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Judge Dismisses Subway 100% Tuna Lawsuit For Now

A federal judge earlier this month dismissed a misrepresentation lawsuit against Subway Restaurants, Inc. and multiple affiliates concerning the sandwich maker’s claims regarding its tuna. Plaintiffs Karen Dhanowa and Nilima Amin filed a putative class action complaint in the Northern District of California alleging that Subway committed fraud and violated several California consumer statutes by claiming, among other things, that its tuna fish products were “100% tuna” and contained “100% skipjack and yellowtail tuna.” Notably, the first amended complaint ...

HHS Issues Guidance on HIPAA Privacy Rule and COVID-19 Vaccinations

On September 30, 2021, the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights issued guidance to help the public and employers understand what privacy rules apply to disclosures and requests for information about whether a person has received a COVID-19 vaccine.

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a Privacy Rule that regulates covered entities, including health plans, health care clearinghouses and health care providers. According to HHS, “The HIPAA Privacy Rule establishes national standards to ...

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California Passes AB-286, Further Regulating Food Delivery Platforms

On October 5, 2021, Governor Newsom approved AB-286, which adds further regulations for food delivery platforms. The law will take effect on January 1, 2022. Last year, California passed the Fair Food Delivery Act of 2020 (AB-2149), which prohibits food delivery platforms from arranging for the delivery of food delivery orders without the express authorization of the food facilities, and which went into effect on January 1, 2021.

This bill makes it unlawful for a food delivery platform to charge a customer any purchase price for food or beverage that is higher than the price posted on ...

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FTC Sends Notice of Penalty About False Endorsements

On October 13, 2021, the Federal Trade Commission (“FTC”) circulated a Notice of Penalty Offenses (“Notice”) to over 700 companies. These companies included as recipients of the Notice are large companies, advertising agencies and consumer product companies. 

The Notice places the companies on notice that they could incur civil penalties of up to $43,792 per violation if they use endorsements in ways that are precluded by the FTC’s prior administrative cases.

The FTC’s vote to authorize the Notice and its wide distribution was unanimous.

The Notice states that ...

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FDA Issues New Sodium Guidelines

On October 13, 2021, the U.S. Food and Drug Administration (“FDA”) released new voluntary guidance aimed at reducing average daily sodium intake by 12 percent over the next 2.5 years. The guidance sets voluntary target mean sodium concentrations and upper bound sodium concentrations for 163 food categories, including prepared foods, cheeses, sauces, frozen meals and baby food.

The FDA stated that the guidance “is intended to provide measurable voluntary short-term (2.5-year) goals for sodium content in commercially processed, packaged and prepared foods to reduce ...

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California Enacts Three Restaurant Relief Measures

On October 8, 2021, Governor Newsom approved three restaurant relief measures. These measures will affect outdoor dining and the ABC license process.  All three measures received bipartisan support and were supported by restaurant advocacy groups.

AB 61: Business Pandemic Relief

AB 61 authorizes the California Department of Alcoholic Beverage Control (“ABC”) to permit restaurants to serve alcohol in an expanded license area. The bill would also authorize the ABC to extend the period of time during which the COVID-19 permit is valid beyond 365 days if the licensee has applied ...

LA County Proof of Vaccine Requirements Take Effect

Today, October 7, 2021, Los Angeles County Public Health Officer Order’s vaccine requirements go into effect. These requirements were first announced as an executive order of the Public Health Officer and were ratified by the Los Angeles County Board of Supervisors on September 15, 2021.

Under these requirements, proof of vaccination or a negative test result will be required to enter outdoor mega-events, and proof of at least one dose of the COVID-19 vaccine will be required to enter or work in indoor portions of bars, lounges, nightclubs, breweries, wineries and distilleries in ...

Los Angeles Adopts Sweeping Vaccine Mandate

On Wednesday, October 6, 2021, the Los Angeles City Council voted 11-2 to approve a new ordinance that requires proof of a COVID-19 vaccination to enter indoor restaurants, shopping centers, movie theaters, hair and nail salons, and a wide variety of other indoor venues. Grocery stores and pharmacies are not included in the ordinance. If religious or medical exemptions are given to an individual, proof of a negative COVID-19 test taken within 72 hours is needed for the individual to enter an indoor space. The ordinance will go into effect on November 4, 2021.

Because the ordinance ...

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Ninth Circuit Holds that the Dynamex ABC Test Applies Retroactively, But Not Prop. 22

On September 20, 2021, the Court of Appeals for the Ninth Circuit reversed Grubhub, Inc.’s lower court victory in a class action case involving the alleged misclassification of a former driver. The driver claimed he was misclassified as an independent contractor and asserted claims for minimum wage, overtime and expense reimbursement. The lower court denied class certification and entered a judgment in favor of Grubhub in February 2018. In so doing, the court applied the multi-factor Borello test to assess whether the driver qualified as an independent contractor. The judge ...

LA City Council Moves Towards Sweeping Vaccine Requirements

On September 29, 2021, the Los Angeles City Council debated a sweeping proof-of-vaccine requirement, with most Councilmembers indicating support. The ordinance will likely be passed upon its second reading next Tuesday.

The ordinance would require customers to show proof of full COVID-19 vaccination status to enter a wide variety of public spaces, including restaurants, coffee shops, gyms and fitness venues, movie theaters, shopping malls, concert venues and personal care establishments.

The City’s proposed rules would expand Los Angeles County’s existing ...

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Two Restaurant Relief Bills Pass California Legislature and Await Governor’s Signature

Two restaurant relief measures have cleared the California State Senate and Assembly with bi-partisan support. The bills were both enrolled on September 13, 2021, and now await Governor Newsom’s signature.

AB-61: Business Pandemic Relief

AB-61 authorizes the California Department of Alcoholic Beverage Control (“ABC”) to permit restaurants to serve alcohol in an expanded license area. The bill would also authorize the ABC to extend the period of time during which the COVID-19 permit is valid beyond 365 days if the licensee has applied for permanent expansion of their ...

