• Posts by Pooja S. Nair
    Partner

    Pooja S. Nair is a business litigator and problem solver with a focus on the food and beverage sector. She advises food and beverage clients, startups and other businesses on a comprehensive range of issues, including employment ...

LA City Council Joins County, Passing “Hero Pay” for Grocery Workers

On February 24, 2021, the Los Angeles City Council voted 14-1 to pass an ordinance mandating that employers provide $5/hour in additional premium hazard pay for on-site grocery and drug retail workers.

The ordinance is expected to go into effect the week of March 1, after it is signed by Mayor Eric Garcetti, who has already expressed support. The pay increase will go into effect for 120 days and then expire.

The ordinance applies to grocery stores and drug retails stores with more than 300 employees nationwide and more than ten employees on-site in Los Angeles. Approximately 26,000 ...

LA County Mandates “Hero Pay” for Grocery Workers

On February 23, 2021, the Los Angeles County Board of Supervisors voted 4-1 to institute a $5 per hour “Hero Pay” increase for frontline grocery workers and drug retailers in unincorporated areas of Los Angeles County. The increase is effective immediately and will remain in effect for 120 days. The ordinance will increase pay for approximately 2,500 grocery workers in these unincorporated areas of the County.

The motion was co-sponsored by Supervisors Hilda Solis and Holly Mitchell. The motion states: “Frontline grocery and drug retail workers have been met with COVID-19 ...

Posted in Legal Bites
FDA/USDA: No Transmission of COVID-19 Through Food/Food Packaging

On February 18, 2021, Acting FDA Commissioner Janet Woodcock and Acting USDA Secretary Kevin Shea issued a joint COVID-19 update statement that current epidemiologic and scientific information available to the FDA and USDA indicates no transmission of COVID-19 through food or food packaging.

The press release states: “Our confidence in the safety of the U.S. food supply remains steadfast. Consumers should be reassured that we continue to believe, based on our understanding of currently available reliable scientific information, and supported by overwhelming ...

Department of Labor Proposes Delay on Tip Regulations and Independent Contractor Rule

On February 5, 2021, the Department of Labor (DOL) published two notices of proposed ruling to delay the effective date of two rules finalized by the DOL under the Trump Administration regarding tips and independent contractor rules. The proposed delays are designed to allow the DOL “additional opportunity for review and consideration” of both rules.

The first rule is Tip Regulations Under the Fair Labor Standards Act (“Tip Regulations”), which was published on December 30, 2020, and set to go into effect on March 1, 2021. The proposed rule would delay the effective date of ...

Posted in Legal Bites
Ninth Circuit Revives P.F. Chang’s “Krab Mix” Lawsuit

On February 9, 2021, a divided Ninth Circuit Panel held that consumer claims against the P.F. Chang’s restaurant chain based on the term “Krab Mix” in certain menu items could proceed. The Court reversed a lower court decision that had thrown out these claims.

Plaintiff’s claims arose from his purchase of P.F. Chang’s sushi rolls that are identified on the menu as being made with a “Krab Mix.” Plaintiff claimed that based on the “Krab Mix” name, he believed the items contained a mix of real crab and imitation crab. Plaintiff made claims based on California’s Unfair ...

Posted in Legal Bites
Restaurant Rescue Plan Approved by Senate

On February 4, 2021, the Senate voted 90-10 to approve a Restaurant Rescue Plan as an amendment to a larger budget resolution. Senate Amendment 261 was co-sponsored by Republican Senator Roger Wicker and Democratic Senator Kyrsten Sinema. The amendment is part of a budget resolution passed by the Senate on February 5 that paves the way for passage of President Joe Biden's pandemic relief package.

The Restaurant Rescue Plan establishes a $25 billion grant program for restaurants hurt by the pandemic and was based on the RESTAURANTS Act. The $25 billion in grants fall short of the $125 ...

Posted in Legal Bites
Can Product Reviews Be Subject To Lanham Act Liability?

On January 22, 2021, a divided Ninth Circuit panel ruled that a nutritional guide could constitute commercial speech subject to the Lanham Act.

The Lanham Act is best known for being the primary federal trademark statute in the United States. In addition to the trademark provisions, Section 43(a) of the Lanham Act creates a cause of action for false advertising and prohibits any person from misrepresenting his or another person’s goods or services in “commercial advertising or promotion.”

In this case, defendant NutriSearch Corporation published a guidebook that compared ...

Posted in Legal Bites
LA Announces New Outdoor Dining Rules

The Los Angeles County Public Health Department issued a new order outlining protocols for businesses to follow. These new rules are designed to decrease COVID transmission risk in restaurant settings.

Some of these new rules for restaurants include:

  • Employees that may come in contact with customers must wear both a face covering and a face shield at all times when interacting with customers and when in customer service areas.
  • Outdoor dining table seating must be limited to no more than 6 people per table, all of whom must be from the same household.
  • All establishments must post signage ...
President Biden Issues Early Executive Order on COVID-19 Worker Safety

On January 21, 2021, President Biden issued an Executive Order on Protecting Worker Health and Safety that calls for a government review of worker safety standards for COVID-19.

