New EU Food Law Raises Bar to Protect Confidential Business Information

By Laura van der Meer and Dan Nobil on February 19, 2019 

The U.S. and other companies that export foods, additives, colorings, etc. to the European Union (EU) should take notice: new legislation applicable to the agri-food industry is being billed as one of the world’s “most transparent” laws raising potential concerns about protecting proprietary information from competitors.  Controversy surrounding the use of genetically modified organisms and the associated herbicide glyphosate paved the way for a European citizens’ initiative, which ultimately led to a legislative proposal by the European Commission to enhance public confidence in risk assessment of foods.  The ensuing regulation on the transparency and sustainability of the EU risk assessment in the food chain will amend the EU’s General Food Law Regulation, a law that was adopted following a series of food incidents in the late 1990s.

The revised regulation aims to ensure that market approvals related to the food chain by the European Food Safety Authority (EFSA) are founded on reliable, objective and independent studies and risk analysis.  It will entail automatic publication of all studies and information submitted to EFSA to support the authorization of a proposed product or ingredient.  It appears that this data will be uploaded early in the approval process, a decision opposed by industry groups.  In addition, the law will establish a database of studies for EFSA to verify whether all relevant research on a substance is considered in evaluating market applications.  The intent is to deter corporations from withholding unfavorable data.  In addition, stakeholders and the general public will be invited to join consultations to help identify any omitted information and ensure EFSA’s comprehensive access to evidence.

For obvious reasons, negotiation of the new legislation was plagued by thorny issues around business information as the legislators struggled to strike a balance between the protection of intellectual rights and commerce and exposing business secrets in a more transparent risk assessment process.  The final acquired text is not yet publicly available but it appears that confidentiality of information will be able to be maintained where companies provide a “verifiable” justification for doing so.  According to a document reportedly seen by Politico, companies will be able to seek confidential treatment of information on: “the manufacturing or production process, including the method and innovative aspects thereof, as well as other technical and industrial specifications inherent to that process or method, except for information which is relevant to the assessment of safety.”                                                                                                         

Posted in European Union (EU), Foods and Beverages, Imports/Exports
https://www.fooddruglaw.com/2019/02/19/new-eu-food-law-raises-bar-to-protect-confidential-business-information/#page=1

                                                                                                                                                    

The revised regulation requires formal approval of the European Parliament and the Council of the EU.  It is scheduled to take effect 20 days after its publication, however, operative provisions will be delayed for some time to come.

No-deal Brexit threat: Gove admits ‘no absolute guarantee’ food trade with EU will continue

Food Navigator.com [William Reed] News & Analysis on Food & Beverage Development - Europe

By Katy Askew

The UK has said it will extend the deadline on some food policy consultations as Environment Secretary Michael Gove admits a no-deal exit from the EU could see an immediate halt to food trade with the bloc.

https://www.foodnavigator.com/News/Policy/No-deal-Brexit-threat-Gove-admits-no-absolute-guarantee-food-trade-with-EU-will-continue?utm_source=copyright&utm_medium=OnSite&utm_campaign=copyright


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‘Cocoapolitics and Choconomics’, the main themes of Amsterdam’s Chocoa Conference

Confectionery News.com - News & Analysis on Chocolate, Candy and Biscuits

By Anthony Myers

The economics and politics of cocoa are will be the main talking points when the 2019 Chocoa Conference opens on Thursday to provide a platform for sustainability and quality and a direct connection to the market through its Cocoa Fair.

https://www.confectionerynews.com/Article/2019/02/19/Cocoapolitics-and-Choconomics-the-main-themes-of-Amsterdam-s-Chocoa-Conference?utm_source=copyright&utm_medium=OnSite&utm_campaign=copyright

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No-Deal Brexit Does Not Have to Mean Non-Compliance for Your Products

by Raminta Dereskeviciute, Clare Reynolds

18 February 2019

With less than six weeks left to the 29 March deadline - and little political consensus, the possibility of a ‘no-deal’ Brexit and the UK crashing out of the customs union and becoming a ‘third country’ increases. If your business manufactures, exports or imports, distributes, or otherwise deals in consumer or industrial products in the UK or the EU, you may need to take steps now to ensure that your products remain compliant under applicable UK and EU law in the event of a no-deal Brexit.

The requirements for placing products on the UK and EU markets (including conformity assessments, marking and labelling) will change overnight unless a deal transitional arrangements or otherwise an extension is agreed before the 29 March deadline. In case of a ‘no-deal’ scenario, the following issues in particular may need to be addressed in respect of product trading in the EU or the UK post-Brexit:

CE marking and conformity assessment - EU market: 

The consequences of the UK’s withdrawal for trading within the EU-27 will depend upon the particular product type and specific conformity assessment procedure, and importantly, whether that product was placed on the EU-27 market before the withdrawal date. Products not placed on the EU-27 market before this date may need to be re-certified, re-labelled or modified in order to trade within the EU post withdrawal. 

