Debating dairy alternatives in NYC

On March 22, 2018, Nigel Barrella participated in a panel discussion hosted by the New York City Bar Association’s Animal Law Committee.

The event, entitled “Say It Ain’t Soy! The Labeling of Plant-Based Alternative Foods,” was prompted by the increased attention to plant-based alternative foods, and dairy alternatives in particular. Nigel gave a presentation in favor of regulatory flexibility, arguing that it is only common sense for producers to use the same natural language that consumers use.

Also presenting were Lori Barrett-Peterson, an attorney with the New York City Law Department, who gave an overview of the history of milk regulation in New York and the United States; as well as Lorraine Lewandrowski, an attorney and dairy farmer in upstate New York, who presented perspectives shared by many dairy producers. Bari Wolf, of the law firm Vernon & Ginsburg LLC, moderated the discussion.

The entire event is available on YouTube (part 1part 2part 3part 4), and in audio form.

Earlier this year, on behalf of the Good Food Institute, Nigel filed a friend-of-the-court brief in a class-action lawsuit alleging that almond milk is a misbranded food. And last year, also for GFI, Nigel submitted a citizen petition urging FDA to clearly affirm its policy of flexibility in labeling new foods, and to reject calls for anticompetitive regulation from certain members of industry. These matters are still pending.

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Briefing on almond milk labeling

On March 9, 2018, on behalf of the Good Food Institute, Nigel Barrella submitted an amicus (friend-of-the-court) brief in Painter v. Blue Diamond Growers, a lawsuit alleging that Blue Diamond’s almond milk is misbranded under federal law. Attorneys for the plaintiff have argued that almond milk should be labeled “imitation milk.” The district court judge had rejected this argument, and the plaintiff appealed that ruling to the Ninth Circuit Court of Appeals.

In the brief, GFI argues that the Food Drug and Cosmetic Act’s “imitation” provision was not intended to reach distinct products like almond milk, and that the history of FDA’s regulation confirms this. GFI also argues that the plaintiff’s reading of the law leads to absurd results and could even be unconstitutional.  You can read the full brief here.

You can also read the other briefs in this case: Painter’s Opening Brief, Blue Diamond’s Brief, and Painter’s Reply Brief.

One unusual aspect of this case is that the plaintiff did not agree to GFI’s intervention, which forced GFI to file a motion for leave to file the brief. For more information, see that motion, the plaintiff’s opposition, and GFI’s reply. As is the practice of the Ninth Circuit, the panel deciding the case will also decide whether GFI’s brief should be filed and considered by the panel.

A decision in the case is anticipated next year. This post may be updated.

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Petitioning FDA for flexibility

On March 2, 2017, Nigel Barrella, on behalf of his client the Good Food Institute, submitted a citizen petition to FDA. The petition notes the proliferation of new, innovative foods in the marketplace, and requests that FDA formally acknowledge its policy of allowing new foods to be named in a natural, commonsense way that consumers understand.

The petition particularly addresses the increasing variety of plant-based foods, including dairy alternatives such as soy milk, almond milk, soy yogurt, and so on. Some voices in the dairy industry have asked FDA to adopt anticompetitive policies towards these products — regulating the language that these products use in order to thwart consumer understanding and connote inferiority. The petition describes how this would lead to confusion, and is inconsistent with hundreds of products already on the market. Additionally, the petition notes that this attempt to regulate natural language would likely be unconstitutional under the First Amendment.

The petition is open for public comment online. For more information, contact Nigel.

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Presentation on free speech and labeling

On October 30, 2015, Nigel Barrella presented at the Food and Drug Law Institute’s “Constitutional Challenges” Symposium. His article, Constitutional Limits on Compulsory Labeling, is to be published in the Food and Drug Law Journal later this year.

The article is a comprehensive review of how courts have handled First Amendment challenges to mandatory labeling laws (particularly in the food and drug context). Increasingly, businesses have been using the First Amendment to object to labeling requirements, but courts (while taking the issue seriously) have rarely invalidated compulsory labeling requirements involving factual information. In the article, Nigel describes which challenges to labeling laws are most viable, and which are not.

A draft version of the article is available here. If you would like a copy of the final, published version, contact Nigel.

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