The Executive Order directs the Secretary of Labor to issue revised guidance to employers on workplace safety during the COVID-19 pandemic within two weeks. It further directs the Secretary of Labor to consider emergency temporary standards on COVID-19 and issue those standards by March 15, 2021.

The Executive Order calls for a review of enforcement efforts previously undertaken by the Occupational ...

California Lifts Regional Stay at Home Order

On January 25, 2021, the California Department of Public Health announced that it was lifting the Regional Stay at Home Order for all regions statewide, including Southern California. Four-week ICU capacity projections for the three regions still under the order (Southern California, Bay Area and San Joaquin Valley) were above 15%.

According to the Department, “this action allows all counties statewide to return to the rules and framework of the Blueprint for a Safer Economy and color-coded tiers that indicate which activities and businesses are open based on local case rates ...

LA County to Reopen Outdoor Dining

On January 25, 2021, Los Angeles County Director of Public Health Barbara Ferrer announced that the county would be permitting outdoor dining starting Friday, January 29. The county will also remove operation restrictions for non-essential businesses between 10 p.m. and 5 a.m. The County’s announcement followed Governor Gavin Newsom’s lifting of the state’s Regional Stay at Home Order earlier today.

LA County Board of Supervisors Chair Hilda Solis released a statement that “Los Angeles County will essentially align with the state, by the end of the week, to allow for the ...

Posted in Legal Bites
FDA Clarifies Food Traceability Rule and Extends Comment Period

On January 12, 2021, the Food and Drug Administration (“FDA”) announced two updates to stakeholders regarding the agency’s Food Traceability Proposed Rule. 

The Proposed Rule was initially announced on September 12, 2020, and it establishes additional traceability recordkeeping requirements for companies that manufacture, process, pack or store foods that the FDA has included on its Food Traceability List.

First, the FDA announced clarifying edits to the Food Traceability List. All of the specific edits are described in a memo: “Food Traceability List for ...

Posted in Legal Bites
FDA Announces 2024 Compliance Date for 2021-2022 Food Labeling Regulations

On January 4, 2021, the Food and Drug Administration announced that it would set January 1, 2024 as the uniform compliance date for final food labeling regulations that are issued in calendar years 2021 and 2022.

In its Federal Register publication of the rule, the FDA stated: “Use of a uniform compliance date provides for an orderly and economical industry adjustment to new labeling requirements by allowing sufficient lead time to plan for the use of existing label inventories and the development of new labeling materials.”

If any food labeling regulation involves special ...

LA County Considers Mandated $5/Hour “Hero Pay” Increase For Grocery Workers

On January 5, 2021, the Los Angeles County Board of Supervisors considered an urgency ordinance requiring grocery stores to pay workers an additional $5/hour as “Hero Pay” due to the COVID-19 pandemic. 

Supervisors Hilda Solis and Holly Mitchell put forth the motion and noted that “as the County experiences a record-breaking wave of COVID-19 cases, grocery retailers have experienced an increase in outbreaks with nearly 500 businesses currently under investigation in the County alone. The inability to practice social distancing consistently at work due to large crowds has ...

Los Angeles County Issues Mandatory Self-Quarantine for Non-Essential Travel

Effective beginning December 31, 2020, the Los Angeles County Department of Public Health published a Mandatory Directive on Travel (Appendix W) and issued a Revised Temporary Order, both of which require a mandatory quarantine of at least 10 days after non-essential travel outside the Southern California Region (the counties of Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara and Ventura). 

The Order and Travel Directive apply to Los Angeles County residents and non-residents who enter Los Angeles County from ...

Posted in Legal Bites
New Dietary Guidelines "Make Every Bite Count"

On December 28, 2020, the U.S. Department of Agriculture and the U.S. Department of Health and Human Services released 2020-2025 Dietary Guidelines for Americans

Dietary Guidelines have been published by the USDA and HHS every five years since 1980. The 2020-2025 Dietary Guidelines are the first to include nutritional guidance for babies and toddlers.

The final 2020-2025 Dietary Guidelines rejected guidance from the advisory committee’s scientific report with regard to alcohol consumption and sugar intake. The committee had recommended that alcohol consumption guidance ...

Southern California Regional Stay at Home Order Extended

On December 29, 2020, California Health and Human Services Secretary Dr. Mark Ghaly announced that the Southern California region would remain under a regional stay-at-home order indefinitely until ICU capacity goes above 15%. ICU capacity is currently at 0% in Southern California.

The Regional Stay Home Order was first announced on December 3, 2020. The order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and social distancing except for certain limited exceptions. The order sets a ...

Posted in Legal Bites
Sources of Foodborne Illness Report Released

On December 18, 2020, the Interagency Food Safety Analytics Collaboration (IFSAC) issued its 2018 Annual Report on the Sources of Foodborne Illness. 

The report collects and analyzes foodborne-illness outbreak data for four pathogens - Salmonella, Escherichia coli O157, Listeria monocytogenes, and Campylobacter – and specific foods and food categories that are responsible for foodborne illnesses in the United States. The CDC estimates that, together, these four pathogens cause nearly two million cases of foodborne illnesses in the U.S. each year.

