Patrick Morin, Author at Morsel Law

Avoid Ice in Your Cocktails at All Costs

Posted on November 16, 2017December 11, 2017 by Patrick Morin

Everyone has a favorite go-to cocktail they order when they visit their favorite watering hole. But if the drink is made with ice, you may want to reconsider.

While it’s not new news, a recent article described interviews with several bartenders who noted that restaurants may not clean their ice machines regularly. While the Food Code in most states govern the cleaning standards for ice, these standards vary. Mold and bacteria have regularly been found in ice machines, which can lead to serious illness. Even bartenders who fail to wash their hands can contaminate ice, which can spread disease.

The key for restaurants and bars to avoid contamination is to treat ice with the same safety precautions that they would treat food. This includes training employees on how to properly handle and store ice.

If you have questions about food safety for your business, contact our attorneys at Morsel Law.

FDA posts new FSMA compliance dates

Posted on October 30, 2017December 11, 2017 by Patrick Morin

Is your food business affected by Food Safety Modernization Act (FSMA) rules? FDA launched a new website listing the staggered FSMA compliance dates, some based on the size of a business. FDA also has provided a graphic timeline that shows these staggered compliance dates by month and year.

The rules that include compliance dates, in the order they became final, are:

Preventive Controls for Human Food
Preventive Controls for Animal Food
Produce Safety
Foreign Supplier Verification (discussed in an earlier blog post)
Sanitary Transportation
Intentional Adulteration

There are no compliance dates for the Accredited Third-Party Certification rule since it is a voluntary program. However, FDA launched a website earlier this year where an organization can apply to be recognized as a Third-Party accreditation body.

If FSMA applies to your business, then you may want to take a look and make sure you will be ready before these deadlines. If you have questions about FSMA compliance, contact our attorneys at Morsel Law.

FDA Approves Peanut Allergy Prevention Claims on Baby Food Labels

Posted on October 11, 2017December 11, 2017 by Patrick Morin

It’s now recommended to introduce peanuts to young infants.

FDA has announced that companies will be able to label baby food products with advice about how the early introduction of peanuts in an infant’s diet may reduce the risk of developing a peanut allergy. This marks the first time the FDA has permitted a qualified health claim of food allergy prevention. These labels will be allowed on foods containing ground peanuts suitable for infant consumption, but not whole peanuts, which may be a choking hazard for young children.

The full story can be found here.

If you have questions about FDA labeling regulations, contact our attorneys at Morsel Law.

How to Trademark Your Food

Posted on September 27, 2017December 12, 2017 by Patrick Morin

You’ve worked hard to build your brand, now it’s time to protect it!

It’s important to protect your ideas, business name, logo, inventions, and other work products that give your business a competitive edge. In today’s marketplace it is highly possible that other businesses or individuals are copying or using your intellectual property for their own benefit, thereby threatening your growth. However, you can protect your intellectual property in order to prevent others from profiting from your established goodwill. The purpose of a trademark is to clearly identify the source or identity of a product and prevent confusion. This helps protect businesses from losing sales and protects consumers from buying products they didn’t intend to purchase.

What is a Trademark?

A trademark is a word, name, symbol or design, or any combination, that identifies a business or its products or services and distinguishes it from other businesses. A trademark is how potential customers recognize your business and it’s what set you apart from your competitors. For example, “Cheese-It” is a trademarked product name, which means no one else can use the name “Cheese-It” to sell crackers. Similarly, the Kellogg’s logo (the company that makes Cheese-It crackers) is trademarked and only Kellogg’s can use it. This helps consumers recognize the products made by Kellogg’s and distinguish them from other products.

One common misconception is that recipes or formulations can be protected through the use of a trademark, but unfortunately they cannot. Your energy drink may be the best drink on the shelf, which is why buyers keep coming back to purchase more – but your trademark protects the name on the package (and logo or design), not the recipe itself. However, you can protect your recipe by other means through the use of trade secrets, but that is a topic for another article.

In the U.S., the trademark registration process requires 3 steps: selecting a name, conducting a trademark search, and registering the trademark.

1. Choose a Name For Your Business or Product

The first step in the trademark process is coming up with a name. Trademarks don’t apply to generic or descriptive terms, so you’ll need to select something original. For instance, in the example above you can’t trademark the name “cheese crackers” because it’s generic and has nothing to do with your particular brand. Instead you need an original name for your crackers (or business) in order to register it as a trademark.

