USA - Mississippi Joins States Enacting Stricter Labeling Requirements for Food Products Developed from Animal Cell Cultures

On July 1, Mississippi legislators passed a bi-partisan bill to prohibit certain animal-derived food products from being labeled as “meat” or a “meat food product.” While Senate Bill 2922 also imposes the same new restriction on plant-based and insect-based food products, its passage was driven at least in part to address recent developments in biotechnology that allow the growth of animal-derived food products in laboratories, rather than from livestock raised on farms and ranches. Specifically, SB 2922 amends Mississippi state law to prohibit meat labeling for any “plant-based” or “insect-based” food products, together with food products containing “cultured animal tissue produced from animal cell cultures outside the organism from which it is derived.” Its passage in Mississippi follows similar regulatory action in other states over the last year, including Arkansas, Missouri, Louisiana, and Wyoming.

Cell-cultured animal products – also referred to as “clean meat” or “cell-cultured meat” – are developed by scientists from a biopsy of a living or recently slaughtered animal in a sterile laboratory environment. These cells are then grown into products that mimic meat products in taste, texture, and aesthetics. Scientists have begun to differentiate and mature cells to resemble traditional meat products such as hamburgers, chicken nuggets, steak, and fish while reducing reliance on, and in some cases replacing, modern animal agriculture and industrial production practices.

Mississippi’s latest action was immediately followed by a lawsuit filed in federal court by several public interest groups. Led by the Institute for Justice, Upton’s Naturals Co., and the Plant Based Food Association, the complaint was filed in the U.S. District Court for the Southern District of Mississippi on July 1, 2019, alleging that Mississippi’s new law places an unconstitutional limitation on freedom of speech under the First Amendment. In their complaint, plaintiffs focus on the labeling of plant-based products, rather than clean meat products. A similar legal action was brought in August 2018 against Missouri’s meat labeling restrictions; it remains pending as of this date.

Alan Sachs and Sarah Kettenmann

Beveridge & Diamond's Biotechnology and Pesticides Regulation practice group and Biotechnology and Pesticides industry groups help clients develop and commercialize newer, safer, and petter ways of achieving plant vitality, pest control, and animal breeding. We help companies address cutting-edge issues where agriculture, livestock, pesticides, and biotechnology converge with the law. For more information, please contact the authors.

Big Food and Plant-Based Protein: Potential MEATing of the Minds?

Capitalizing on an increasingly health and environmentally conscious era, plant-based meat substitute companies are positioning themselves as the future of protein. On May 2, 2019, Beyond Meat became the first plant-based product company to go public. Its stock skyrocketed to become the highest performing first-day public offering in nearly two decades. Impossible Foods is also performing well. While the company is in no rush to go public, they just secured $300 million in their latest funding round.

In light of these recent successes, the meat industry is grappling with how to address the new food phenomenon. With the long-term viability of the alternative meat market yet to be seen, traditional meat companies are taking both an offensive and defensive approach.

Many Big Food companies view cell-based meat as an opportunity rather than a liability. Taking the “if you can’t beat ’em, join ’em” approach, these companies are integrating plant-based protein investments into their own portfolio. For example, Tyson was an early investor in Beyond Meat. Tyson recently sold its 6.52% stake in the company, but Tyson is still fully committed to competing in the plant-based protein space. Tyson announcedthat it plans to launch an “alternative protein product” with market testing as early as this summer. The fact that Tyson is a household name synonymous with meat could impede its ability to build brand loyalty in the alternative meat space. That said, the producer’s well-established distribution networks and manufacturing facilities will enable them to hit the ground running—an advantage that start-up companies in the emerging market necessarily lack.

Simultaneously, however, the meat industry is taking active measures to hedge against what, on its face, appears to be an impending threat of market erosion.

The meat industry is also lobbying for laws banning any non-slaughterhouse-derived protein product from being labeled “meat.” Last year, Missouri was the first state to formally do so. Lawmakers in 17 states—including Arkansas, Kentucky, Mississippi, North Dakota, South Dakota, and Wyoming—have followed suit. Laws in Montana, Georgia, Nebraska, and Oklahoma are also on the horizon.