The report found:

    Posted in Legal Bites
    FDA, EPA and USDA Renew Inter-Agency Food Waste Reduction Initiative

    On December 17, 2020, three U.S. agencies: The U.S. Environmental Protection Agency (“EPA”), U.S. Food and Drug Administration (“FDA”) and U.S. Department of Agriculture (“USDA”) announced the renewal of the Formal Agreement Among EPA, FDA and USDA Relative to Cooperation and Coordination on Food Loss and Waste. The renewed agreement has a three-year term.

    The Winning on Reducing Food Waste Federal Interagency Strategy prioritizes action areas to reduce food loss and waste. As related activities and projects are completed through 2020, the EPA, USDA and FDA will ...

    DOL Announces Final Tip Pooling Rule

    On December 22, 2020, the Department of Labor (“DOL”) announced a final rule revising its tipped employee regulations. The final rule is designed to address and incorporate amendments made to section 3(m) of the Fair Labor Standards Act (“FLSA”) by the Consolidated Appropriations Act of 2018 (“CAA”). That amendment prohibits employers from keeping tips received by their employees, regardless of whether the employer takes a tip credit. It also prohibits employers from allowing managers or supervisors to keep any portion of employee’s tips.

    In this final rule, the ...

    Posted in Legal Bites
    What the $900 Billion Stimulus Bill Means for the Food, Beverage and Hospitality Industry

    On December 21, 2020, Congress agreed to a $900 billion stimulus bill, passed as The Consolidated Appropriations Act, 2021 (“the Act”). The 5,593-page Act includes funds designated for direct relief, additional money for forgivable Paycheck Protection Loans and tax relief measures, but does not include funding specifically for restaurants or hotels.

    • Paycheck Protection Program Second Draw Loans: The Act sets aside $300 billion in additional Paycheck Protection Loans. Of that, $15 billion is earmarked for live entertainment venues and $20 billion is set aside for ...
    DOL Inspector General Report Criticizes Agency’s Tip Rule Process

    On December 11, 2020, the U.S. Department of Labor’s Office of the Inspector General (“OIG”) released a report finding that the Department of Labor (“DOL”) did not demonstrate that it followed a sound process in promulgating its 2017 tip rule.

    The DOL published a Notice of Proposed Rulemaking of the 2017 tip rule on December 5, 2017. The 2017 tip rule rescinded portions of the DOL’s 2011 tip regulations under the Fair Labor Standards Act, which were passed by the Obama Administration. In issuing the 2017 tip rule, the DOL stated that the 2011 tip rule incorrectly construed ...

    California Imposes Regional Stay-at-Home Order

    On December 3, 2020, California Governor Gavin Newsom announced a new regional stay-at-home order.

    Under the order, California is divided into five regions: Northern California, Greater Sacramento, Bay Area, San Joaquin Valley and Southern California. Regions where the ICU capacity has gone over 85% will be placed into a Stay-at-Home order for a minimum of three weeks. After the three-week period, reopening of closed services will be based on four-week projections of regional ICU capacity.

    Southern California and three other regions are anticipated to reach 85% or more ICU ...

    App Companies Victorious in Prop 22 Fight

    On November 4, 2020, Uber, Lyft and Door Dash secured a victory in their expensive campaign to categorize app-based drivers as independent contractors. 55% of California voters voted in favor of Proposition 22, which means that app-based drivers will be considered independent contractors, and not eligible for employee benefits or protections.  

    The Lead-Up: California’s Independent Contractor Muddle

    For the past few years, California businesses have reeled from a California court decision and new laws, which dramatically limit the use of independent contractors ...

    LA County Announces New Stay at Home Order November 30-December 20

    Los Angeles County’s Public Health Department announced a new stay at home order, which goes into effect November 30, 2020 and will remain in place until December 20, 2020.

    Under the new order, all public and private gatherings with individuals from more than one household are prohibited, except for faith-based services and protests.

    The order states that restaurants, bars, breweries and wineries remain closed for in-person dining and drinking “because of high rates of transmission in the community.” The order states that one reason for the closure of in-person dining is ...

    LA County Halts Outdoor Dining

    On November 22, 2020, the Los Angeles County Department of Public Health announced that it would be shutting down all outdoor dining for a minimum of three weeks. The order will take effect on Wednesday, November 25 at 10 pm, and will be in place for at least the next three weeks.

    The Public Health Department stated that “new COVID-19 cases remain at alarming levels and the number of people hospitalized continue to increase, the Los Angeles County Health Officer Order will be modified to restrict dining at restaurants, breweries, wineries and bars as the five-day average of new cases ...

    California Announces 10pm Curfew for One Month

    On November 19, 2020, California Governor Gavin Newsom announced a mandatory overnight stay-at-home order. Under the order, Californians in the purple tier of the state’s reopening guidance, which now includes Los Angeles, Orange County, Ventura County and San Diego County, will be prohibited from leaving their homes for nonessential activity from 10pm to 5am. The restriction goes into effect on November 21, 2020 and is scheduled to last until December 21, 2020, although it may be extended.