You also need to make sure that neither your business or product name can be overly descriptive of the product you’re selling. For example, you can’t trademark “Cracker Baking Company.” The strongest trademarks (i.e., most legal protection) are ones that create a completely new word or phrase (think “Exxon” or “Xerox”).

2. Conduct a Trademark Search

After selecting a name, you need to make sure it’s not already being used for similar types of food, either as a brand or a product name. To do this you’ll have to conduct a comprehensive trademark search to ensure your proposed mark isn’t infringing on another registered trademark. It’s important to look at the factors examiners at the U.S. Patent and Trademark Office (USPTO) will consider when reviewing your trademark application, such as similar spellings, variations in spelling, similar-sounding names, potential logo or color scheme confusion for same product types, or anything else that might create confusion to consumers. An application for cheese crackers called “Cheese-Ems” and sold in red packages would probably be considered too similar to “Cheese-Its” to be trademark. Not only will your application be denied, you might get sued for trademark infringement by the company that owns the Cheese-It brand.

Unfortunately, many of the tools available to the general public are not sufficient to conduct a comprehensive trademark search. This means Google or another search engine is out. While the USPTO makes available some search tools, they are difficult to use effectively and frequently miss potential conflicting trademarks. To make sure you don’t waste your money on application fees just to have the trademark rejected, you probably want to hire an experienced trademark attorney to conduct the search. They have access to more powerful search tools and they know what to look for.

3. Submit the Trademark Application

After successfully completing the search, it’s time to submit a trademark application. The application requires an exact description of the type of product (or business). The USPTO has a strict classification system and if you don’t follow it they’ll send it back to you, or worse reject the application. There are 34 classes in the system, 3 of of which are categories for food products. Your attorney can help you identify the right category for the application to avoid any potential delays. You’ll also need to provide a sample of the trademark if it contains any images or symbols, or if the name written in stylized writing or contains specific colors.

Trademark Approval Process

Once you submit your application, the USTPO will assign it to an examiner for review, which can take between 6-8 months. This process can take longer if your application is returned for corrections or clarification on certain items. If your application is approved, you’re entitled to the full benefits and protections of a registered trademark, meaning your trademarked names and logos are yours and yours alone. Although another competitor might try to imitate your product, so you’ll need keep an eye out. Remember, only you can protect your brand, but with a trademark registered with the USPTO you’ll have power of the law behind you to go after anyone that infringes on your trademark.

If you have questions about protecting your brand with a trademark, contact our attorneys at Morsel Law.

Your Organic Food May Not Be Organic

Posted on September 21, 2017December 11, 2017 by Patrick Morin

The USDA’s Inspector General recently released its annual report on the National Organic Program (NOP). The report found widespread problems with the NOP that could result in “reduced U.S. consumer confidence in the integrity of organic products imported into the United States.” The report cites the USDA’s Agricultural Marketing Service’s (AMS) failure to reconcile organic standards between different countries, verify documents at U.S. ports of entry and conduct mandatory audits of major exporters.

In visits to seven U.S. ports of entry, the IG found produce shipments of all kinds are fumigated at the border to prevent pests from entering the country. That practice, according to the IG, runs counter to the assurance U.S. consumers get from the NOP that “foreign agricultural products maintain their organic integrity from farm to table.” The IG recommends that the NOP come up with performance measures for timely audits and suggests adoption of a schedule to review each participating country every two years.

The failure of the AMS to do their job is inviting trouble. Food fraud is big business and will probably be even more so after this report is shared across the globe. If a farmer can sell his non-organic wheat as organic for twice the price, he might consider it, or he might not. But what about a wholesale broker run by a criminal enterprise looking for new sources of income, would they think twice about reclassifying products as organic to make more profit? Probably not.

Hopefully the IG report will lead to significant changes for the NOP, but in the meantime consumers should be vigilant about identifying the source of their organic foods. Maybe you’ll think twice about spending extra money on organic food that probably isn’t organic.

If you have questions about products labeling, contact our attorneys at Morsel Law.

FSMA Small Biz Compliance Guide Published by FDA

Posted on September 8, 2017December 11, 2017 by Patrick Morin

The Food and Drug Administration recently released a guide to help small businesses comply with the Produce Safety Rule mandated by the Food Safety Modernization Act (FSMA).

The FDA said its guide could help farmers determine whether they were eligible for a qualified exemption, which would modify the requirements they are subject to under the Produce Safety Rule.