Legislators and meat industry lobbyists are touting these laws as necessary consumer protection measures. Not surprisingly, proponents of plant-based meat disagree and are fighting back against legislation they say is aimed to protect cattle and livestock producers’ bottom line. Tofurkey, the Good Food Institute, the American Civil Liberties Union of Missouri, and the Animal Legal Defense Fund are challenging the Missouri law on constitutional grounds. Jessica Almy, director of policy for the Good Food Institute believes that the appeal should put other states on notice “that there are significant constitutional problems with these laws” because labeling is a form of “commercial speech, which is protected as long as it’s truthful.” The constitutional issue has yet to be resolved.

If Big Food is on board as a champion of plant-based protein rather than an opponent, the future for the protein industry certainly looks bright. But, it appears—at least for the time being—that meat alternative companies will have their work cut out for them as they navigate a newly developing (and often times conflicting) patchwork of state laws designed to stifle their marketing efforts. These uncertainties will continue to trigger disputes about what producers (that often operate in multiple states) can say about their products without misleading consumers, and just how far states can go to regulate commercial speech.

    

EU - Dual Food Quality: Commission releases study assessing differences in the composition of EU food products

Today [24.6.2019], the Commission published the results of a pan-European testing campaign of food products showing that some products are identically or similarly branded while having a different composition.

Analysing nearly 1,400 food products in 19 EU countries, the study, carried out by the Commission’s in-house science and knowledge service, the Joint Research Centre, shows that 9% of the compared products differed in composition, although the front-of-pack was identical.

A further 22% of products with a different composition had a similar front-of-pack. The study did not show a consistent geographical pattern.

Based on the new methodology developed, national competent authorities will now be able to perform the case by case analysis required to determine misleading practices prohibited under EU consumer law. The study thus supports the work initiated by the Juncker Commission to address the issue of dual quality of products through different initiatives. 

Tibor Navracsics, Commissioner for Education, Culture, Youth and Sport, responsible for the Joint Research Centre, said: "Some Europeans feel branded food products they buy are different, perhaps worse, compared to those available elsewhere. The Commission called on our scientists to help objectively assess the extent of such differences on the single market. The results are mixed: while I am happy that they found no evidence of an East-West divide in the composition of branded food products, I am worried that they uncovered up to one third of tested products having different compositions while being identically or similarly branded.”

Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, said: "There will be no double standards in Europe’s single market. With the new laws penalizing the dual quality and strengthening the hands of the consumer authorities, we have the tools at hand to put an end to this practice. European consumers will be able to do their shopping in full trust that they buy what they see.”

Main findings

The study assessed 1,380 samples of 128 different food products from 19 Member States. The sample is, however, not representative of the vast diversity of food products on the EU market. The study found that:

• In the majority of cases, the composition matched the way products were presented: 23% of products had an identical front-of-pack and an identical composition, and 27% of products signaled their different composition in different EU countries with a different front-of-pack.
• 9% of products presented as being the same across the EU had a different composition: they had an identical front-of-pack, but a different composition.
• A further 22% of products presented in a similar way had a different composition: they had a similar front-of-pack, yet a different composition.
• There is no consistent geographical pattern in the use of the same or similar packaging for products with different compositions. Moreover, the difference in the composition found in the products tested do not necessarily constitute a difference in product quality.

Commission action on this issue

Since the President of the Commission, Jean-Claude Juncker, has been addressing the issue of dual quality of products in his State of the Union Address in 2017, the European Commission has taken forward different initiatives by:

• clarifying when dual quality of products is a misleading practice through legislation under the recently agreed New Deal for Consumers;
• establishing a common methodology for the testing of food products;
• issuing a set of guidelines to help national authorities apply EU consumer and food legislation;
• dedicating over €4.5 million to solve this issue;  
• testing products across the EU with the same methodology to get a better understanding of dual quality of goods.