    The order requires “that all gatherings with members of other households and all ...

    LA County Sets 10pm Curfew, Cuts Capacity for Restaurants, Retail and Offices

    On November 17, 2020, the Los Angeles County Board of Supervisors determined at a closed meeting that it would be setting a 10pm curfew for restaurants, bars, breweries, wineries, non-essential retail businesses and essential offices. These businesses will not be allowed to be open to the public for entry from 10pm to 6am. At this point it is unclear whether this restriction will also apply to takeout and delivery options.

    The LA Times and Daily News reported that restaurants, breweries and wineries operating outdoors will be limited to 50% maximum outdoor capacity. All indoor ...

    More Reopening Rollbacks in California

    On November 16, 2020, California officials pulled an “emergency brake” and announced that the state would be rolling back reopenings in 28 counties across the state. These changes will go into effect on Tuesday, November 17. Los Angeles County has consistently remained in the purple tier, which prohibits indoor dining, closes bars and breweries, and allows malls and retail at 25% capacity.  However, San Diego County, Ventura County and Orange County were in Tier 2 and have now moved into a more restrictive tier.

    Under California’s COVID-19 tier system, Tier 1 ...

    Posted in Legal Bites
    City Moves to Make L.A. Al Fresco Program Permanent

    After the success and positive feedback for its “L.A. Al Fresco” program from customers and restaurant owners, the Los Angeles City Council is moving to make the initiative permanent.

    The L.A. Al Fresco Program was first announced in May 2020, as an initiative to make pandemic restrictions easier for restaurants by streamlining the process for outdoor permits. LA Al Fresco endeavors to help local food purveyors reopen safely and allow customers and employees to maintain physical distancing by temporarily relaxing the rules that regulate outdoor dining. LA Al Fresco allows ...

    Posted in Legal Bites
    No Mask, No Service? 

    On November 9, 2020, the City of Los Angeles adopted an ordinance permitting businesses to refuse entry to anyone entering the premises without a face covering. 

    The ordinance adds Section 200.91 to the Municipal Code, which states: “[a]ny business owner or operator in the City of Los Angeles is authorized to refuse admittance or service to any person who refuses or fails to wear a Face Covering when on the premises of the business or when seeking or receiving service.”

    A face covering is defined as “a face covering that covers the nose and mouth and is secured to the head with ties or ...

    Posted in Legal Bites
    LA County Considers COVID-19 Recovery Charge

    On October 27, 2020, the Los Angeles County Board of Supervisors approved a recommendation to consider allowing restaurants, breweries, and wineries to temporarily charge a “COVID-19 Recovery Charge” for on-site dining.  The motion was proposed by Supervisor Hilda L. Solis.

    In the motion, Supervisor Solis stated: “The COVID-19 pandemic has affected the independent hospitality industry and its workers throughout the county. As of 2019, 8.8% of all workers in Los Angeles County worked in food service establishments & drinking places, employing 398,800 people. This ...

    The Food, Beverage and Hospitality Industry & the Internet: Recent Developments

    Below is a summary of recent developments for the Food, Beverage and Hospitality industry in terms of Internet laws and regulations. To learn more about these issues and how they affect the industry, join us on October 28, 2020 for our Industry Debrief on the CCPA, CPRA, Data Security and Other Risks.

    Consumer Privacy and the CCPA

    In June 2018, California enacted one of the most comprehensive privacy laws in the country, the California Consumer Privacy Act of 2018 (the “CCPA”). The CCPA went into effect on January 1, 2020, and started to be enforced by the California Attorney General ...

    Posted in Legal Bites
    California Imposes Food Safety Requirements on Delivery Apps

    On September 18, 2020, California Governor Gavin Newsom signed AB-3336 into law. This law sets new safety standards for third-party delivery apps, including sanitation and temperature standards. These standards are consistent with the requirements for restaurants and stores, but this is the first time that third-party delivery apps have been specifically required to follow them.

    The law is codified at Section 113930.5 to the Health and Safety Code, which deals specifically with the transportation of food and which applies only to third-party food delivery platforms. 

    The law ...

    Posted in Legal Bites
    LA County Orders Probe of Fast Food Worker Safety

    On October 13, 2020, the Los Angeles County Board of Supervisors voted to investigate the working conditions in the fast-food industry. This motion was proposed by Supervisor Hilda L. Solis, and authorizes a specific probe into complaints at one fast food location, and a larger investigation into industry conditions throughout the county.

    This investigation was prompted by complaints made about a McDonald’s location in Boyle Heights.  SEIU Local 721 issued a letter about working conditions at that location, including inadequate personal protective equipment and infrequent ...

    Posted in Legal Bites
    FDA Announces Virtual Public Meetings on Food Traceability Rule

    The FDA recently announced that it would be holding three virtual public meetings entitled “Requirements for Additional Traceability Records for Certain Foods; Proposed Rule.”

    The purpose of the public meetings is to discuss the proposed rule entitled “Requirements for Additional Traceability Records for Certain Foods,” which was issued under the FDA Food Safety Modernization Act (FSMA).  

