Marketing and Labeling

Recently, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations related to short form warnings. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods.

A recent decision of the Trademark Trial and Appeal Board (“TTAB”) highlights the overlap between trademark law and food regulatory law as well as the United States’ and Europe’s different approaches to Geographic Indications (“GIs”).  GIs identify the particular location where an agricultural product (such as cheese, wine, or spirits) originates.

Interprofession du Gruyère, a Swiss association, and Syndicat Interprofessionnel du Gruyère, a French association, jointly filed a U.S. trademark application at the U.S. Patent and Trademark Office (“USPTO”) on September 17, 2015 to register the term GRUYERE as a certification mark for cheese.  The Swiss association already owned Registration Number 4,398,395 for the certification mark LE GRUYERE SWITZERLAND AOC and Design.  In the new application, the French and Swiss associations sought to register the term GRUYERE as a word mark, meaning that they made no claim to a particular stylization or design.  In effect, if the USPTO granted registration of the French and Swiss associations’ application, the associations could prevent others in the U.S. from using the term “gruyere” on cheese made outside of the Gruyere region of Switzerland and France.

The U.S. Dairy Export Council and several other entities filed to oppose the associations’ application on the basis that the term “gruyere” is generic for a style of cheese in the U.S.  (In full disclosure, Emily was employed during part of this proceeding at the International Dairy Foods Association, another opposer in the case, and assisted it in this proceeding before joining Husch Blackwell.)  Most of the other entities ultimately withdrew their oppositions or the TTAB dismissed their claims.

Today, the U.S. Food and Drug Administration (FDA) issued a proposed rule that would require health warnings on cigarette packages and advertising.  The warnings include color images depicting some of the lesser-known health risks of cigarette smoking.  This is FDA’s second attempt to require graphic warnings for cigarette packages and advertisements.

On July 30, 2019, the U.S. Food and Drug Administration (FDA) issued its first Warning Letter to an importer for violations of the Foreign Supplier Verification Program (FSVP) requirements at  21 C.F.R. Part 1, Subpart L (21 C.F.R. §§ 1.500 through 1.514).  The Warning Letter was issued to a U.S. importer related to imported tahini implicated in a multi-state Salmonella Concord outbreak in spring 2019.

The U.S. Food and Drug Administration (FDA) recently issued a draft guidance to advise food manufacturers of its intent to exercise enforcement discretion for the name “potassium chloride salt” in the ingredient statement on food labels as an alternative to the common or usual name “potassium chloride.” Potassium chloride is often used as a partial substitute for sodium chloride (i.e. salt) in many foods.

The U.S. Department of Agriculture (USDA) Food Safety Inspection Service (FSIS) has proposed to eliminate requirements that certain meat and poultry products display net weights using a dual declaration format (i.e. requiring that some products declare weight in both pounds and ounces). The proposal would remove the dual net weight declaration for meat or poultry…