Next steps

The European Commission launches today a new call for proposals with a total budget of €1.26 million to strengthen consumer organisations’ capacities to test products and identify potentially misleading practices. The deadline for applications is 6 November 2019.

Background

According to EU legislation, marketing a  good as identical to one marketed in another Member States while that good has a significantly different composition or characteristics which cannot be justified by legitimate and objective reasons could unfairly and illegally mislead consumers.

The study, conducted by the Commission’s Joint Research Centre, describes the situation found on the markets of the nineteen participating Member States during the period the survey was carried out (November-December 2018). The testing campaign was part of the European Commission's response to concerns about dual quality foods. The products were selected based on Member States’ suggestions, following complaints to consumer protection authorities or associations.

Testing was based on a harmonised methodology developed in cooperation with Member States by the Joint Research Centre. This methodology allows for comparable sampling, testing and data interpretation across the EU. All EU Member States were invited to collect information regarding the composition of the selected food products offered on their markets. Nineteen EU Member States submitted information on 113 branded and 15 private label products. As a first step, this analysis is based on information from the product labels and the front-of-pack appearance of the products.

The report published today will provide a better basis for the discussion of dual quality in the EU. However, further steps and research are needed to make the assessment more representative, and to better understand the link between composition and quality.

The Member States that participated in the survey were: Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Spain and The Netherlands.

EU Directive on Unfair Trading Practices in B2B in the Agricultural Food Supply Chain

On 9 April the EU Council formally approved the directive and the legislative act was signed on 17 April 2019.  EU member states will have 24 months to introduce the new rules into national legislation. This will therefore be the next big stage in policing the agricultural and food supply chain; even if Brexit takes place this year then all trade with the EU will be ultimately governed by this for agricultural and food producers.

The Directive 2019/633  highlights the that whilst risk is inherent in all economic activity, agricultural production is particularly fraught with uncertainty due to its reliance on biological processes and that differences in bargaining power means a minimum standard of protection against certain manifestly unfair trading practices should be introduced.  

It was agreed that Unfair Trading Practices (UTPs) occur throughout the food supply chain with smaller operators more vulnerable to these practices due to weaker bargaining power compared to larger operators. The Directive distinguishes between two types of trading practices. Those that may be unfair in nature, but may be acceptable if clearly agreed by the parties, and become unfair only when applied without agreement such as: late payment for perishable foods; short notice cancellation of orders of perishable foods, unilaterally and retroactively changing the terms of the supply agreement and having a supplier pay for the wastage of food products on the buyer’s premises not caused by the negligence or fault of the supplier.  Further additional trading practices would be prohibited unless agreed in clear and unambiguous terms in the supply agreement; such as, returning unsold food products to the supplier, charging the supplier for stocking, displaying or listing their products by the buyer, charging the supplier for the promotion of products sold by the buyer and charging the supplier for the marketing of products by the buyer.

A directive rather than a regulation provides some discretion for member states whilst providing an EU wide framework.  

Member states would be obliged to designate a public authority charged with enforcing the rules. This body would be able to conduct investigations and impose fines in case of proven infringements. The enforcement authorities of member states would have to cooperate with each other and the Commission would facilitate this cooperation and manage a website for the exchange of information. The Directive allows individual Member States to introduce stricter rules designed to combat unfair trading practices than those laid down in the Directive to ensure a higher level of protection.

By Jessica Burt

https://www.food-law-blog.co.uk/2019/06/what-next-for-the-agricultural-food-supply-chain-update-on-grocery-code-adjudicator-and-the-eu-direc.html

CI BEVIAMO UNO “YOGA”?

La decisione del 02/04/2019 (resa nel procedimento di opposizione n. B 2 994 823) ha riconosciuto che il marchio YOGA gode di notorietà nella Comunità Europea per “succhi di frutta”.

Che il marchio YOGA, nato in Italia intorno agli anni 50 e da allora utilizzato intensamente ed ininterrottamente, fosse un marchio noto, lo sapevamo tutti, quindi niente di nuovo sotto il sole…

….o no?