    These public meetings are intended to facilitate and support the public's evaluation and commenting process on the proposed rule.  Interested participants are asked to submit ...

    Posted in Legal Bites
    California Enacts New Law Regulating Food Delivery Apps

    On September 24, 2020, Governor Newsom enacted AB-2149, the Fair Food Delivery Act of 2020. The new law prohibits food delivery platforms from arranging for the delivery of food delivery orders without the express authorization of the food facilities. 

    The law amends Business and Professions Code Section 22.4 to state: “[a] food delivery platform shall not arrange for the delivery of an order from a food facility without first obtaining an agreement with the food facility expressly authorizing the food delivery platform to take orders and deliver meals prepared by the food ...

    Posted in Legal Bites
    L.A. County to Reopen Breweries and Wineries

    On September 27, 2020, the Los Angeles Board of Supervisors approved a motion to reopen breweries and wineries by October 6, 2020.  The reopening requires breweries and wineries to abide by strict safety guidelines, including but not limited to: outside operations, limited hours of operation, required reservations, appropriate social distancing, and all appropriate safety measures.  The motion directs the Los Angeles County Department of Public Health to begin with permitting outdoor, reservation-only seating at breweries and then create a plan to increase capacity.

    This ...

    Posted in Legal Bites
    RESTAURANTS Act Added to Updated Stimulus Bill

    On September 28, 2020, Democrats in the U.S. House of Representatives unveiled an updated coronavirus relief stimulus bill (the updated Heroes Act) that includes the RESTAURANTS Act.  The text of the bill is over 2,100 pages.

    Section 607 of the proposed bill incorporates the RESTAURANTS Act, which establishes a $120 billion program administered by the Treasury Department to provide restaurants, bars, food trucks, taprooms, taverns, caterers, taprooms and similar businesses.  

    The grant amount would reflect the difference between the business’s 2019 revenues and ...

    Posted in Legal Bites
    FDA Proposes Rule for Food Traceability

    On September 21, 2020, the Food and Drug Administration announced a proposed rule to establish additional traceability recordkeeping requirements for companies who manufacture, process, pack, or store foods that the FDA has included on its Food Traceability List. This is an effort by the agency to help control outbreaks of foodborne illness.

    The Food Traceability List was first created in 2014 and currently includes: shell eggs, cheeses, nut butters, cucumbers, fresh herbs, leafy greens, melons, peppers, sprouts, tomatoes, fruits and vegetables, bivalve mollusks (oysters ...

    Posted in Legal Bites
    Will The FDA Enforce Its New Nutrition Labeling Rule? 

    On September 18, 2020, the U.S. Food and Drug Administration announced additional flexibility for manufacturers to comply with the agency’s updated Nutrition and Supplement Facts labeling requirements. Those requirements go into effect on January 1, 2021. 

    The Nutrition and Supplement Facts labeling requirement marks a significant change in requirements for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices. The final rule updates the list of nutrients that are ...

    Posted in Legal Bites
    California Enacts COVID-19 Reporting Requirements for Employers

    On September 17, 2020, California Governor Gavin Newsom signed AB-685, which creates new COVID-19 reporting requirements for employers, increases mandatory public disclosure of COVID-19 outbreaks, and expands the powers of Cal/OSHA to cite and shut down employers with worksite infections in a streamlined process.

    The law requires all public and private employers that find out about workplace exposure to COVID-19 to provide written notification to employees and contractors who were on the premises at the same worksite during the infectious period within one business day of ...

    California Enacts Small Business Bills

    On September 9, 2020, California Governor Gavin Newsom signed three bills into law that were designed to provide support for small businesses, including restaurants and other food and beverage companies. 

    SB 1447 authorizes a $100 million hiring tax credit program for qualified small businesses. The hiring credit will be equal to $1,000 for each net increase in qualified employees, up to $100,000 for each qualified small business employer.  To qualify for the credit, the business’ gross income must have declined at least 50% over this time last year.

    AB 1577 excludes Paycheck ...

    California Expands Sick Leave and Mandates Handwashing Breaks for Food Sector Employees

    On September 9, 2020, California Governor Newsom signed AB-1867 as emergency legislation, meaning the law became effective upon his signature, with no waiting period. The law has three distinct parts: it expands California’s supplemental sick leave provisions for food sector workers, creates a new handwashing break requirement for food sector employees, and creates a pilot mediation program for small employers.

    AB-1867 is part of California’s larger effort to fill perceived gaps in paid sick leave mandates due to COVID-19.  In April 2020, Governor Newsom issued Executive ...

    Posted in Legal Bites
    Riverside County First to Implement California Home Cooking Legislation

    In September 2018, the California legislature passed AB-626, The Homemade Food Operations Act. The law was passed with widespread bipartisan support. AB-626 created a framework under which small-scale home cooks could legally sell food made in their kitchens to the public. The law defines a microenterprise home kitchen as a “food facility that is operated by a resident in a private home where food is stored, handled, and prepared for, and may be served to consumers” with no more than one full-time employee. Microenterprise home kitchens could generate up to $50,000 in gross ...

