Jason Foscolo LLC | FOOD LAW [email protected] (631) 903 - 5055 [email protected] Food Law for Start-ups

Jason Foscolo LLC | FOOD [email protected](631) 903 - 5055

Food Law for Start-ups

http://www.thefoodlawyer.com/

mailto:[email protected]

What is Food Law:Agricultural Exceptionalism

➢ Special rules written only for farmers

➢ Exemptions to broadly applicable laws that confer upon farmers an economic

advantage

➢ Unique obligations applicable only to food producers

Jason Foscolo LLC | FOOD LAW jasonfoscolo.com

Sources of Food Law:➢ Clean Water Act (by exception)

➢ Fair Labor Standards Act (by exception)➢ Capper-Volstead Act

➢ Farm Bill➢ Chapter 12 Bankruptcy Code➢ Packers and Stockyards Act

➢ Mundane; Forward Contract, Leases, Employment Contracts,

➢ Civil Liability


Types of Risk

➢ Regulatory Risk

➢ Civil Liability Risk

➢ Financial Risk


Topics Covered

➢ Strict Liability, Product Liability➢ Corporate Limited Liability Entities

➢ Recall➢ Labor Law

➢Food Labeling➢ Contracts

➢ Leases


Strict Liability➢ Liability without regard for negligence

➢ Jack Decoster and Jensen Family Farms - Differences

- Commonality: Marler Clark


Food Product Liability:Risk Management

How do we manage the risk?

Procedural Controls➢ Corporate Shield➢ Product Liability Insurance➢ Product Recall Plan➢ Recall Insurance➢ Contracts with Suppliers➢


Food Product Liability:Product Recalls

Product Inputs

➢ Sundland Peanut; “The Food and Drug Administration suspended Sundland 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.”


Food Product Liability:Product Recalls

➢ Food Safety Modernization Act

➢ Section 206; Mandatory Recall Authority

➢ Voids additional sections of liability policy


Labor Law: InternshipsFair Labor Standards Act

➢ Federal law - 6 qualifications for internships

➢ New York State adds 5 more


Labor Law: Internships

Fair Labor Standards Act - 6 Criteria➢ Training similar to that given in educational environment➢ For the benefit of the intern➢ Intern does not displace employees➢ Employer receives no immediate advantage of training➢ Intern is not entitled to permanent employment at end➢ Employer and intern understand no wages will be paid



New York State Labor Law; 5 Additional Criteria

➢ General training for industry, not particular employer➢ Screening process is different from permanent positions➢ Marketed as educational opportunity➢ Training performed under close supervision of knowledgable trainer➢ Intern does not receive employee benefits



Consequences➢ Lawsuit - Intern Sues Hearst Communications, 2012, goes Class Action➢ Lawsuit - Charlie Rose, $250,000 settlement , 2012➢ Unpaid Payroll Taxes➢ My Midnight Phone call

Regulatory and civil liability


Labor Law:The Safe Way to Have Interns

➢ Intern Solicitation➢ Consider a written Internship Agreement➢ Create Curriculum, Document lessoned learned, training provided


Food Labeling:Why Compliance is Important

➢ Anything non-compliant is “misbranded” ➢ FDA Warning Letters ➢ Administrative Detention ➢ Criminal Sanctions➢ Allergens➢ Food Safety Modernization Act: Mandatory Recall § 206➢ ($) Wholesale buyers are the gatekeepers of your success ($)


Food Labeling:Statement of Identity

➢ Product name, as plainly and simply as possible ➢ Name established by law or by regulation, Standards of

Identity➢ Peanut Butter, Corned Beef, Butter

➢ Common or Usual Name of the Product ➢ A descriptive name that is not misleading

➢ Sauer Kraut vs. Kimchee vs. Fermented Vegetables (FDA Warning Letter, Yon Foods LLC)

➢ Prominently displayed, 1/2 size largest print on PDP


Food Labeling:Allergen Labeling

➢ Food Allergen Labeling and Consumer Protection Act (2004), (Title II PL 108-282)

➢ Required the disclosure of 8 “major food allergens” “90% of reactions:

➢ Milk ➢ Tree Nuts (Specific Type) ➢ Egg ➢ Wheat ➢ Fish ➢ Peanuts ➢ Crustacean Shellfish ➢ Soybeans

➢ Declarations: within or near Ingredients List ➢ Parenthetically: corn, sugar, whey (milk)

➢ “Contains” Statement: “Contains: Wheat, Milk, Eggs”

➢ Gatekeeper may disagree

Jason Foscolo LLC | FOOD LAW www.foodlawfirm.com

Food Labeling:Exemptions

➢ Fresh Produce, zero nutrient foods like instant coffee, tea, direct to consumer bakery and deli goods

➢ Packaged Goods Small Business Exemption: retailers with annual gross sales of not more than $500,000. 21 CFR 101.9(j)(1) and

101.9(j)(18)

➢ No Claims ➢ Tougher to get the wholesale client

Jason Foscolo LLC | FOOD LAW www.foodlawfirm.com

Food Labeling:Claims

➢ Nutrient Content Claims ➢ Health Claims

➢ Qualified Health Claims, by petition to FDA➢ Structure/Function Claims


Trademarks

Why file a trademark with the USPTO?➢ Offense➢ Defense

➢ National Registry➢ Incontestability

➢ Access to federal court➢ ®


Trademarks: Types of Marks

➢ Word Marks

➢ Graphic Image Marks


Trademarks: Word Marks

Spectrum of Distinctiveness

➢ Fanciful: Xerox, Exxon, Mondelez➢ Arbitrary: Apple➢ Suggestive: Microsoft, BluRay➢ Descriptive: Good Food Jobs, IBM➢ Generic: Horse


Trademarks: Graphic Image Marks

Likelihood of Confusion:➢ Similarity between overall impression of mark

➢ Sound, look, psuedo-mark➢ Similarity of Goods and Services➢ Strength of the mark based on Spectrum➢ Evidence of Customer Confusion➢ The Intent of the defendant in adopting the mark➢ Proximity➢ Degree of Customer Discretion➢ Expansion of Product lines


Contracts:

➢ Financial Risk Management


Leases:

➢ Sustainable Leasing


Jason Foscolo LLC | FOOD [email protected](631) 903 - 5055

Food Law for Start-ups

Documents

Jason Foscolo LLC | FOOD LAW [email protected] (631) 903 - 5055 [email protected] Food Law for Start-ups