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USDA Solicits Public Comment on Labeling Meat and Poultry Products Derived from Animal Cells

On September 2, 2021, the U.S. Department of Agriculture’s Food Safety and Inspection Service (“FSIS”) published an advanced notice of proposed rulemaking to solicit comments from the public regarding the labeling of meat and poultry products made using cultured cells derived from animals. FSIS stated that it would use those comments to make further regulatory requirements.

FSIS also asked for economic data and consumer research to help increase its understanding of the animal cell culture technology industry and related issues regarding labeling and consumer ...

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SBA Announces Changes to EIDL Program, Including Cap Increase to $2M

On September 9, 2021, the Small Business Administration (“SBA”) announced several changes to its Economic Injury Disaster Loan (“EIDL”) Program. 

The changes include:

  • Increasing the COVID EIDL Cap to $2M. The SBA will lift the COVID EIDL cap from $500,000 to $2 million. Loan funds can be used for any normal operating expenses and working capital, including payroll, purchasing equipment and paying debt.
  • Deferred Payment Period. Small business owners will not have to begin COVID EIDL repayment until two years after loan origination. The SBA stated that this change was ...
LA County Announces Proof-of-Vaccine Requirements for Bars and Large Outdoor Events

On September 15, 2021, the Los Angeles County Board of Supervisors announced that proof of a COVID-19 vaccination will be required at indoor bars, wineries, breweries, nightclubs and lounges in Los Angeles County. This requirement will be announced in a Department of Public Health Order.

The order will recommend, but not require, vaccine verification for employees and customers in indoor portions of restaurants.

The Los Angeles County mandate will also apply to employees of covered establishments and require that both employees and customers have at least one vaccine dose by ...

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FTC Announces Expansion of Compulsory Process Resolutions to Eight Areas

On September 14, 2021, the Federal Trade Commission (“FTC”) voted 3-2 to approve new compulsory process resolutions in eight areas.

Compulsory process refers to the issuance of demands for documents and testimony, through the use of civil investigative demands and subpoenas. The FTC Act authorizes the FTC to use compulsory process in its investigations, which requires the recipient to produce information, and these orders are enforceable by courts.

According to the press release, the “resolutions announced today will broaden the ability for FTC investigators and ...

West Hollywood Imposes Vaccine Verification Requirement

On September 10, 2021, the City of West Hollywood issued an Emergency Executive Order (the “Order”) implementing vaccine verification requirements for some businesses throughout the City. The West Hollywood City Council first discussed vaccine mandates for businesses in a July 21, 2021 meeting.

The Order mandates restaurants, bars, nightclubs, health and fitness facilities, and personal care establishments to require all patrons ages 18 and older to show proof that they are fully vaccinated before entering any indoor portions of a facility. Additionally, business ...

President Biden Issues COVID-19 Vaccine Mandate on Federal and Private Employers

On September 9, 2021, President Biden signed two Executive Orders imposing sweeping new vaccine mandates on federal workers and contractors. This new mandate represents a shift in the White House’s policy on vaccinations, which had previously offered an alternative to those who wish to remain unvaccinated by allowing those individuals to wear masks while on federal property as long as they submitted to regular screening for COVID-19.

All federal employees, contractors and subcontractors employed by the federal government shall be required to provide proof of vaccination ...

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California Legislature Passes AB-286 Third-Party Delivery Platform Law

On September 1, 2021, the California State Assembly joined the California State Senate in passing Assembly Bill 286, which will regulate food delivery platforms throughout the state. The bill passed with bipartisan support in both chambers, with a 55-8 vote in the Assembly on September 1, and a 27-8 vote in the Senate on August 23, 2021. The bill was introduced in January 2021 and now awaits Governor Newsom’s signature.

There are three main aspects of the bill: (1) it prohibits third-party platforms from charging more than the price set by the food facility; (2) it makes it unlawful for ...

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Ninth Circuit Decertifies Class in Coca-Cola False Advertising Case

On August 31, 2021, the Court of Appeals for the Ninth Circuit issued an unpublished order revoking class certification of a consumer class in a Coca-Cola labeling case. The plaintiffs alleged that Coke’s advertising slogan of “no artificial flavors, no preservatives added since 1886” was misleading because Coke contains phosphoric acid.

This decision reversed a class certification order from a California federal judge. The court held that the plaintiffs lacked standing to pursue injunctive relief because they had failed to demonstrate harm and thus had not adequately ...

LA County Issues Mask Mandate for Large Outdoor Events

On August 17, 2021, the Los Angeles County Department of Public Health announced a mask mandate for large outdoor mega-events of more than 10,000 people. This is the first outdoor mask mandate since the County began its reopening attempt on June 15, 2021.

All attendees at those events must now wear face masks at all times, except when actively eating or drinking. Event operators are required to prominently include information about the mask mandate throughout the event and on communications to guests. The County also has a recommendation (but not a mandate) that all attendees at ...

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Food Label Modernization Act of 2021 Introduced in House and Senate

On August 4, 2021, Democratic Senators Richard Blumenthal, Sheldon Whitehouse and Ed Markey; and Democratic Representatives Frank Pallone, Jr. and Rosa DeLauro introduced the Food Labeling Modernization Act (“FLMA”) in both houses of Congress. Versions of this bill were introduced in 2015 and 2018, but were unsuccessful.

The press release announcing the new legislation touted it as “an effort to help consumers select healthy products.” The legislation would direct the Secretary of Health and Human Services (“HHS”) to establish a single, standard ...

L.A. City and County Consider Vaccine Requirement for Public Spaces

On Wednesday, August 11, 2021, the Los Angeles City Council approved a motion to require people to have at least one dose of the COVID-10 vaccine before being admitted to public spaces, including restaurants, entertainment venues and retail stores. 

The motion states: “the City Council instruct[s] the City Attorney to prepare and present an ordinance that would require eligible individuals to have received at least one dose of vaccination to enter indoor spaces, including but not limited to, restaurants, bars, retail establishments, fitness centers, spas and entertainment ...