    Posted in Legal Bites
    Made in USA Proposed Rule: FTC Commissioners’ Statements Show Rift as Comment Period Closes

    On June 22, 2020, the Federal Trade Commission issued a proposed Made in USA Rule regulating how businesses can advertise that their products are made in the U.S., and giving the agency discretion to impose civil penalties.

    The FTC’s Made in the U.S.A. enforcement program is based on Section 5 of the FTC Act, which governs deceptive acts and practices in commerce. It applies to a host of advertising and other claims about the U.S. origin of products. In 1994, Congress codified Section 5a, titled “Labels on products”. Section 5a applies to “a product with a ‘Made in U.S.” label ...

    California’s New Reopening Plan

    On August 31, 2020, California introduced a statewide blueprint for reopening during the COVID-19 pandemic designed to provide clear guidance and timelines for which industries may safely open. 

    The new system is color-coded and has four tiers, with Tier 1 being the highest risk of community disease transmission and Tier 4 the lowest risk. The four tiers are based on two factors: (1) the county’s positivity rate; and (2) the daily new cases for each 100,000 residents.

    The tiers are outlined below:

    • Tier 1 (purple/widespread): higher than 8% testing positivity rate; more than 7 daily ...
    Posted in Legal Bites
    LA City Council Extends Delivery Fee Cap

    On August 26, 2020, the Los Angeles City Council unanimously voted to extend the 15% cap on delivery fees charged to restaurants.  The fee cap was originally adopted on June 10, 2020, and was set to expire on August 31, 2020.

    The approved amendment to the Limit on Third-Party Food Delivery Service Fees Ordinance No. 186665 states that “the current sunset date of Aug 31, 2020 be amended to 90 days after restaurants are able to resume indoor dining capacity at 100 percent and that the ordinance would be in effect at any point if the restaurants are required to reduce indoor capacity due to the ...

    Posted in Legal Bites
    “L.A. Al Fresco” Program Extended to End of 2020

    The City of Los Angeles announced that it has extended its “L.A. Al Fresco” program until the end of 2020. The program was designed to help restaurants reopen during the COVID-19 pandemic by offering a streamlined permitting program to turn sidewalks, parking lots, and other spaces into outdoor dining areas.

    Mayor Garcetti announced that 1,486 restaurants have received Al Fresco permits so far, including many small businesses. The most recent stage of the Al Fresco program, which began on June 26, 2020, has directed 55% of program resources to BIPOC (Black, Indigenous, people of ...

    Posted in Legal Bites
    RESTAURANTS Act Gains Momentum

    A bi-partisan bill to aid restaurants is gaining momentum, with over 180 co-sponsors and additional endorsements announced in the past few weeks.  The bill is officially titled the Real Economic Support That Acknowledges Unique Restaurant Assistance Needed To Survive Act of 2020, but is better known as the RESTAURANTS Act of 2020 (“the Act”).

    The Act was introduced on a bipartisan basis in the Senate by Senator Roger Wicker and in the House of Representatives by Congressman Earl Blumenauer. The Act currently has 182 co-sponsors in the House. The National Restaurant Association ...

    Posted in Legal Bites
    FDA Issues New Gluten-Free Labeling Rule

    The FDA recently published a final rule to establish requirements for “gluten-free” labeling for fermented, hydrolyzed and distilled food.  The rule will go into effect on October 13, 2020, with a compliance date of August 13, 2021.

    Federal regulations define the term “gluten-free” to mean that the food bearing the claim does not contain: (1) an ingredient that is a gluten-containing grain; (2) an ingredient that is derived from a gluten-containing grain and that has not been processed to remove gluten; or (3) an ingredient that is derived from a gluten-containing grain and ...

    Nevada Enacts New Hospitality Bill 

    On August 11, 2020, Nevada Governor Steve Sisolak signed Senate Bill 4, which sets new safety standards for the hospitality industry, provides some protections for hospitality workers, and provides for immunity for businesses who comply with statutory requirements. 

    In passing the law, the Governor noted the importance of the travel and tourism industry to the state.  Due to the pandemic, the hospitality industry lost over 130,000 jobs in April and May alone. 

    The law creates new safety requirements for the hospitality industry in Nevada. Public accommodation facilities, which ...

    Los Angeles County Proposes that Employees Report COVID-19 Violations through Public Health Commissions

    On July 21, 2020, the Los Angeles County Board of Supervisors approved a motion to enforce the monitoring of compliance with County health orders by encouraging workers to directly report health code violations through employee “public health councils.” Supervisors Sheila Kuehl and Mark Ridley-Thomas co-authored the motion, which could have a significant impact by placing employees, rather than public health inspectors, at the front lines of enforcing public health orders.

    The Board noted that workplace transmission has been a significant factor contributing to the ...

    Posted in Legal Bites
    USDA Announces New Rule to Fight Organic Fraud

    On August 5, 2020, the Agricultural Marketing Service of the U.S. Department of Agriculture published a proposed rule designed to strengthen the agency’s oversight and enforcement of the production, handling, and sale of organic agricultural products.  Currently, organic products are eligible for a USDA seal, but there have been concerns of fraud due to the complexity of the organic produce supply chain.  For instance, in August 2019, the U.S. Attorney’s Office in Iowa announced that four individuals were sentenced for their role in a $120 million organic fraud scheme, in which ...