In particular, for products where the applicable conformity assessment procedures require intervention by a notified body, UK notified bodies will lose their status as EU recognised bodies. Unless such products have been placed on the EU-27 market before the withdrawal date, the European Commission advises operators to consider obtaining a new certificate from (or arrange for a transfer of the certificate to) an EU recognised notified body. How this works in practice will depend on the specific conformity assessment procedure for the applicable product,although the European Commission advises that any transfer of certificates would need to take place before the withdrawal date.

Where manufacturers place a CE mark on products on the basis of a self-declaration that the product is compliant, this declaration will remain valid when exporting to the EU. 

CE marking and conformity assessment - UK market: 

Goods already placed on the UK market by 29 March 2019 can continue to be lawfully circulated on the UK market. For goods placed on the market after the withdrawal date, the UK Government has unveiled a new logo to replace the CE mark in the UK, dubbed the “UKCA” (“UK Conformity Assessed”), which would require companies to change their product packaging, advertising and labelling at additional cost for manufacturers. Goods made in the UK for export to the EU may need to be stamped with both the CE and UKCA marks. There is still a lot of uncertainty about how the UKCA will work in practice; whilst the government may in time grant concessions to industry, significant disruption for businesses is inevitable.

Economic operators established in the EU: 

UK-based importers and manufacturers will no longer be considered as “economic operators established in the Union” under the EU’s product legislation following Brexit. For products entering the EU post Brexit, EU distributors who previously relied on UK economic operators will become “importers” for the purposes of EU law when making the products available on the EU market for the first time. This will require them to meet more stringent obligations in relation to product compliance. For example, EU legislation generally requires the contact details of the importer or manufacturer to be provided on the product itself or its label, which may need to be updated where this previously referred to a UK-based party.

Authorised representatives and responsible persons: 

Certain EU product legislation requires the appointment of an authorised representative (e.g. medical devices, marine equipment) or a responsible person (e.g. cosmetic products) within the EU. Post-withdrawal, UK-based authorised representatives or responsible persons will not be recognised as such in the EU. As a result, manufacturers must take steps to ensure that their designated representatives or responsible persons are established in one of the remaining EU Member States and that appropriate notification is carried out in relation to such legal entity change. 

Product specific regimes and requirements: 

Several product sectors - Automotive, Aerospace, Pharmaceutical Products, Medical Devices, Batteries, Chemicals, etc and non-harmonised goods subject to national regulations - are subject to specific regimes and requirements. Each regime will have to be assessed for specific changes in order to ensure uninterrupted trade. For example, we have recently advised a number of chemicals manufacturers and traders on transferring UK REACH registrations to the EU, which can be time consuming if a new entity needs to be established. We recommend that businesses seek advice on the available options as soon as possible, as it may take time to implement any necessary changes. 

K&L Gates can advise on the full spectrum of EU product compliance matters to help your business prepare contingency plans for Brexit. We also have lawyers who can help manage Brexit concerns in relation to: Trade & Tariffs, State Aid & Merger Clearance, Intellectual Property, Commercial Contracts, the Workforce, and Travel. 

Contacts

• Raminta Dereskeviciute
  P +44.(0)20.7360.8264
  raminta.dereskeviciute@klgates.com
• Clare Reynolds
  P +44.(0)20.7360.8184
  Clare.Reynolds@klgates.com

http://www.klgates.com/no-deal-brexit-does-not-have-to-mean-non-compliance-for-your-products-02-15-2019/

USA - Challenge to Ben & Jerry’s ‘Humanely Sourced’ Claims Moves Forward

https://www.manatt.com/Insights/Newsletters/Advertising-Law/Challenge-to-Ben-Jerrys-Humanely-Sourced-Claims

A Washington, D.C., judge denied a motion to dismiss and allowed a false advertising suit accusing Ben & Jerry’s of deceiving consumers about the treatment of their cows to move forward.

Last summer, the Organic Consumers Association (OCA) sued the ice cream maker and its parent company, Unilever, over the claim that its products are humanely sourced and environmentally responsible. The group alleged that the defendants touted their ice cream as being produced by “happy cows” raised in “caring dairies” in contrast to factory-style, mass-production dairy operations. In reality, the milk comes from large farm operations with concentrated animal feeding and contains traces of the herbicide glyphosate, the OCA said.

The defendants moved to dismiss the case, arguing that no reasonable consumer would conclude that ads with “happy cows” meant that none of the cows lived at mass-production farms.

But the court disagreed, finding that the complaint was not limited to a challenge of unquantifiable representations about the “happiness” of cows.