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Attempts to Restore the Restaurant Revitalization Fund Falter

While Congress has expressed bipartisan support for replenishing the depleted Restaurant Revitalization Fund (“RRF”), it has not been able to take action to do so. There are currently two bills pending to replenish the funds, and on August 7, 2021, a group of Senators attempted to add $48 billion to the RRF through a unanimous consent, which failed. The uncertain status of the RRF leaves hundreds of thousands of restaurants in limbo. This is particularly true of the approximately 3,000 priority applicants, who were approved for RRF grants and later notified that the SBA could ...

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SBA Drops Loan Necessity Questionnaire for PPP Loans

On July 29, 2021, the Small Business Administration (“SBA”) updated its guidance to address borrower and lender questions about the implementation of the Paycheck Protection Program (“PPP”).

The SBA announced that it was discontinuing use of the Loan Necessity Questionnaire (SBA Form 3509 or 3510) (the “Questionnaire”). The Questionnaire sought additional information for borrowers seeking loans of $2 million or more, including a liquidity assessment and business activity assessment.

Eighty-two organizations, including the National Restaurant ...

Reminder: Businesses Must Enforce Reinstated Los Angeles County COVID-19 Mask Requirements

Keeping current on the frequent changes to COVID-19 business requirements can be very challenging. The return to indoor masking requirements on July 17, 2021, in Los Angeles County has been widely publicized. Even so, Los Angeles businesses may not be aware that the county is currently enforcing the indoor masking requirements through onsite inspections of county businesses. 

In fact, during the short period between July 17, 2021 and July 23, 2021, Los Angeles County reports that its Department of Public Health inspectors visited 1,013 restaurants, 9 bars, 222 food markets, 22 ...

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Ninth Circuit Affirms California’s Proposition 12 Pork Ban

On November 6, 2018, California voters passed Proposition 12. The law is set to go into effect on January 1, 2022. Among other things, the law “prohibits a business owner or operator from knowingly engaging in the sale within the state of shell eggs, liquid eggs, whole pork meat or whole veal meat, as defined, from animals housed in a cruel manner.”

The National Pork Producers Council and the American Farm Bureau Federation filed a district court action seeking declaratory and injunctive relief on the ground that California’s Proposition 12 ban on the sale of whole pork meat (no ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

FAST Act (AB-257) Narrowly Defeated

On June 3, 2021, AB-257, the Fast Food Accountability and Standards Recovery Act (the “FAST Act”) was defeated in the California Assembly, coming up three votes short of the 41 votes needed. 

The FAST Act would have established a Fast Food Sector Council (the “Council”), comprised of 11 members appointed by the Governor, Speaker of the Assembly and Senate Rules Committee. Under the proposed bill, that Council would have been tasked with conducting a full review of the adequacy of fast food restaurant health safety and employment standards, and establishing industry-wide ...

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FTC Announces July 1 Open Meeting

On June 24, 2021, the Federal Trade Commission (“FTC”) announced that it would be holding the first of a series of open meetings. Members of the public are invited to listen to the FTC’s discussion and submit public comment.

The initial agenda includes the following:

  • Made in the USA Rule: The FTC will vote on whether to finalize the Made in the USA Rule.
  • Section 18 Rulemaking Procedures: The FTC will vote on whether to streamline the procedures for Section 18 rules prohibiting unfair or deceptive acts or practices.
  • “Statement of Enforcement Principles Regarding ‘Unfair ...
DOL Proposes New Tip Credit Rule

On June 23, 2021, the U.S. Department of Labor published a Notice of Proposed Rulemaking to limit the amount of non-tip producing work that a tipped employee can perform when an employer is taking a tip credit. 

According to the DOL, the proposed rule “clarifies when an employee is working in a tipped occupation and when a worker has performed such a substantial amount of non-tipped labor that an employer can no longer take a tip credit and must pay the full federal minimum wage to the worker.” 

Under the proposed rule, if a tipped employee spends either more than 20 percent of their ...

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Ninth Circuit Rejects Proposed False Advertising Settlement Agreement Seeking Disproportionate Attorneys’ Fees

Earlier this month, the Ninth Circuit reversed approval of a class action settlement, finding several indications that the proposed settlement was the result of collusion between the parties and did not adequately serve the class. The case, Briseño et al. v. ConAgra Foods Inc., Case No. 19-56297 (9th Cir.), originally filed in 2011, centers around allegations that defendant ConAgra Food Inc., then-owner of Wesson Oil, falsely advertised its oil as “100% Natural” when in fact the oil contained ingredients made from GMOs.

After several years of litigation, plaintiffs ...

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FDA Issues Final Rule on Yogurt Standard of Identity

On June 11, 2021, the FDA issued a final rule to amend the standard of identity for yogurt. The rule will become effective on July 12, 2021. 

A standard of identity describes in detail what a food product must contain, how it must be proportioned and in some cases how it must be manufactured. The FDA has more than 280 standards for a wide variety of food products.  As part of the FDA’s Nutrition Innovation Strategy, the agency has been considering standards of identity and particularly looking to revoke or update standards when they are inconsistent with modern manufacturing processes or ...

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Ninth Circuit: Trader Joe’s Chicken Labeling Claims Federally Preempted

On June 4, 2021, a panel of judges from the Ninth Circuit Court of Appeals affirmed the dismissal of consumer poultry labeling claims against Trader Joe’s on the ground that those claims were federally preempted. The consumer claims alleged that Trader Joe’s labels on poultry were misleading under California law because they had different percentages of retained water than was displayed on their labels. 

Poultry labeling, including a retained water data collection process and label production, are regulated by the federal Poultry Products Inspection Act (“PPIA”) and the ...

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LA County Moves from Temporary to Permanent Outdoor Dining

On Tuesday, June 8, 2021, the Los Angeles County Board of Supervisors approved a motion to establish permanent guidelines for outdoor dining and move from the temporary pandemic authorizations to a long-term plan.

The motion requested several L.A. County agencies to work together to establish permanent Countywide guidelines for expanded options for outdoor dining spaces. This includes new guidelines for public sidewalks, alleys, and private on-site and off-site parking facilities.

The Board also asked those agencies to develop a plan to transition all restaurants that have ...