The main compliance dates for small businesses and very small businesses under the Produce Safety Rule are Jan. 28, 2019, and Jan. 27, 2020, respectively, but certain agricultural water requirements have extended compliance dates.

If you have questions about FSMA compliance, contact our attorneys at Morsel Law.

Label Reviews Are Critical For Food Importers

Posted on July 17, 2017December 11, 2017 by Patrick Morin

I previously posted a similar article discussing the importance of label reviews for domestic produced products here. But a recent event reminded me to reiterate the importance of accurate labeling, especially for food importers. Non-compliant labels can cost you time, money and even your relationship with customers.

A few weeks ago, JFC International Inc. issued a voluntary recall for rice seasoning products shipped to the United States. Apparently, the recall was initiated after the company discovered the product was not labeled in English, which is required under U.S. law. Also, because the label was not in English, it is deemed to have failed to disclose allergens contained in the ingredients. Important to point out is that this isn’t JFC International Inc.’s first time being involved with a recall event; they issued a similar recall in 2016 for failing to label in English and undeclared allergens.

This event is an important illustration of how important it is to review your labels prior to shipping your products to the United States. First, one of the most common misbranding mistakes for imports is failure to label in English. This seems like a simple fix, but you would be surprised how often this occurs. Importers should require the shipper to forward a copy of the label prior to shipping to confirm compliance with U.S. law. Now this won’t stop mistakes by workers at the warehouse who load the EU labeled products onto a pallet instead of the U.S. bound product, but if you include language in your contract that makes the shipper responsible for all costs to correct the misbranding in the event the wrong product labels are attached, they will quickly change their quality control practices. This is especially true for shippers who have had to foot the bill after a container is stopped by U.S. Customs.

Second, does a voluntary recall trigger coverage under your product recall insurance policy? Generally, coverage isn’t triggered unless there is an “actual” contamination, which is usually proved by product testing or other evidence. For JCF International, if the recall was initiated for misbranding due to failure to label their products in English, the coverage would be denied. However, because the product contained “actual” allergens, then coverage would probably be triggered. But if the product didn’t contain allergens, then coverage would be denied. Even if the product didn’t contain allergens the company would still need to recall the product because it is still considered misbranded and in violation of the FDC Act, but the recall would potentially result is significant non-reimbursable expenses.

Most food label misbranding violations can be prevented through quality control measures. Importers should, if they have not already, institute best practices to minimize the risk of a potential violation that result in having to respond to FDA Notice of Action letter. These practices should also address who bears the cost and burden to deal with a misbranding violation. Prior planning can help ensure your business identifies and minimizes potential risks commonly associated with the food import industry.

If you have questions about labeling, contact our attorneys at Morsel Law.

Deadline to List Calories on Restaurant Menus Quickly Approaching

Posted on April 18, 2017October 17, 2017 by Patrick Morin

As of May 5, 2017, chain restaurants with 20 or more locations are required to provide nutrition labeling of “standard” menu items. Restaurant owners should, if they haven’t already, start preparing for the compliance deadline. In addition to restaurants, this requirement also applies to food facilities in entertainment venues, such as movie theaters and amusement parks, take-out food establishments, bakeries, convenience stores, grocery stores and supermarkets.

These menu labeling requirements were published on December 1, 2014 as a final rule by the Food and Drug Administration (“FDA”), as required under the Affordable Care Act. If you are a small business owner these new rules will have a significant impact on your operations. What it means is that calorie counts will have to be displayed for popcorn at a theater, food from a salad bar, hot dogs from a convenience store and takeout pizza. In addition, vending-machine operators with at least 20 locations also will be required to post calorie counts.

Calorie information also will be required for some alcoholic beverages served in bars and restaurants. This would apply to beverages listed on menus and menu boards, however, this would not apply to mixed drinks ordered at the bar. Craft brewers should take notice. Even if the rules may not directly affect beer manufacturers, those that sell their brews to chain retailers may be forced to supply calorie counts or take their products elsewhere.

While the purpose behind these rules are to combat obesity in America, where over one-third of meals are consumed outside the home, the effect is to burden retailers with significant compliance costs. Retailers are now faced with the choice of passing this additional cost onto the consumer or eliminating certain products from their menus. While not an easy decision for businesses to make, non-compliance can lead to legal action by the FDA.

The rule’s requirements for determining caloric content and labeling menus are highly detailed and complicated. Therefore, if your small business needs assistance in complying with the rule, please contact us at Morsel Law.