“To the contrary, the complaint alleges that fewer than 100% of Ben & Jerry’s partner farms are ‘Caring Dairies’ even though content on Ben & Jerry’s website suggests that all farms supplying ingredients are in the program,” Judge Neal E. Kravitz wrote. “Taken together with the complaint’s references to Ben & Jerry’s general messages about humane treatment of cows and ‘values-led sourcing,’ the allegations concerning the misleading suggestions of full participation in the Caring Dairies program are sufficient to state a claim of misleading labeling and marketing, since a reasonable consumer could plausibly interpret Ben & Jerry’s labeling and marketing as affirmatively (and inaccurately) communicating that the company’s ice cream products are sourced exclusively from Caring Dairies and/or other humane sources.”

As for the environmental responsibility claims, Ben & Jerry’s told the court that no reasonable consumer would view its environmental advocacy as a guarantee that its products contain no glyphosate, which it characterized as a “ubiquitous herbicide.”

OCA countered that the defendants were again taking too narrow a reading of the complaint and that the ice cream maker’s environmental marketing, taken as a whole, misleads consumers into believing Ben & Jerry’s ice cream products contain no chemicals that harm the environment.

Judge Kravitz sided with the plaintiff, finding the facts alleged in the complaint provide sufficient support to plausibly claim that consumers would be misled, as it identified specific representations and did not rely upon vague commitments to environmentalism and sustainability.

“For example, in addition to phrases like ‘promoting business practices that respect the Earth and the Environment’ and ‘high standards for environmental practices,’ the complaint identifies specific messages related to the purity of Ben & Jerry’s products like ‘values-led sourcing’ and advocacy for transparency in labeling (‘Labelize it!’),” the court wrote.

The court also rejected the defendants’ federal preemption argument that the relief sought by the OCA would interfere with the Federal Insecticide, Fungicide, and Rodenticide Act, as well as the Food, Drug and Cosmetic Act. In addition to indicating that dismissal of a suit on preemption grounds based on arguments about potential relief was “premature,” Judge Kravitz reiterated that the complaint focused on Ben & Jerry’s advertising message as a whole.

To read the order in Organic Consumers Association v. Ben & Jerry’s Homemade, Inc., click here.

Why it matters: The D.C. court repeatedly emphasized that the complaint challenged the messages delivered by Ben & Jerry’s advertising as a whole and rejected the defendants’ narrow reading of the claims.

https://www.manatt.com/

rplawson@manatt.com

EUIPO to use blockchain in fight against counterfeiting

https://www.limegreenipnews.com/2019/02/euipo-to-use-blockchain-in-fight-against-counterfeiting/#page=1

What has happened?

The European Union Intellectual Property Office (EUIPO) has launched a new forum based on blockchain to combat counterfeiting.

What does this mean?

The Anti-Counterfeiting Blockathon Forum will be built on blockchain technology and will bring together people and organisations to shape and deliver the future anti-counterfeiting infrastructure.

It follows last year’s Blockathon coding competition, which was run by the EUIPO and the European Commission, and is linked to the EU Blockchain Observatory.

The Forum will connect private organisations, enforcement authorities and citizens to support the identification of authentic and counterfeit goods throughout the distribution chain.

It will focus on drafting and defining the anti-counterfeiting use case and related pilot with the ultimate goal of delivering the next level of anti-counterfeiting infrastructure based on blockchain.

The Executive Director of the EUIPO, Christian Archambeau, called on private sector organisations, and all interested individuals to join the anti-counterfeiting forum to help develop and test solutions that would successfully combat the “global plague” of counterfeiting.

“In today’s fast moving world, we need to use the latest technology to keep a reliable record of the origin of goods and their progress through international supply chains. Blockchain’s ability to create permanent and unchangeable records makes it one of the best candidates to deliver results on the ground”, he added.

POSTED BY LIMEGREEN IP NEWS

Brexit: Where Do We Stand at the End of January?

After the UK government overwhelmingly rejected Prime Minister May’s Withdrawal Agreement in January, the Prime Minister is back to negotiations with the EU in an attempt to hammer out a Brexit deal favorable for Britain before the 29 March deadline. 

In the most recent update, our Brexit team summarizes the vacillating developments surrounding Britain’s exit as of the end of January, lays out possible scenarios of the various permutations of Brexit in 2019 and explains how you can take advantage of the opportunities posed by Brexit.

POSTED IN EU, TRADE POLICY & MARKET ACCESS, UNITED KINGDOM

https://www.tradepractitioner.com/

https://www.squirepattonboggs.com/~/media/files/insights/publications/2019/02/brexit-where-do-we-stand-at-the-end-of-january/brexitwhere-do-we-stand-by-end-of-january-2019.pdf