Purtroppo non è per niente automatico che certe situazioni di fatto siano riconosciute giuridicamente.

Perché questo accada, occorre che vi sia un conflitto e che questo conflitto sfoci in una decisione o in una sentenza di un organo amministrativo o giurisdizionale. Spesso (oggi, almeno in questo settore, sempre di più) i conflitti vengono risolti in sede stragiudiziale (a seguito di diffide o alcune volte con accordi di coesistenza) ed è sempre più raro che si abbia l’occasione di portare un giudice ad emettere un provvedimento.

Se poi consideriamo che l’Ufficio Europeo (che ha emesso la decisione in questione) fa un’applicazione molto rigida del principio di “economia procedimentale”, portare lo stesso a pronunciarsi su di un argomento che implica un dispendio procedimentale notevole, è cosa particolarmente ardua….eppure ci siamo riusciti!

Partiamo dall’economia procedimentale: il primo ostacolo per giungere ad una pronuncia di questo genere.

Questo principio fa sì che l’EUIPO possa giudicare un’opposizione sulla base del “motivo giuridico più efficace” ossia, per riportare quanto prevedono le linee giuda dell’EUIPO stesso, “l’impedimento che offre all’Ufficio il modo più semplice per respingere la registrazione della domanda”.

Il principale motivo di conflitto tra marchi è dato dalla somiglianza tra gli stessi e dalla identità o affinità dei loro prodotti o servizi: la domanda di marchio viene respinta quanto tale situazione è idonea a fare sì che il consumatore dei medesimi possa confondere un marchio con l’altro. Si parla di “rischio di confusione”.

Il rischio di confusione è un motivo facilmente accertabile, in quanto per verificare la sussistenza dello stesso l’EUIPO applica principi giuridici e non deve (in linea di massima) analizzare documentazioni di fatto.

La notorietà del marchio è invece un motivo di opposizione che richiede accertamenti di fatto copiosi ed un’analisi delle motivazioni che li supportano molto più articolata.

La notorietà ha anche presupposti diversi.

Occorre sì che i marchi in conflitto siano identici o simili.

Non occorre però che i prodotti siano identici o affini, in quanto, se il marchio viene riconosciuto come notorio, avrà la possibilità di contrastare anche prodotti o servizi “non simili” a quelli dallo stesso rivendicato.

Inoltre, il rischio che il consumatore confonda i marchi in conflitto, non è un requisito che rileva nel caso si voglia azionare la notorietà. Ciò che rileva è invece che, delle due l’una, o il titolare del marchio posteriore tragga indebito vantaggio dalla notorietà del marchio anteriore, oppure che la presenza del marchio posteriore arrechi pregiudizio alla notorietà del marchio noto.

Tutto questo implica che ogniqualvolta venga azionato come motivo di opposizione il rischio di confusione, l’EUIPO farà il possibile per risolvere la controversia limitandosi all’analisi di quest’ultimo (semplicemente perché più facile da accertare), non analizzando le motivazioni sottese alla notorietà.

Conseguentemente non è assolutamente facile “costringere” l’Ufficio a pronunciarsi sulla notorietà: bisogna che “capiti” una controversia nella quale sia strategicamente conveniente azionare solo la stessa, prescindendo dal motivo più facile e lineare che è il rischio di confusione.

Conserve Italia era da tempo appostata in attesa della preda da aggredire e quando è passata, non si è fatta perdere la (ardua e difficile, ma coraggiosa) occasione di “azzannarla” con la notorietà.

La preda era un marchio YOGA depositato per “birre”.

L’indebito vantaggio era costituito dal fatto che il titolare della domanda di marchio potesse approfittare degli investimenti fatti da Conserve Italia, per quasi 70 anni, per promuovere il marchio YOGA.

Il pregiudizio era dato dal fatto che una bevanda alcolica come la “birra” venisse affiancata ad un succo di frutta per il quale Conserve Italia aveva da sempre fatto campagne promozionali salutistiche (principalmente nel campo dello sport) oltre che destinate ai bambini.

