Insights

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

Last week, New York Attorney General Letitia James filed a lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (JBS USA), which together make up the American subsidiary of the world’s largest beef product producer, JBS S.A. The suit alleges that JBS USA engaged in “greenwashing,” misleading consumers about its environmental impact goals. The suit is one amongst many state attorney general lawsuits related to greenwashing or ESG claims, which have spanned across the aisle and been initiated by both Democratic and Republican attorneys general.

On October 27, 2023, the Office of Environmental Health Hazard Assessment (OEHHA) gave notice of several proposed amendments to the Proposition 65 warning regulations. If implemented, the rules may require many businesses to make substantial changes to their short-form warnings before a two-year phase-in deadline.   

In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics.  Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”.  See Report, pg. 6.  A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII).

It seems most everyone has been closely monitoring Taco Bell’s cancellation proceedings directed to federal trademark registrations covering the TACO TUESDAY trademark.  On July 15, 2023, one of the registrants, Spicy Seasonings, LLC, withdrew its registration after decades of ownership, supporting Taco Bell’s allegations that the phrase is generic and therefore not protectable as a trademark.

The Food and Drug Administration (“FDA”) recently issued guidance recommending that the term “milk” extend beyond dairy (cow) milk products to plant-based alternatives. Although not legally binding, the guidance indicates that nondairy milk alternatives can be labeled “milk” and need not be restricted as nondairy “beverages” or “drinks.” These plant-based alternatives should, however, include a statement on their product label describing how they are nutritionally different from milk (e.g., “contains a lower amount of potassium than milk”).

On May 18, 2022, President Biden issued Presidential Determination No. 2022-13, delegating certain authorities under Section 101 of the Defense Production Act, 50 U.S.C. § 4511 (DPA) for purposes of ensuring an adequate supply of infant formula. Implicit in this directive, the President determined that the ingredients necessary to manufacture infant formula are scarce and critical material essential to the national defense, and that such national defense requirements cannot be met without creating a significant dislocation of the normal distribution of such material in the civilian market. Specifically, the Presidential Determination stated that, the supply chain “disruption threatens the continued functioning of the national infant formula supply chain, undermining critical infrastructure that is essential to the national defense, including to national public health or safety.” The President delegated to the Secretary of Health and Human Services authorities to require performance of contracts or orders for such national defense needs over performance of other contracts or orders, and to allocate materials, services, and facilities with respect to all health resources, including ingredients needed to manufacture infant formula. The President also authorized the Secretary to exercise DPA authorities to determine the proper nationwide priorities and allocation of all ingredients necessary to manufacture infant formula, including controlling the distribution of such materials in the civilian market for purposes of responding to the domestic shortage of infant formula. Frequently asked questions concerning the DPA are included here.

In March, 2020, the U.S. Food and Drug Administration (“FDA”) announced that the Agency would temporarily halt domestic facility inspections not deemed “mission-critical,” citing health concerns related to the COVID-19 pandemic. On July 10th, FDA announced its plans to resume domestic on-site facility inspections during the week of July 20th. 

On May 8, 2020 the U.S. Food and Drug Administration (“FDA”) shared a checklist of best practices for re-opening retail food establishments (including restaurants) during the COVID-19 pandemic. According to FDA, this checklist establishes key food safety practices, but is not an exhaustive list. FDA recommends that retail food establishments work with local health and regulatory authorities to discuss requirements for safely re-opening.

On April 9, 2020, the U.S. Food and Drug Administration (FDA) shared recommendations on best practices for food retail stores, restaurants, and food pick-up and delivery services during the COVID-19 pandemic. According to the FDA, companies should follow these practices to better protect their food industry workers and consumers. Further, compliance with these policies could also reduce the risk of future litigation if, for example, plaintiffs seek to hold companies responsible for the spread of COVID-19.

Following its recent decision to lift certain restrictions on the sale of packaged foods, the U.S. Food and Drug Administration (FDA) has taken further steps to increase flexibility with respect to packaging and labeling requirements for shell eggs. FDA issued this temporary policy to “meet the increased demand for shell eggs during the COVID-19 pandemic.”

Continuing its efforts to ensure a continuous and safe supply of food during the COVID-19 Public Health Emergency, on April 5, 2020, the U.S. Food and Drug Administration (FDA) updated its Questions & Answers for Industry on food safety and COVID-19 to address social distancing in food production/processing facilities and retail food establishments where employees typically work in close proximity.

As a result of the COVID-19 Pandemic, restaurants may have food on hand that they can no longer use to prepare food for patrons. Similarly, food manufacturers may have inventory labeled for use in restaurants that is no longer in demand by the restaurant industry. To encourage the further distribution of this food during the ongoing public health emergency, which may otherwise go to waste, the U.S. Food and Drug Administration (“FDA”) temporarily changed its policy to allow restaurants and food manufacturers to sell packaged foods (intended for restaurant use), that lack Nutrition Facts labels, directly to consumers and businesses. Under normal circumstances, if restaurants sell packaged foods directly to consumers, or to other businesses for sale to consumers, nutrition information may be required. See 21 CFR 101.9(a)(1) and 101.9(j)(2).

In response to the recent COVID-19 pandemic, the U.S. Food and Drug Administration (“FDA”) has temporarily paused all domestic and international on-site inspections not deemed “mission-critical.”