Ad Law Access : Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

On February 3, 2012, the U.S. Department of Agriculture's ("USDA") Agriculture Marketing Service ("AMS") published draft guidance clarifying how exemptions and exclusions from certification as a producer or handler of organic food products apply to handling operations. Under USDA regulations governing the production and handling of products labeled as "100 percent organic," "organic," or "made with organic [specified ingredients]," handling operations must be certified by a certifying agent accredited by the USDA. Handling operations include any operation or portion of an operation--except for final retailers that do not process the products--that receives or acquires agricultural products for processing, packaging, or storing. Section 205.101 of USDA regulations exempts handling operations from certification if they receive in and ship out products in the same container without opening, relabeling or otherwise handling the products. In October 2010, the National Organic Standards Board ("NOSB")--a board consisting of members of the agricultural community that advises the USDA about organic food products--recommended that the USDA clarify section 205.101's exemption limitations.

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The Agriculture Marketing Service of the United States Department of Agriculture announced an agreement reached with Canada’s Food Inspection Agency that will provide U.S. organic dairy, beef, sheep, goat and bison producers with more streamlined access to the Canadian market. Canada now considers U.S. organic requirements for access to pasture and living conditions to be equivalent to Canada’s ruminant stocking rates (number of animals in a given area). The agreement is part of the implementation of an Equivalence Arrangement the two countries entered into in 2009.

U.S. producers who provide ruminant animals with 30 percent of their feed during the grazing season from organic pasture, put animals on pasture at least 120 days per year, and provide animals with adequate space and living conditions which accommodate the natural behavior of livestock are now considered as having met the ruminant stocking rate requirement for labeling product as organic in Canada. U.S. producers are still prohibited from using sodium nitrate in the production of ruminant-derived products labeled as organic in Canada.
 

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On January 27, 2012, the Illinois Attorney General released guidance for businesses to prevent, prepare for, and respond to data security breaches. Information Security and Security Breach Notification Guidance reminds businesses and government agencies of their obligation to comply with Illinois law to guard against security breaches and provide notice in the event of an incident. The guidance identifies five (5) key principles for safeguarding information: (1) take stock; (2) scale down; (3) lock it; (4) pitch it; and (5) plan ahead.

The guidance also provides recommendations on how to prepare for a security breach including the creation of an information security program and an incident response plan. In addition, the guidance provides recommended steps for responding to a security breach, a list of requirements under the Illinois Personal Information Protection Act, and practical considerations for security breach notification. Notably, the Illinois statute was amended effective January 2012 to require security breach notifications to include: (1) toll-free numbers and addresses for credit reporting agencies; (2) the toll-free number, address, and website for the Federal Trade Commission; and (3) a statement than an individual can obtain information from these sources about fraud alerts and security freezes.

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On January 25, 2012, the Food Nutrition Service of the U.S. Department of Agriculture (“USDA”) issued a final rule that substantially modifies the menu planning and nutrition requirements for the National School Lunch Program and the School Breakfast Program. The rule, which is intended to improve the dietary habits of school children in grades K-12 and address health concerns related to child obesity, closely aligns the lunch and breakfast meal programs with the most recent “Dietary Guidelines for Americans,” published jointly by the USDA and Department of Health and Human Services and updated every five years. The final rule applies only to foods included in lunch and breakfast meals that are served in the school cafeteria and does not impact foods contained in vending machines or other sources of food at school.

The final rule represents a substantial shift in the nutritional composition and quantity of a number of food items that make up school breakfast and lunch meals and will have far-reaching implications for companies that make or market food products for use in school breakfast or lunch programs. Companies should evaluate the legal and business implications of the rule soon, as many of the changes to the nutrition quality standards are effective at the start of the 2012-2013 school year.

See the Kelley Drye client advisory for more information, and please contact us if you have questions concerning the USDA proposal or other matters.

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The United States Court of Appeals for the Fourth Circuit recently affirmed a West Virginia federal district court's holding that a plaintiff's common law tort claim was preempted by the 1976 Medical Device Amendments ("MDA") to the Food, Drug, and Cosmetic Act ("FDCA"). Under the MDA, certain medical devices, known as Class III devices, are required to receive premarket approval from the Food and Drug Administration ("FDA").  The MDA also allows the FDA to condition a grant of premarket approval on a requirement that a device meet certain performance standards. The establishment of a performance standard is a formal process that requires publication in the Federal Register and providing interested parties with an opportunity to comment.  The MDA expressly preempts state medical device regulations that are “different from, or in addition to, any [federal] requirement."

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The way companies collect information through mobile apps has been the focus of several FTC actions, Congressional hearings, proposed legislation, and at least a dozen class action lawsuits. In response to the confusion over how app developers should deal with privacy issues, the Mobile Marketing Association recently released its Final Privacy Policy Guidelines for Mobile Apps.

