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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Non-residents doing business in DC

If you own a non-resident (or “foreign”) company and want to do business in DC, you probably have to register with the DC government.

This applies to all corporations (including professional corporations), limited partnerships and LLPs, and LLCs. Unincorporated entities (like sole proprietorships or general partnerships) do not have to register.

There are a few exceptions to the registration requirement, which you can find in the DC Code here. Most significantly, if you are just engaging in an isolated transaction in DC and will not be doing other transactions in the ordinary course of your business, you do not have to register.

Foreign companies doing business in DC must file a report every two years.  They also need to maintain a registered agent in the District who can receive legal process on their behalf.

For more information on registering as a foreign entity, visit DCRA’s website, or contact Nigel for a free consultation about your business’s legal needs.

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