California Announces Rules for June 15 Reopening; Cal/OSHA Reconsiders Employer Requirements

On June 9, 2021, the California Department of Public Health announced a new face coverings guidance that will go into effect statewide on June 15, 2021. In addition, Governor Newsom’s office announced that on June 15, 2021, California would be fully reopen with no capacity limits or distancing required by the state. The county-by-county color tier system will also be eliminated. However, individual county health departments may continue to impose restrictions under local public health orders.

Under the State’s new guidance, fully vaccinated persons are not required to wear ...

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FDA Announces $134M Budget Increase for FY 2022

On June 7, 2021, the FDA released its Fiscal Year 2022 budget request, outlining key investments for food safety. The request details how the FDA plans to use funds in FY 2022 to support food safety and nutrition. The budget provides increases to core food safety programs and outlines emerging issues of concern for the agency.

The agency’s FY 2022 Budget provides $1.6 billion in budget authority for food safety, an increase of $134 million from the previous year.

The agency’s press release states: “[o]f the increase of $134 million for food safety activities, $45 million is for ...

Cal/OSHA Issues Modified COVID-19 Regulations

On June 3, 2021, the California Occupational Safety & Health Standards Board approved new modified COVID-19-related emergency regulations. The new modified regulations, which are found here, will need to be approved by the state Office of Administrative Law within ten days. The OAL is expected to approve the rules.

When approved, the new regulations will become effective on June 15, 2021, the same day on which Governor Newsom announced California would reopen. These regulations may be further refined in the coming weeks to take into account changes in circumstances, especially as ...

California Extends ABC Regulatory Relief

On June 3, 2021, California Governor Gavin Newsom announced the extension of some pandemic alcohol measures designed to help restaurants and bars. The press release states: “The Administration today extended relief measures that permit restaurants and bars to continue to benefit from their investments to expand outdoor operations in areas such as sidewalks and parking lots, and to continue the sale of to-go alcoholic beverages with food deliveries, among other successful pandemic adaptations. In addition, the Administration is urging local governments to facilitate ...

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Proposed Grubhub False Advertising Settlement Challenged By Plaintiffs In Competing Lawsuit

A proposed class action settlement pending in the District Court of Colorado involving Grubhub, Inc. has been called into question by would-be intervenors from a similar action against Grubhub pending in the Northern District of Illinois. The Colorado case, CO Craft LLC dba Freshcraft v. GrubHub Inc., Case No. 1:20-cv-01327 (D. Colo) was filed by plaintiff Freshcraft on May 11, 2020, alleging a single cause of action against Grubhub for violation of the Lanham Act. Freshcraft alleges that Grubhub falsely advertised on its platform that certain restaurants not partnered with ...

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FDA Announces Intended Consumer Research on "Healthy" Claims

On May 6, 2021, the FDA issued a procedural notice on the preliminary quantitative consumer research it plans to conduct on symbols that could be used in the future to convey the nutrient content claim “healthy.”

This research is part of the FDA’s Nutrition Innovation Strategy, which seeks to reduce the burden of nutrition-related chronic diseases and to modernize claims. By using a symbol for a nutrient claim, the goal would be for consumers to have a quick signal about what benefits a food or beverage they choose might have.

As part of its efforts to promote public health, FDA ...

California Expands Business Relief Grants

On May 13, 2021, California Governor Gavin Newsom announced an expansion of the state’s COVID-19 Small Business Relief Grant program from $2.5 billion to $4 billion. The expansion makes California’s business relief grants program the largest in the country.

To date, 198,000 businesses have received grants under the program, for a total of $475,001,244. While the application portal is currently closed, it is expected to reopen after the new grant's funds have been processed. The Governor’s office announced the following initiatives for businesses:

  • Estimated $895 ...
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McCormick Poised to Settle “Natural” Spices Case for $3 Million

Parties in another false advertising case surrounding the use of the term “natural” have filed for preliminary approval of a class action settlement. On May 7, 2021, the plaintiff in Megan Holve v. McCormick & Company, Inc., Case No. 6:16-cv-06702-FPG asked a Federal Judge in the Western District of New York to preliminarily approve the parties’ proposed class action settlement to resolve the nearly five-year-old litigation.

Originally filed back in October 2016, plaintiff Holve, purporting to act on her behalf as well as on behalf of both a nationwide class and New York ...

California To Wait Until June 15, 2021 To Adopt the CDC’s New Mask Guidelines

On May 17, 2021, California’s Secretary of Health and Human Services, Dr. Mark Ghaly, announced that California would begin following the U.S. Centers for Disease Control and Prevention (the “CDC”)’s new guidelines regarding the lifting of mask restrictions for fully vaccinated individuals on June 15, 2021. These new guidelines provide that those who are fully vaccinated against the COVID-19 virus no longer need to wear masks outdoors or in most indoor settings.

After serving as one of the major epicenters for the COVID-19 virus in the United States in the beginning of this ...

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City Inches Towards Making L.A. Al Fresco Program Permanent

On May 12, 2021, the Los Angeles City Council (the “Council”) took the first step towards making the popular L.A. Al Fresco outdoor dining program permanent. The Council voted 14-0 to approve a motion that directs various city agencies to issue reports with recommendations on how to transition the program to permanent status.

The Council instructed the Bureau of Engineering and Los Angeles Department of Transportation to “report in 60 days with recommendations to revise the Sidewalk Dining Program and the People St. Program, as appropriate, to expeditiously transition all ...

CDC Loosens Mask Mandate for Fully Vaccinated People

On May 13, 2021, the U.S. Centers for Disease Control and Prevention (the “CDC”) issued new guidance lifting mask restrictions for fully vaccinated individuals. Under the new guidance, people who are fully vaccinated may stop wearing masks or maintaining social distance in most outdoor and indoor settings. 

The CDC’s summary of changes states that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and ...

California Assembly Bill No. 80: Tax Treatment of Forgiven Paycheck Protection Program Loans

Our previous articles have summarized the Paycheck Protection Program (“PPP”) created under the Federal CARES Act: CARES Act: Paycheck Protection Program Loans, CARES Act: Loan Applications, CARES Act: Loan Forgiveness Applications and Consolidated Appropriations Act: Additional Paycheck Protection Program Loans.

