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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Defending due process in the DC Court of Appeals

On September 21, 2017, a panel of the DC Court of Appeals ruled unanimously in favor of Nigel Barrella’s client, who had been convicted of driving with a revoked license, even though the DC DMV never sent him notice of the revocation. Nigel had argued his client’s case before the court in October 2016.

In this case, the DC government had argued that because operating after revocation is a so-called “strict liability” crime, it did not matter whether the DMV had sent him notice that they were revoking his license, or whether he received that notice. The government maintained that all it had to prove for a conviction was that his license was revoked and that he was driving in DC.

Nigel argued that the regulations required the DMV to send notice, and that due process (i.e. the Fifth Amendment to the Constitution) also requires it. The Court of Appeals agreed that the DMV’s regulations required them to send notice, and the court also held that failure to receive notice could be treated as a defense to operating after suspension or revocation.

In future cases when motorists are charged with this crime, the DMV should be prepared to prove that they provided notice of their action revoking or suspending the license. DMV regulations already required record-keeping of notices sent to motorists.

Anecdotes from many motorists suggest that the DC DMV frequently has not been sending notices in the manner required by regulation. Going forward, the Court’s ruling creates an important incentive for the DMV to carry out its duties in a manner consistent with due process.

Bottom line: if the DC DMV does not send notice to motorists, it should not expect to be able to prosecute the motorists who are (unknowingly) driving without a valid license. That’s not just common sense anymore — it’s the law.

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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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To err is human — not a crime

On March 17, 2016, a panel of the DC Court of Appeals delivered a unanimous decision in favor of Nigel Barrella’s client. Nigel had argued this case before the court on September 22, 2015.

In this case, Nigel’s client had been charged with missing his court date, though he testified that he had made a simple mistake — getting the court date confused. And although the trial judge appeared to believe his excuse, she also believed the law required a guilty finding. The government had argued that he was guilty simply because he did not double-check to make sure what his court date was.

Rejecting the government’s argument, the Court of Appeals reversed. The law at issue makes “willful” violations a crime, and the court made clear that “willful” means “knowing, intentional, and deliberate” — not inadvertent or accidental. After clarifying the law, the court sent the case back to the trial judge for reconsideration.

Subsequently, on August 11, 2017, the trial judge entered a verdict of not guilty.

Going forward, this precedential ruling of the Court of Appeals helps reinforce a bedrock principle of criminal law: the government should be required to prove criminal intent (with rare, limited exceptions). Innocent mistakes should not be the stuff of criminal prosecutions.

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