    Posted in Legal Bites
    USDA's 2020 Dietary Guidelines

    The U.S. Department of Agriculture released an online-only first print of the Scientific Report of the 2020 Dietary Guidelines Advisory Committee.

    The 2020 Scientific Report has two unique features that are new from previous years. First, the Committee took a “lifespan approach” in reviewing evidence. The Committee reviewed the period from birth to age 24 months and also conducted a review of diet and health issues in pregnancy and lactation. Second, the Committee focuses on dietary patterns based on growing evidence that components of a dietary pattern may have interactive ...

    Los Angeles County Proposes that Employees Report COVID-19 Violations through Public Health Commissions

    On July 21, 2020, the Los Angeles County Board of Supervisors approved a motion to enforce the monitoring of compliance with County health orders by encouraging workers to directly report health code violations through employee “public health councils.” Supervisors Sheila Kuehl and Mark Ridley-Thomas co-authored the motion, which could have a significant impact by placing employees, rather than public health inspectors, at the front lines of enforcing public health orders.

    The Board noted that workplace transmission has been a significant factor contributing to the ...

    Posted in Legal Bites
    New Outdoor Dining Permits Available for LA County Restaurants

    The Los Angeles County Department of Public Works recently released information about its COVID-19 Temporary Outdoor Dining Program. The program is designed for restaurants in unincorporated Los Angeles County that are interested in temporarily expanding dining seating into private walkway and parking lots. More than 2,653.5 square miles or 65 percent of Los Angeles County is unincorporated.

    The Department provides streamlined applications for restaurants interested in offering dining services on a public sidewalk, in the on-street parking area, in a public alley, or on a ...

    Posted in Legal Bites
    Your Food Delivery Worker May Soon Be Certified

    On July 21, 2020, the Los Angeles County Board of Supervisors announced that it would be considering a county-wide requirement for food delivery workers to obtain a food handler certification. The Board noted that food delivery network companies, including Instacart and Uber Eats, are essential businesses during the COVID-19 pandemic, and they rely on independent gig workers. 

    The Motion, put forward by Supervisors Hilda Solis and Sheila Kuehl, sought more information on the feasibility and costs of requiring these workers to obtain a food handler certification in order to ...

    Posted in Legal Bites
    Quick Service Restaurants Required to Make Composting/Recycling Bins Available to Customers for Food Waste

    On July 1, 2020, a 2019 California law requiring restaurants, malls and other businesses to make composting and recycling bins accessible to customers officially went into effect. Full-service restaurants are exempt from the bill if employees sort organic waste. However, quick or limited-service restaurants and all other businesses that generate organic waste and subscribe to recycling or composting services must make bins accessible to customers.

    Assembly Bill 827 mandates that businesses that are already required to subscribe to recycling or composting services under ...

    Posted in Legal Bites
    California’s Single-Use Plastic Bag Ban Is Back

    Governor Gavin Newsom’s temporary suspension of California’s ban on single-use plastic bags at grocery stores was allowed to expire, effectively fully reinstating the ban and requiring grocery stores to charge customers at least 10 cents a bag for plastic bags, and to permit customers to bring reusable bags. 

    Newsom issued an executive order on April 22, 2020 to suspend the state’s 2016 plastic bag ban for 60 days based on concerns about the COVID-19 virus spreading from shoppers bringing reusable bags into grocery stores. The order expired on June 22, 2020. 

    The order suspended ...

    Posted in Legal Bites
    California Closes Bars and Indoor Dining Statewide

    On July 13, 2020, Governor Gavin Newsom announced that restaurants across the state must cease indoor operations.  All bars, both indoor and outdoor, are ordered to close statewide. Restaurants may continue to offer outdoor dining and takeout.  Additionally, all indoor operations at wineries and tasting rooms are ordered to cease. Previously, indoor dining and bars were closed in many of the state’s most populous counties, including Los Angeles.

    In addition to restaurants, the state is ordering thirty counties to close indoor operations at fitness centers, malls, offices for ...

    California Issues Guidance For Restaurants Providing Outdoor Dining, Takeout, Drive-Through and Delivery 

    Adding to an already impressive list of industry specific guidelines, the California Department of Health and the Department of Industrial Relations/Cal-OSHA have issued an Industry Guidance for Restaurants Providing Outdoor Dining, Takeout, Drive-Through, and Delivery. Restaurants are instructed to consult the COVID-19 County Roadmap for more information on reopening in particular counties within the state. In addition, the guidance reminds all business owners that the guidance is not dispositive and that other state and local health orders and guidelines may apply ...

    Reopening Rollback!

    On July 13, 2020, Governor Gavin Newsom announced a significant rollback of California’s reopening and ordered 30 of the most populous counties in the state to cease indoor operations. The order includes closing indoor operations at malls, offices for non-critical sectors, places of worships, hair salons, fitness centers and personal care services. The affected counties as of July 13, 2020 include Los Angeles, San Diego, Ventura, Santa Barbara and Orange. A full list is available here

    Additionally, Newsom issued a statewide order closing indoor operations for restaurants ...