This post provides information regarding California Assembly Bill No. 80 (the “Bill”), which conforms California tax law to Federal tax law on PPP loans.

The Bill received bi-partisan support, passing the California Assembly with a vote of 75-0 and ...

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California Supreme Court Signals the End for Rounding Meal Break Time

As technology has advanced, employers routinely rely on electronic timekeeping software to ensure accurate record keeping. Such software often includes a setting to round employees’ time (typically to the nearest quarter hour) and is implemented as a result of either deliberate company policy or through inadvertent default. Regardless, employers should review these policies and settings following the California Supreme Court’s recent decision in Donohue v. AMN Services, LLC.

In Donohue, the Court unequivocally held employers may no longer round an employee’s in and ...

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FTC Announces New Enforcement Actions for COVID-19

In April 2021, the Federal Trade Commission (“FTC”) emphasized its commitment to protecting consumers from unsubstantiated claims of products advertised to prevent, treat or cure COVID-19. On April 29, 2021, the FTC announced an additional set of warning letters related to these types of claims. The FTC has now sent nearly 400 warning letters in ten sets to companies and individuals. According to the agency, “In the letters, the FTC states that one or more of the efficacy claims made by the marketers are unsubstantiated because they are not supported by scientific evidence ...

LA County to Move into Yellow Tier

On Wednesday, May 5, 2021, the Los Angeles County Public Health Department (the “Department”) is expected to issue a new Public Health Officer order to officially move into the least restrictive “yellow tier” of California’s color-coded reopening system. The criteria for entering the yellow tier is less than 2% positivity and fewer than 1 daily new case per 100,000 county residents. The Order would be effective on Thursday, May 6, 2021.

On April 30, 2021, the Department made some modifications to the Public Health Order, lifting hours limitations on bars, breweries and ...

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The Increasing Popularity of Ghost Kitchens Raises Questions Over Restaurant Brands’ IP Protections

Since the inception of the pandemic, “ghost kitchens” – or shared commercial spaces which host multiple restaurant brands only serving food via delivery or takeout – have presented a surprising silver lining for both restaurateurs and commercial real estate owners alike. For commercial real estate owners, ghost kitchens present an invaluable opportunity to market real estate spaces that have otherwise lost value with the decline in brick and mortar retail. For restaurateurs, ghost kitchens provide significant savings on the rent and labor costs associated with a ...

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Federal Food Bills – Proposed Changes for the Food Industry

During the first quarter of 2021, various federal bills were introduced which impact the food industry. This article provides a primer on some of these bills and their potential impact on the food industry.

The Food Allergy Safety, Treatment, Education and Research (FASTER) Act (S.578), introduced by Senator Tim Scott on March 3, 2021, later passed by both the Senate and House of Representatives, and signed into law by President Biden on April 26, 2021:

  • The FASTER Act requires companies to declare the presence of sesame on food packaging labels by January 1, 2023 and was introduced and ...
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Restaurant Revitalization Fund Opening May 3

On April 27, 2021, the Small Business Administration ("SBA") announced that the much-anticipated Restaurant Revitalization Fund would be opening on May 3, 2021 at 9 am PST/12 pm EST. Restaurant operators may register through the SBA’s RRF portal beginning on Friday, April 30 at 6 am PST/9 am EST.

The SBA will host two webinars on Tuesday, April 27 and Wednesday, April 28 covering the Restaurant Revitalization Fund program details and how to submit an application. The two webinars will cover the same content. Registration is available here. The webinars are limited to the first ...

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LA Mayor Proposes Measures to Help Restaurants

On Monday, April 19, 2021, Los Angeles Mayor Eric Garcetti delivered his 2021 State of the City speech and announced several initiatives designed to assist restaurants. 

The proposals for restaurant relief included in Garcetti’s speech include:

  • $25 million program to write Comeback Checks of $5,000 to 5,000 small businesses.
  • A proposed ordinance to cut the time for alcohol permit approval for restaurants by 90% and to cut the cost of that permit by 70%.
  • Allowing restaurants to defer city fees of $8,000 or more for a three-year period.
  • Suspension of valet and off-site parking ...
California Enacts COVID-19 Right of Recall Law in Certain Sectors

Governor Newsom has signed into law Senate Bill 93, a state-wide right of recall, intended to assist California workers in sectors that have been especially hard hit by the COVID-19 pandemic. This new law, which is similar to earlier Los Angeles County and Los Angeles City COVID-19 ordinances, goes into effect immediately and will remain in effect through December 31, 2024. 

California’s new right of recall law applies to certain hotels, private clubs, event centers, airport hospitality operations and providers of janitorial, maintenance or security services to office, retail ...

Los Angeles County Revises Restaurant Protocols and Announces Live Event Rules

On April 17, 2021, the Los Angeles Department of Public Health (“Department”) revised its protocol for restaurants to permit increased activities in light of the County’s Orange Tier reopening.

The changes include:

  • Allowing restaurants to have live outdoor entertainment. Live entertainment operations are allowed outdoors only.  Performers must be at least 12 feet away from seated customer groups.
  • Allowing restaurants to host private events when the restaurant is not operating for regular business. Private events are subject to a separate protocol and restaurants ...
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SBA Releases Restaurant Revitalization Program Guidelines

On Saturday, April 17, 2021, the Small Business Administration (“SBA”) released its much-anticipated guidelines for the Restaurant Revitalization Fund.

On April 13, 2021, during a town hall with the Independent Restaurant Coalition, SBA associate administrator Patrick Kelley stated that the program was not robust enough to serve all eligible applicants and urged administrators to apply on the first day the program opens. He suggested that a demonstration of strong demand could lead to Congress opening additional funding for the program.

Eligible Entities

Eligible ...

IRS Issues Guidance on Business Meal Deductions

On April 8, 2021, the Treasury Department and the Internal Revenue Service issued guidance regarding the temporary 100-percent deduction for food and beverage purchased from restaurants.