The proposed policy addresses several key areas, including: (a) what information is collected, and how it’s used; (b) whether the app collects location-based information; (c) whether third parties have access to any information; (d) whether consumers can opt-out of information collection or sharing; (e) how long information is retained; and (f) how that information is safeguarded. The MMA notes that additional provisions will be required if an app is directed to children under 13.

The MMA states that the guidance is intended to provide a starting point for companies that develop apps, but that it should not be considered an ending point. For more helpful advice, read about 5 Privacy Tips for Location-Based Services.
 

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In a unanimous opinion published on January 23, 2012, the Supreme Court reversed the Ninth Circuit Court of Appeals and held that a California law prohibiting the sale, processing or holding of a nonambulatory animal was expressly preempted by the Federal Meat Inspection Act (FMIA).

The case, National Meat Association v. Harris, dealt with Section 599f of the California Penal Code, which was enacted in 2008 in response to an undercover video released by the Humane Society showing workers in California kicking and electroshocking sick and disabled cows in an attempt to move the cows. The law makes it a crime for any slaughterhouse to “buy, sell or receive a nonambulatory animal,” or to “process, butcher or sell meat or products of nonambulatory animals for human consumption,” or “hold a nonambulatory animal without taking immediate action to humanely euthanize the animal.”

The National Meat Association (NMA) sued to enjoin enforcement of the law as applied to swine slaughterhouses and argued that the FMIA’s broad express preemption provision prohibited California from enacting distinct requirements for the handling of nonambulatory pigs. The FMIA and implementing regulations enacted by the Department of Agriculture’s Food Safety and Inspection Service (FSIS) broadly regulate slaughterhouses to promote meat safety and humane treatment. With respect to the treatment of nonambulatory pigs, FSIS regulations permit slaughterhouses to hold and eventually sell nonambulatory animals, subject to a “post-mortem” examination.

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The year 2012 is certain to reflect U.S. consumers’ continued love affair with sophisticated smartphones and tablets. One of the driving forces in the popularity of these devices is their ability to run mobile apps using wireless location-based services (LBS). Among other benefits, LBS allow access to real-time and historical location information online – whether to facilitate a social interaction or event, play games, house-hunt or engage in many other activities.

However, with these benefits also come privacy risks. And it is not uncommon for some popular LBS-enabled tools to lack clear disclosure about personal information collection, how that data is used, and the process for consumer consent.

Our article posted recently on Mashable, "5 Privacy Tips for Location-Based Services," discusses several privacy "do's and don'ts" for designing mobile apps.

For a more in-depth discussion of these issues, plus other privacy law trends, join us on February 16 for Kelley Drye’s seminar and teleconference, “Privacy in 2012: What to Watch Regarding COPPA, Mobile Apps, and Evolving Law Enforcement and Public Policy Trends.”

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Changes to privacy regulations, such as proposed revisions to the Children's Online Privacy Protection Act (COPPA), and continuously evolving technologies, including mobile apps with location-based services, can make it difficult for businesses to ensure their privacy practices are up to par.

On February 16, Kelley Drye will gather government leaders from the FTC and FCC, and thought leaders in the industry, for a discussion about new regulations, enforcement trends, and best practices to avoid consumer privacy risks. Please join us for "Privacy in 2012: What to Watch Regarding COPPA, Mobile Apps, and Evolving Law Enforcement and Public Policy Trends."

Email dcevents@kelleydrye.com to register for the live seminar or teleconference.

KEYNOTE SPEAKER

Peter Swire, Professor of Law, Ohio State University; former Clinton Administration Chief Counselor for Privacy, U.S. Office of Management and Budget

PANEL 1:  COPING WITH COPPA: CHILDREN'S PRIVACY AND PROPOSED REVISIONS TO THE COPPA RULE

Ellen Blackler, Vice President - Global Public Policy, The Walt Disney Company

Mamie Kresses, Senior Attorney, Division of Advertising Practices, Federal Trade Commission

Saira Nayak, Director of Policy, TRUSTe

Moderated by partners Dana Rosenfeld and Alysa Hutnik of Kelley Drye & Warren LLP

PANEL 2:  MOBILE APPS: A PRIVACY AND CONSUMER PROTECTION HOT SPOT

Michael Altschul, Senior Vice President and General Counsel, CTIA

Jessica Rich, Associate Director, Division of Financial Practices, Federal Trade Commission

Jennifer Tatel, Associate General Counsel, Federal Communications Commission (invited)

Moderated by partners John Heitmann and Gonzalo Mon of Kelley Drye & Warren LLP

When:
February 16, 2012,  2:30 PM - 5:30 PM EST

Location:
Kelley Drye & Warren LLP
3050 K Street, NW, Suite 400
Washington, DC 20007-5108

And via audio webcast

RSVP:
Email dcevents@kelleydrye.com or contact Cassidy Russell at 202.342.8400.

This seminar is free of charge, but space is limited. Reserve your place today.

CLE and CPE credit may be available in certain jurisdictions.

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