L’avere confidato sul fatto che il proprio marchio godesse di notorietà, e quindi evitando di percorrere la strada più lineare e semplice del rischio di confusione, ha permesso a Conserve Italia di ottenere il tanto ambito trofeo: marchio YOGA riconosciuto notorio, non solo in Italia, ma in tutta la Comunità Europea!

Autore: Claudio Balboni 

Articolo pubblicato in Bugnion News n.34 (Maggio 2019)

Registering Chinese translations or transliterations of foreign trademarks

Introduction

As Chinese (Mandarin) is Taiwan's national language, many foreign companies use Chinese translations or transliterations of their foreign brands (trademarks) in order to expand into the Taiwanese market and allow consumers in Taiwan to identify their products more easily.

However, as Chinese characters can have different pronunciations and meanings, there are often multiple ways of translating or transliterating foreign trademarks into Chinese.

Similarity may not exist when comparing a foreign trademark with its Chinese translated or transliterated version using the traditional standard of trademark similarity. As such, when Chinese translated or transliterated versions of foreign trademarks are applied for or registered in bad faith, it is unclear whether there is a likelihood of confusion according to current practice in Taiwan.

The Intellectual Property Court recently addressed this issue in an administrative case relating to a trademark opposition.

Facts

The opponent of the disputed trademark registration was a French cosmetics company, while the registrant was the cosmetics company's distributor in Taiwan.

The cosmetics company determined a Chinese translation of its foreign trademark and ordered the distributor not to use any other trademark or IP right relating to that mark. However, the distributor did not use this Chinese translation.

The distributor claimed that, due to a marketing need, it had created its own Chinese translation of the foreign trademark and had used the cosmetics company's Chinese translation only during the distribution period.

The cosmetics company sought to end its distribution relationship with the distributor and discovered that the distributor had registered its own Chinese version of the foreign trademark (the disputed trademark).

The distributor argued that:

• the disputed trademark had been an independent creation;
• the Chinese translation of the cosmetics company's foreign trademark was pronounced differently to the Chinese translation used in the disputed trademark; and
• no similarity existed between the disputed trademark and the cosmetics company's foreign trademark.

Decision

The Intellectual Property Court highlighted the fact that the distributor and its related company had continually used the disputed trademark and the cosmetics company's foreign trademark. Further, the distributor had regularly added the word 'French' to the disputed trademark to represent the cosmetics company's product.

The court also learned that the distributor had filed and used the cosmetics company's Chinese translation in its registration for the disputed trademark.

In view of these findings, the court declared that the distributor had wilfully attempted to confuse consumers in Taiwan and registered the disputed trademark in bad faith. Therefore, the disputed trademark could not be protected under the Trademark Act.

Comment

This decision clarifies that where a registrant applies to register a Chinese translated or transliterated version of a foreign trademark despite having knowledge of a likelihood of confusion, the application will be considered to have been filed in bad faith and will be deemed invalid.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. 

USA - APHIS Proposes Revised Regulatory Framework Regarding The Movement Of Certain Genetically Engineered

By Lynn L. Bergeson

The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) issued a proposed rule on June 6, 2019, on the movement of certain genetically engineered (GE) organisms.  84 Fed. Reg. 26514.  The proposed rule would revise the regulations regarding the movement, including the importation, interstate movement, and environmental release of certain GE organisms in response to advances in genetic engineering and APHIS’ understanding of the plant pest risk posed by them, “thereby reducing regulatory burden for developers of organisms that are unlikely to pose plant pest risks.”  APHIS notes that the proposed rule “would mark the first comprehensive revision of the regulations since they were established in 1987.”  It would provide “a clear, predictable, and efficient regulatory pathway for innovators, facilitating the development of new and novel [GE] organisms that are unlikely to pose plant pest risks.”  Comments on the proposed rule are due by August 5, 2019. For further details, see the Bergeson & Campbell, P.C. (B&C) memorandum here