Food and Beverage Legal Update for November and December 2018

Pooja S. Nair, a litigation attorney at TroyGould PC in Los Angeles, compiles recent legal news affecting the restaurant, food and beverage and hospitality industries for Modern Restaurant Management (MRM) magazine.

Food and Beverage on the Ballot

On November 6, several food and beveragerelated legislative initiatives were on the ballot in various states:

• California voters passed the Farm Animal Confinement Initiative (Proposition 12), which requires that by 2022, all eggs sold in California come from cagefree hens. Proposition 12, also sets new minimum cage size requirements for breeding pigs and calves raised for veal and sold in California.  
• Chicago passed a plastic straw ban– 55 percent of voters approved of the nonbinding referendum.  The city government now has leeway to decide how and when to enact the ban.
• Washington rejected a soda tax.
• Missouri voters passed Proposition B, to increase the state’s minimum wage from $7.85 per hour to $12 per hour by 2023. 
• Arkansas passed Issue 5, to increase wages from $8.50 an hour to $11 an hour by 2021. 

European Union Rules that Taste Cannot Be Copyrighted

 On November 13, the Court of Justice for the European Union ruled that the taste of a food product is not eligible for copyright production and cannot be classified as a “work.”  

The case involved a Dutch spreadable dip. The Court ruled that unlike objective works that could be protected as intellectual property, “the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable.” 

Regulation of CellCultured Food

On November 16, the USDA and FDA announced that both agencies would be jointly overseeing the production of cellcultured food produced derived from livestock and poultry. The agencies announced an agreement on a joint regulatory framework.  

In this framework, the FDA would oversee cell collection, cell banks, and cell growth while the USDA would oversee the production and labeling of food products derived from the cells.  Multiple companies are in the process of creating cellcultured meat.

Second Circuit Affirms Dismissal of Truffle Flavoring Case

On December 3, the Court of Appeals for the Second Circuit issued a summary order affirming a lower court’s dismissal of a consumer lawsuit regarding truffleflavored oil.  The Court found that it was “simply not plausible” that a significant portion of the general public would conclude that mass produced olive oil was made with real truffles.