Posts from July 2021.
Posted in Legal Bites
Trader Joe’s Dodges Sticky Situation With Dismissal of Manuka Honey False Advertising Lawsuit

The Ninth Circuit last month upheld a trial court’s decision to dismiss a false advertising lawsuit against Trader Joe’s concerning the store’s labeling of its Manuka honey. The case, Moore et al. v. Trader Joe’s Co., Case No. 19-16618 (9th Cir.), centered around allegations that Trader Joe’s violated multiple states’ consumer protection laws by falsely labeling its Manuka honey as “100% New Zealand Manuka Honey” when, in reality, only about 57-62% of the honey is derived from Manuka nectar.

Manuka honey is created by bees that forage from the Manuka bush, a plant ...

Posted in Legal Bites
AB 61 Regulatory Relief for Restaurants: A Conversation with Assemblymember Jesse Gabriel

On July 14, 2021, the Senate Health Committee approved Assembly Bill (“AB”) 61, which would provide regulatory flexibility to restaurants to expand outdoor dining. The bill now includes an urgency clause, meaning that it can be implemented immediately after it passes. The bill was first introduced on December 7, 2020. It now has 21 bipartisan co-authors.

According to a press release, “AB 61 would provide much-needed regulatory flexibility to restaurants, including temporarily waiving requirements for fully enclosed kitchen and service areas, extending existing ABC ...

Posted in Legal Bites
FTC Finalizes “Made in USA” Rule Amidst Inter-Commission Conflict

On July 1, 2021, the Federal Trade Commission (“FTC”) issued its final rule related to “Made in USA” and other unqualified U.S.-origin claims on product labels. The effective date of the rule is August 13, 2021.

The rule comes almost one year after the FTC issued its Notice of Proposed Rulemaking (“Notice”) seeking public comments on the rule on July 16, 2020.

The FTC stated that it had received over 700 comments from the public in response to the Notice. According to the FTC: “Commenters generally supported the rule, stating it provided much-needed clarity and would ...

Posted in Legal Bites
California Supreme Court Issues Retroactive Decision on Calculating Meal and Rest Break Premium Pay

Since 2019, California employers have relied on Ferra v. Loews Hollywood Hotel, LLC, 40 Cal.App.5th 1239, for the proposition that only hourly wages would be used to calculate “premium pay” for meal or rest breaks under Labor Code section 226.7. In a serious blow to California employers, the California Supreme Court has reversed this ruling and held that non-discretionary bonus payments and commissions must be included in calculating these premium payments in the same manner as calculating for overtime pay. Adding insult to injury, the Court has held that its ruling will ...

Employer Alert: Los Angeles County Revises Health Order to Reinstate Indoor Mask Requirement Regardless of Vaccination Status

On July 16, 2021, the Los Angeles County Department of Public Health (LACDP) issued a revised health order available here (Order) requiring masks for everyone, regardless of vaccination status, in all indoor public settings, venues, gatherings and businesses. Examples of such locations include offices, retail, restaurants, theaters, family entertainment centers, meetings, etc.

The Order also requires that individuals, businesses, venue operators or hosts of public indoor settings require all patrons to wear masks in all indoor settings, regardless of vaccination status ...

Employer Alert: Los Angeles County Reinstates Indoor Mask Requirement Regardless of Vaccination Status

Beginning Saturday, July 17, 2021, at 11:59 P.M., Los Angeles County will once again require all residents to wear masks in indoor public spaces, regardless of their vaccination status. The requirement will be reimposed due to rising Los Angeles County COVID-19 cases and the spread of the highly infectious Delta variant.

Los Angeles County reported an average of 1,077 new cases daily during the 7-day period ending July 14, 2021, which is a 261% increase from the prior two-week period. An additional 1,537 cases were reported today, July 15th, representing an increase of over 80 ...

Posted in Legal Bites
LA County Reinstating Mask Mandate

On July 15, 2021, Los Angeles County’s Department of Public Health (the “Department”) announced at a press conference that it would be issuing a new public health order requiring all residents, regardless of vaccination status, to wear masks in indoor public spaces. The order will go into effect at 11:59 pm on Saturday, July 17, 2021.   

On July 13, 2021, the Department announced a substantial increase of COVID-19 cases in Los Angeles County, with 1,1103 new cases—an increase of 500% in one month.

On June 28, 2021, the Department issued a recommendation that all residents remain ...

Posted in Legal Bites
House Appropriations Committee Directs FDA F&B Priorities

On June 30, 2021, the House Committee on Appropriations (the “Committee”) issued a report accompanying a bill making appropriations for the U.S. Department of Agriculture, Food and Drug Administration (“FDA”), and related agencies for fiscal year 2022.

The report includes the Committee’s review and direction as to the FDA’s work. While most of this guidance was focused on drug-related regulation, the Committee offered some specific directives on food and beverage regulation that may guide the FDA’s future work. The topics of interest in the report related to the ...

When Can a Court Refuse To Appoint a Receiver Under Health and Safety Code Section 17980.7c?

Q: I have handled a number of health and safety receiverships. A city I have worked with before asked me to look at a property and prepare a proposed remediation plan, so they could have me appointed receiver under Health and Safety Code §17980.7(c). The court denied the city’s motion, saying it knew where the property was located and the cost of remediation was not worth it, given the property’s value. Can the court do that?

A: No. Under Health and Safety Code § 17980.7(c) there are only two requirements for the appointment of a receiver. First, “the court shall consider whether ...

Posted in Legal Bites
SBA Shutting Down RRF Portal on July 14

On July 14, 2021, the Small Business Administration (“SBA”) will officially close its Restaurant Revitalization Fund (“RRF”) portal. This move raises questions about whether the RRF funds will be replenished, despite pending congressional action.

The SBA stopped processing fund applications on May 24, 2021, after a huge influx of applications, seeking nearly double the funds available.

As of June 30, 2021, the SBA reported that the RRF program received more than 278,000 submitted eligible applications representing over $72.2 billion in requested funds, and ...

Posted in Legal Bites
FDA Foods Program Releases Guidance Topics

On June 29, 2021, the U.S. Food and Drug Administration’s (“FDA”) Center for Food Safety and Applied Nutrition and Office of Food Policy and Response released a list of draft and final guidance topics that are a priority for the FDA Foods Program to complete during the next 12 months. 

The FDA anticipates publishing guidance for many of these documents by June 2022. The FDA stated that the agency “is taking this action to provide stakeholders increased transparency and additional insights into the foods program priorities. Guidance documents represent the FDA’s current ...

EEOC Issues Updated COVID-19 Guidance Regarding Vaccination Incentives

The Equal Employment Opportunity Commission (EEOC) has issued updated guidance regarding providing incentives to employees to encourage COVID-19 vaccination, examining various scenarios under the Americans with Disabilities Act (ADA) and the Genetic Information Discrimination Act of 2008 (GINA). The updated guidance can be found here under items K.16 - K.21.

The guidance confirms that under the ADA, as long as the incentive is not so substantial as to be coercive, an employer may provide an incentive (which may include both rewards and punishments) to employees for ...

Posted in Legal Bites
Congress Considers Replenishment of Exhausted RRF Funds

The much anticipated Restaurant Revitalization Fund (RRF) was deluged with applicants. According to Restaurant Dive, more than 362,000 applications were received in the first three weeks of the program for a total of $75 billion in funding. The SBA has since closed its portal to new applicants. The portal website states: “After an overwhelming response to the Restaurant Revitalization Fund, the application portal is now closed for new applications.”

On June 8, 2021, a bipartisan group of Senators and U.S. Representatives introduced the Restaurant Revitalization Fund ...

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