Beginning January 1, 2021, through December 31, 2022, businesses can deduct 100% of their food or beverage expenses paid to restaurants if the business owner (or an employee of the business) is present when food or beverages are provided, and as long as the expense is not lavish or extravagant under the circumstances.

The guidance defines eligible restaurants to include businesses that ...

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Ninth Circuit Dismisses “100% Natural” Chicken Advertising Case

The Ninth Circuit recently affirmed a district court decision dismissing a case for lack of standing, finding that an advocacy group must demonstrate that it affirmatively diverted resources to combat alleged false claims to maintain standing in a false advertising litigation.

The case, Friends of the Earth, et al. v. Sanderson Farms, Inc., Case No. 3:17-cv-03592 (N.D. Cal.), was originally filed by multiple advocacy groups in 2017 against Sanderson Farms, Inc., a poultry farming company.  Plaintiffs alleged that defendant violated both the California False Advertising Law and ...

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FDA Announces Actions on Leafy Green Safety

On April 6, 2021, the U.S. Food and Drug Administration (“FDA”) announced agency actions to advance the safety of leafy greens.

First, the FDA announced that it was releasing a report of its investigation on the Fall 2020 outbreak of E. coli linked to the consumption of leafy greens. The report found that the outbreak, which caused 40 reported domestic illnesses, was linked via whole-genome sequencing (WGS) and geography to outbreaks traced back to the California growing region associated with the consumption of leafy greens in 2019 and 2018. The FDA investigated the outbreak ...

California Announces Full Reopening on June 15

On April 6, 2021, California Governor Gavin Newsom announced a plan to lift all COVID-19 virus restrictions by June 15, 2021. The full reopening is contingent on both (1) sufficient vaccine supply to ensure that all Californians age 16 and over who wish to be inoculated are able to do so and (2) stable and low hospitalization rates. The full reopening would mean an official end to California’s color-coded tier system.

It remains unclear what restrictions may remain under the full reopening but Governor Newsom specified that some form of mask mandate will remain. The California ...

LA County Moves to Orange Tier Reopenings on April 5

Both Los Angeles and Orange County are now eligible to move from the Red Tier into the Orange Tier of COVID-19 reopening guidelines under the state’s Blueprint for a Safer Economy. 

On March 30, 2021, the Los Angeles County Public Health Department announced that while it satisfied the numbers requirement to move into the Orange Tier, it would wait until April 5 to permit businesses to operate at increased capacity.

On April 5, Los Angeles County will officially adopt Orange Tier reopening rules to the Public Health Officer Order. Under these new rules, the following changes will take ...

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Plaintiffs Look To Finalize $13 Million Settlement In Added Sugar Consumer Class Action

Parties in an added-sugar class action pending in the Northern District of California are taking another shot at obtaining preliminary approval of a settlement reached between the parties. The case, Stephen Hadley et al. v. Kellogg Sales Co., Case No. 5:16-cv-04955, originally filed in 2016, alleges that Kellogg violated several California and New York laws by marketing many of their cereals with deceptive health and wellness claims that mask the cereals’ high added sugar content.  Plaintiffs specifically target roughly a dozen of Kellogg’s cereals. The challenged ...

SB 95: California Provides Supplemental Paid Sick Leave for COVID-19

On March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 providing a new form of COVID-19 related paid sick leave for many California workers. The law will become effective on March 29, 2021, and applies retroactively to sick leave taken beginning on or after January 1, 2021. All California employers with more than 25 employees and in-home supportive services providers are required to provide the supplemental sick leave benefits to employees. The law will remain in effect through September 30, 2021.

SB 95 provides for COVID-19 supplemental paid sick leave for ...

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Los Angeles County Eases Up on COVID-19 Citations

On March 16, 2021, the Los Angeles County Board of Supervisors (the “Board”) revised its protocol for issuing fines to businesses violating the County’s COVID-19 protocols, reversing course. These protocols were implemented in August 2020 at the Board’s direction, and have led to fines and temporary closures for a number of restaurants.

In July 2020, the Board passed a motion directing the Department of Public Health (the “Department”) to take stricter enforcement measures to ensure greater levels of compliance with COVID-19 safety protocols.  In August 2020, the ...

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FDA Releases Food Safety and Nutrition Survey Results

On March 16, 2021, the Food and Drug Administration (“FDA”) released the results of its 2019 Food Safety and Nutrition Survey (“FSANS”). FSANS is designed to assess consumers’ awareness, knowledge, understanding and reported behaviors relating to a variety of food safety and nutrition-related topics.

Among the key findings of FSANS, the FDA reported

  • Most consumers are familiar with the Nutrition Facts label – 87% of respondents have looked at the Nutrition Facts label on food packages. The top four items that consumers look for on the label are: Calories, Total ...
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LA County’s New Reopening Rules for Businesses

On March 15, 2021, Los Angeles County officially entered into the state’s Red Tier, permitting restaurants to offer limited capacity indoor dining, and permitting gyms, museums and galleries to open some indoor operations. The County issued several reopening protocols laying out the rules for businesses with the current reopening.

Dining

The County’s Department of Public Health issued a revised Public Health Order for Dining Protocols (the “Order”) with new protocols for indoor dining, outdoor dining and worker safety in light of the reopening.

Indoor Dining

With ...

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Judge Approves $15M Settlement in Added Sugar Consumer Class Action

On February 24, 2021, a judge in the United States Court for the Northern District of California preliminarily approved a $15 million class-action settlement for Post Foods, based on the case Debbie Krommenhock et al. v. Post Foods, LLC, Case No. 3:16-cv-04958-WHO, which concerns representations made by Post Foods LLC in the labeling and advertising of several popular cereal brands, including Honey Bunches of Oats and Raisin Bran.

Plaintiffs Debbie Krommenhock and Stephen Hadley filed a class action complaint against Post in August 2016 alleging that Post violated California ...

