Dairy were unreasonable. The ALJ determined that the engineered facility designs meet and exceed all applicable standards and will be protective of groundwater, and with a single exception, the WPDES permit issued to Richfield Dairy is reasonable.
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