Your Hours May Be Set By Your Landlord

Posted on March 13, 2017December 11, 2017 by Patrick Morin

RESTAURANT LEASING: Part 4 of 5

The Continuous Operation Clause in Restaurant Leases

Most landlords will insist on including a continuous operation clause in a restaurant lease. These clauses require a tenant to be open for business continuously during the term of the lease on specific days and at hours dictated by the landlord. It is in the landlord’s best interest to make sure it’s tenants are fully operating because this attracts customers. More customers increase a tenant’s sales, which in the case of a lease with percentage rent, means more rent owed to the landlord. While these clauses vary considerably from one lease to another, it is important to read and understand them before you enter into a long-term agreement as continuous operation clauses have several hidden problems that could affect the unsophisticated restaurant tenant.

When negotiating a restaurant lease it is crucial to address the days and hours of operation up front. If a landlord isn’t flexible on these items, it’s better for a tenant to know right away so the tenant doesn’t waste their time and money on a site that won’t work for their business model. A clause that requires a tenant to open earlier, or remain open later, then times customers are predicted to patron the restaurant will quickly erode its profitability. For example, a brewpub restaurant concept probably shouldn’t be expected to serve breakfast, but it probably would want to remain open late to maximize alcohol sales. Likewise, a coffee shop serving breakfast and lunch probably won’t want to be required to remain open until 10:00 p.m. Also important for tenants operating in shopping centers that desire to remain open past normal center hours, the lease should address the party responsible to cover increased operating costs, such as additional lighting, security, parking and access.

Another important issue to address in continuous operation clause is the ability of the tenant to close an unprofitable restaurant and/or terminate the lease. Under a typical continuous operation clause, a tenant would be in default under the lease if it ceased operating, opening itself up to damages and penalties. A tenant in this situation would be forced to decide between closing the restaurant to reduce its costs and expenses or default on the lease. However, a tenant can protect themselves from this situation by insisting on including a “go dark” clause.

A “go dark” clause permits a tenant to stop operating at a site without being in default under the lease. This clause is typically dependent on tenant complying with all of its other lease obligations, including paying rent. A “go dark” option may be available immediately or after a period of time operating (e.g., 1, 2 or 3 years). A tenant will still be obligated to pay rent under the lease, but its expenses will be reduced because it is no longer operating. Landlords may require a tenant to provide a reasonable amount of notice of its intent to go dark so that it can find a suitable replacement for the tenant. Since such a notice requirement will extend a tenant’s ability to stop the bleeding, the tenant should insist on minimal amount of notice as possible.

In the event a tenant goes dark during the term of the lease, a landlord is left with an empty space that isn’t generating sales or attracting foot traffic. In order to protect its interests, the landlord may insist on a recapture right. This recapture right permits a landlord to regain control of the space after a tenant goes dark for a period of time and re-lease the space to another tenant of its choice. When the landlord elects to recapture the space the lease terminates. Tenants should include carve out language in the recapture clause for periods of time tenant closes due to a casualty, repairs, maintenance, alterations or periodic reimaging. A landlord may attempt to include language in the recapture clause that requires the tenant to reimburse landlord for certain costs, such as improvements and brokerage fees. A tenant may argue that since the landlord has the ultimate decision to terminate the lease, but for landlord recapturing the space, it would have paid rent for the entire term.

Continuous operation clauses have many moving parts and are complicated. While this article touches upon some of the issues that commonly arise in a lease negotiation, how these and other issues are resolved will depend upon many factors, including the relative bargaining strength of the parties involved.

If you have questions about your restaurant lease, please contact our attorneys at Morsel Law.

Worldwide Olive Oil Shortage

Posted on February 20, 2017December 11, 2017 by Patrick Morin

Buyers beware: this could mean an increase in food fraud as criminals attempt to cash in on record high prices. Olive Oil accounts for more than 10% of all incidents of food fraud worldwide. Fraudsters in the past have been caught passing off cheaper oils from Turkey and Tunisia as higher priced Italian oil.

Other schemes have been identified where importers were blending cheaper oils, such as hazelnut, soy, corn, walnut or palm oil, and passing the products off as 100% pure olive oil. This is especially concerning when nut-oils are substituted which can lead to major problems for those with food allergies.

For more, you can view the article.

If you have questions about food fraud, please contact our attorneys at Morsel Law.