L.A. County Red Tier Reopening Imminent

On March 11, 2021, the Los Angeles County Department of Public Health (the “Department”) announced an anticipated reopening of certain activities between March 15 and March 17, as L.A. County moves to the lower risk Red Tier of the state’s reopening plan. The exact date of the reopening will depend on when the County hits the threshold of 2 million vaccine doses being administered to people in the most under-resourced communities across the County.

The following activities will be permitted next week after L.A. County moves to the Red Tier:

  • Museum, zoos and aquariums can open ...
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Bi-Partisan Group of California Lawmakers Push Bar And Restaurant Recovery Act

On February 4, 2020, California State Senator Scott Weiner, who represents San Francisco and parts of San Mateo County, introduced Senate Bill 314, the Bar and Restaurant Recovery Act (the “Act”), to modernize the bar and restaurant industry and provide more flexibility to facilitate the economic recovery of the industry from the impacts of the COVID-19 pandemic.

The Act’s goal is to help the bar and restaurant industry bounce back from the pandemic by reducing the red tape, lengthy turnaround times and permit redundancies of the industry in order to provide more economic ...

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American Rescue Plan with Restaurant Relief Poised for Passage

The American Rescue Plan Act (“the Act”) was passed by the Senate on March 6, 2021, and is now headed for ratification by the House of Representatives and signature by President Biden. The $1.9 trillion stimulus includes over $25 billion earmarked as direct aid to restaurants.

Restaurant Revitalization Fund

Section 6003 of the Act establishes a Restaurant Revitalization Fund, to be administered by the Administrator of the Small Business Administration. The Restaurant Revitalization Fund includes $25 billion earmarked for restaurant Revitalization Grants. The Act ...

Appeals Court Upholds Expired Outdoor Dining Ban

On March 1, 2021, the Court of Appeal, Second Appellate District ruled in favor of the Los Angeles County Department of Public Health (the “Department”) officials who halted outdoor dining in November 2020 during a spike in COVID-19 cases.

After the Department announced a ban on all outdoor dining, the California Restaurant Association (“CRA”) filed a lawsuit. State Court Judge James Chalfant initially ruled in favor of the CRA on December 8, 2020, and held that the Department acted arbitrarily and failed to perform the required risk-benefit analysis before issuing the ...

California Passes Pandemic Relief Measures Aimed at Supporting Business

On February 23, 2021, California Governor Gavin Newsom signed a legislative package of six bills providing relief to individuals and businesses experiencing hardship due to the COVID-19 pandemic. Some of these measures are directly targeted towards the restaurant and hospitality industry.

Small Business Grant Relief

The new measures provide $2.1 billion in small business grants of up to $25,000. This is a significant increase over the $500 million that was initially approved for these grants in November 2020.

Grants are available only for businesses and nonprofits with gross ...

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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

Employer Reminder: Minimum Wage Increases for 2021

On January 1, 2021, the California minimum wage increased to $14.00 per hour for employers with at least 26 employees and $13.00 per hour for smaller employers. The state minimum wage also governs the exempt employee threshold salary, which has increased accordingly. The new minimum salary for employees who otherwise qualify to be exempt from overtime is $58,240 annually for employers with at least 26 employees and $54,080 annually for employers with fewer than 26 employees. 

Further, several California municipalities will raise their minimum wage rates on July 1, 2021. Employers ...

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 ...

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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 ...

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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:

    New Lawsuits Challenge State COVID-19 Measures

    A lawsuit has been filed against Cal/OSHA regarding its recently instituted regulations requiring employers to adopt numerous COVID-19 measures. In addition, a separate suit was filed against Governor Newsom for the outdoor dining ban that is part of recent COVID-19-related regional restrictions. 

    Specifically, the National Federation of Independent Business (NFIB) teamed with the National Retail Federation and three NFIB small business owner members to sue the California Division of Safety and Health (Cal/OSHA), the California agency that recently instituted extensive ...

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    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 ...

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    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 ...

    Judge Issues Preliminary Injunction Against Los Angeles County Outdoor Dining Ban

    Yesterday Judge James Chalfant issued a preliminary injunction against Los Angeles County’s outdoor dining ban on the basis that the county acted arbitrarily and failed to perform the required risk-benefit analysis. The case was brought by the California Restaurant Association and Mark Geragos to challenge the outdoor dining ban imposed by the November 30th Los Angeles County stay-at-home order.

    The Court held that L.A. County was required to perform a complete risk-benefit analysis before enacting the ban and that it failed to do so. The Court’s ruling noted that the L.A ...

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    Cal-OSHA Issues Mandatory Emergency COVID-19 Regulations

    On November 30, 2020, Cal-OSHA’s proposed temporary COVID-19-related emergency regulations became effective. The new regulations, which are found here, will remain in effect until October 2, 2021, unless they are extended.

    The new regulations apply to most California employees, only excluding employees working from home, an employee at a site where the employee does not have contact with others and employees covered by Cal-OSHA’s Aerosol Transmissible Diseases standard (applies to certain healthcare facilities and labs).

    Under the new regulations, employers must ...

    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 ...

    CDC Announces Alternatives to 14-Day COVID-19 Quarantine

    Today, December 2, 2020, the United States Centers for Disease Control and Prevention (CDC) announced alternatives to the 14-day recommended quarantine for those exposed to COVID-19.

    For individuals exposed to COVID-19 who have not experienced symptoms, the CDC advises that quarantine can now end after 10 days if no COVID-19 test is taken, or after 7 days with a negative COVID-19 test.

    However, the CDC advises continued monitoring of symptoms for the full 14 days after exposure to the virus "especially if quarantine is discontinued early."  The CDC also recommends the full 14-day ...

    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 ...

    AB 2257: California Rewrites Independent Contractor Law…Again

    As promised, Governor Newsom signed Assembly Bill 2257 which effectively rewrites Assembly Bill 5, the flawed law which sought to codify and clarify the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court and took effect on January 1, 2020.  AB 2257 became effective upon signature.

    At approximately 14 pages in length, neither employees nor employers are likely to find AB 2257 any less confusing than its predecessor.  It does, however, make it easier for several categories of professions to work as independent contractors if certain conditions are ...

    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 ...