    Posted in Legal Bites
    LA County Cracks Down on Restaurants Violating COVID-19 Health Orders

    On July 7, 2020, the Los Angeles County Board of Supervisors passed a motion to fine LA County businesses, including restaurants, for violations of COVID-19 public health orders, and to shut businesses down for non-compliance in as little as two health inspector visits. The motion was proposed by Supervisors Shelia Kuehl and Janice Hahn. 

    In explaining the urgency of passing the motion, the proposal states: “on the weekend of June 27-28, inspectors found that 49% of bars and 33% of restaurants were not adhering to physical distancing protocols indoors and that 54% of bars and 44% of ...

    Posted in Legal Bites
    FTC Issues Proposed Rule for Made in USA Labeling

    On June 22, 2020, the Federal Trade Commission issued a proposed Made in USA Rule regarding when businesses can advertise that their products are made in the U.S., and giving the agency discretion to impose civil penalties.  The proposed rule has not yet been published in the Federal Register, but the agency has invited businesses to file public comments regarding their feedback.

    Under the Rule, advertisers would be prohibited from making unqualified Made in USA claims unless the following three factors are met.  First, final assembly or processing of the product occurs in the United ...

    Posted in Legal Bites
    California Orders Restaurants to Halt Indoor Dining

    On July 1, 2020, Governor Gavin Newsom ordered restaurants in nineteen California counties, including Los Angeles County, to cease indoor operations for at least three weeks, until July 22, 2020.

    The nineteen counties affected by the Governor’s order represent 70% of the California population. They are Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Merced, Orange, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Barbara, Santa Clara, Solano, Stanislaus, Tulare and Ventura counties.

    In addition to restaurants, the order requires that wineries ...

    Posted in Legal Bites
    Bars, Tasting Rooms and Breweries Ordered to Close

    On June 28, 2020, California Governor Gavin Newsom ordered that bars in seven California counties close. These counties are: Los Angeles, Fresno, Kern, San Joaquin, Tulare, Kings and Imperial. 

    The state has also recommended, but not ordered that eight other counties issue local health orders closing bars: Contra Costa, Santa Clara, Sacramento, Riverside, San Bernardino, Ventura, Santa Barbara and Stanislaus.

    The order and recommendations are a result of an increase in new cases and hospitalizations across the state.

    Following the order, the Los Angeles County Department of ...

    Business Interruption Insurance Coverage: A Guide for Restaurants

    Restaurants whose operations have been shut down due to the coronavirus crisis are looking to their business interruption or business income insurance policies for relief, and have found resistance from insurance companies paying these claims.

    As a general matter, in order to trigger coverage those policies require (1) direct physical loss or damage; (2) to covered property: (3) arising from a covered peril; and (4) resulting in the suspension of the business’ operations.

    In cases where coverage is triggered, an insured business may be entitled to recover the net income it would ...

    Posted in Legal Bites
    California Legislature Advances Bill to Regulate Food Delivery Platforms

    California’s legislative season is in full swing, and the California State Assembly and State Senate are advancing bills that will affect the food, beverage, and hospitality industry, with a focus on the restaurant industry.

    State legislators have shown an interest in regulating food delivery platforms. Several cities, including San Francisco and Los Angeles, have capped delivery fees that these platforms, including Grubhub, Door Dash, Uber Eats and Postmates, can charge restaurants at least for the duration of the COVID-19 pandemic.

    Concerns have also been raised by ...

    Posted in Legal Bites
    “L.A. Al Fresco” Program Launched

    The City of Los Angeles has launched an “L.A. Al Fresco” Program aimed at helping restaurants reopen while following COVID-19 physical distancing guidelines. 

    The program will allow restaurants to use their sidewalk and private parking lots spaces to increase their outdoor dining capacity.  Through the program, the City will offer streamlined, immediate approval for eligible restaurants to provide outdoor dining in sidewalks and private parking lots.  The approval will also allow restaurants to serve alcohol in these areas.

    L.A. Al Fresco was launched on May 29, 2020 and the ...

    Posted in Legal Bites
    LA City Council Caps Delivery Fees at 15%

    On June 3, 2020, the Los Angeles City Council adopted an ordinance capping third-party food delivery services fees at 15% for the duration of the COVID-19 public health emergency. The ordinance will become part of the City’s Municipal Code.

    The new ordinance makes it unlawful for a third-party food delivery service to charge a restaurant a fee per online order of more than 15% of the purchase price of the order. The ordinance is designed to protect the restaurant industry during the COVID-19 pandemic, when dine-in was prohibited. The ordinance is set to expire 90 days after the ...

    Subscribe

    Recent Posts

    Blogs

    Contributors

    Archives

    Jump to PageX
    Close

    ECJ uses cookies to enhance your experience on our website, to better understand how our website is used and to help provide security. By using our website you agree to our use of cookies. For more information see our Privacy Policy and our Terms of Use.