    New Law Extends Workers' Compensation Benefits To COVID-19 Victims

    Governor Newsom has signed Senate Bill 1159, a law that effectively codifies and expands his earlier Executive Order N-62-20, which had expired on July 5, 2020. Effective immediately, this bill defines “injury” for an employee to include illness or death resulting from COVID-19 under specified circumstances. In particular, the employee must have tested positive for or was diagnosed with COVID-19 within 14 days after the employee performed services at the employee’s place of employment and the work must have been performed on or after March 19, 2020, and on or before July 5 ...

    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
    Grocery Stores and Restaurants Taking a Bite Out of Climate Change and Food Waste

    Save the planet and feed the children? No, these are not the aspirations of a beauty contestant but the objective of legislation that was passed in the Golden State.  In 2016, Governor Jerry Brown signed into law SB 1383. The law is designed to fight climate change by aiming to reduce methane gas emissions produced by organic waste in landfills by 75 percent by 2025.  The law provides regulation changes necessary to reduce food waste by implementing programs to recover food that would otherwise be thrown away and getting it to organizations that help fight hunger.  The target aims to recover ...

    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 ...

    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 ...

    Posted in Legal Bites
    FDA Permits Temporary Flexible Food Labeling

    Food manufacturers are playing a crucial role during the COVID-19 crisis by supporting various essential businesses and keeping products on the shelves for consumers. The pandemic has disrupted their day-to-day operations and required new protocols for sanitation, social distancing in the workplace, and the distribution of products that are high in demand. Additionally, food manufacturers are required to comply with strict labeling regulations designed to keep consumers fully informed about the contents of their food. These regulations required that manufacturers alter ...

    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 ...

    Los Angeles County Issues Reopening Protocols for Non-Essential Businesses

    Los Angeles County issued protocols that the non-essential businesses listed below must follow in connection with reopening. 

    Prior to reopening, each of these businesses must implement and complete the applicable protocol found below, and post a copy of the completed protocol at all public entrances to its facility.

    Additionally, each protocol requires certain signage be posted to alert the public about various COVID-19 safety measures that must be followed, and that similar information be included on the business website.  In some cases, businesses must communicate to their ...

    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 ...

    Los Angeles City and County Issue Dine-In Restaurant Guidelines for Reopening

    On Friday, May 29th, both the City of Los Angeles and the County of Los Angeles announced that dine-in restaurants are permitted to reopen. Both the city and county have also issued guidelines for restaurants to follow in the reopening of their dine-in operations.

    The County of Los Angeles’ protocols for the reopening of on-site dining for restaurants and other permanent retail food operations are found here.

    At this time, bars are not permitted to reopen except for food take-out orders, but they are covered in the city’s guidelines for planning purposes. Further, the State of ...

    Los Angeles County Announces Dine-In Restaurants, Hair Salons and Barbershops May Reopen

    Today, May 29, 2020, the County of Los Angeles announced that it will move further into Phase 2 reopening by permitting dine-in restaurants, hair salons and barber shops to reopen.  This decision came after the County learned it received a variance from the State of California to allow this action. Los Angeles County has moved at a much slower pace than most California counties due to its higher number of COVID-19 cases and deaths.

     Los Angeles County also announced it will be posting new restaurant guidelines later today.  Restaurants may open for in-house dining when the County posts ...

    Governor Newsom Relaxes California Guidelines for Business Reopening

    On Monday, May 18, 2020, Governor Gavin Newson announced relaxed state guidelines for Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The relaxed guidelines would permit 53 of California’s 58 counties to move into Phase 2 reopening. However, with its higher infection and death rate, it is not expected that Los Angeles County will be ready for Phase 2 in the immediate future. 

    Instead of the prior guideline of having no deaths within the last 14 days, under the new state guidelines, COVID-19 hospitalizations cannot increase more than ...

    In Case You Missed It: New State Guidelines For Reopening Dine-In Restaurants, Offices and Malls

    This week Governor Newsom announced new guidelines for the Phase 2 reopening of dine-in restaurants, offices, outdoor museums, shopping centers and malls. The date for reopening of these establishments will be determined by the COVID-19-related circumstances of the county in which the business is located. To reopen dine-in restaurants, offices and malls, a county must receive a variance from the state, through self-certification and state approval. 

    Specifically, a California county seeking to start Phase 2 must prove to the state: that it has no new COVID-19 case per 10,000 ...

    Los Angeles County Issues New Order Permitting Certain Businesses To Reopen

    On Wednesday, May 13, 2020, Los Angeles County issued an updated “Safer at Home” order that amends and supersedes prior Los Angeles County Health Officer orders. The new order is intended to partially move Los Angeles County into the second stage of reopening businesses.

    The businesses now permitted to reopen can do so only for curbside, door side, or other outdoor or outside pick-up, or delivery.  Members of the public cannot be permitted inside these businesses.  Businesses permitted to open on this basis are retailers not located in indoor malls or shopping centers, and ...

    Proposed Fair Scheduling Act of 2020 Will Impose Fines and Additional Pay for the Failure to Provide Advance Notice of Worker Schedules

    Senate Bill 850, also referred to as the Fair Scheduling Act of 2020, would require grocery stores, restaurants and retail stores to provide employees with 21-day work schedules, at least seven calendar days in advance.

    Employers must pay a worker not exempt from overtime a “modification pay” for each previously scheduled shift that the employer cancels or moves to another date or time, each previously unscheduled shift that the employer requires an employee to work, and for each on-call shift for which an employee is required to be available but is not called into work.  If less ...

    California Court of Appeal Agrees Employer Does Not Have To Pay For Shoes...This Time

    Krista Townley was a server at BJ’s Restaurants, Inc. As a server, Townley was required to wear black, slip-resistant close-toed shoes pursuant to company policy.  Townley purchased a pair of canvas shoes that complied with the policy.  She was not reimbursed by BJ’s. What happened next?  You guessed it: Townley filed a class and representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) which sought civil penalties on behalf of herself and other "aggrieved employees" for Labor Code violations.

    In her lawsuit, Townley claimed that an ...

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