Small Business Exception for Nutrition Labeling of Raw Meat and Poultry
Effective March 1, 2012, the United States Department of Agriculture is requiring all retailers—including small businesses—to provide nutrition information to consumers for the major muscle cuts of meat and poultry.
(Click here for a pdf of this article.)
This information may either be placed in a label directly on the product or made available to consumers at the point of purchase. Retailers may display a poster created by FMI with other organizations available here to comply with the requirement. The poster may be downloaded in a lower resolution for free and a higher resolution for a charge. Note that the poster was mailed to FMI members last fall. A pamphlet or brochure with the same information also satisfies the requirement.
Ground meat and poultry is also required to have nutrition labeling under the new rule. Nutrition information for ground products must be labeled directly on the package unlike the flexible requirement for muscle cuts. However, small businesses are exempt from labeling certain ground products.
To qualify for the small business exemption a business must have 500 or fewer employees.
Any ground single-ingredient meat or poultry product that a small business produces at less than 100,000 lbs per year is exempt from the nutrition labeling requirement so long as it has no nutrition information or claims. Please see Example 1.
Example 1
Q: Pine Mountain Grocery annually produces 90,000 lbs of 70/30 beef, 80,000 lbs of 80/20 beef and 120,000 lbs of 90/10 beef. What item(s) must be labeled?
A: Only the 90/10 beef is required to labeled.
The quantity per product is calculated on a company-wide basis. Retailers with multiple stores must add up the total weight of the particular product produced at each store to determine if it exceeds the 100.000 lb threshold.
Please see Example 2.
Example 2
Q: Bob’s Grocery Co. operates three stores. Store A produces 40,000 lbs of 80/20 beef, Store B produces 30,000 lbs of 80/20 beef and Store C produces 60,000 lbs of 80/20 beef. Must the 80/20 beef be labeled?
A: Yes, the 80/20 beef must be labeled as the retailer produces a total of 130,000 lbs of it.
For more information please contact FMI’s Regulatory Counsel, Erik Lieberman, at 202-220-0614 or elieberman@fmi.org.
Disclaimer: This guidance is provided by the Food Marketing Institute as a service to its members and does not constitute legal advice. As legal advice must be tailored to the specific circumstances of each case and laws and regulations are frequently changing, nothing provided herein should be used as a substitute for the advice of competent counsel.
To Post or Not To Post
Liability considerations in light of Wisconsin’s new concealed carry law
By Joseph Louis Olson
As of November 1, 2011, qualifying Wisconsin residents will be able to obtain a permit that allows them to carry a concealed weapon (e.g. a handgun, knife, billyclub, etc.). Generally, the concealed carry law leaves the decision of whether a person will be allowed to carry a concealed weapon on private property to the person who owns or occupies the property. See Wis. Stat. § 943.13(1m)(c). In the case of rented space, the law leaves the decision to the tenant. Id.
Under the law, employers may also prohibit their employees from carry concealed weapons during the course of their employment. Wis. Stat. § 175.60(15m). But, the employer may not prohibit an employee from carrying or storing a weapon in the employee’s own vehicle – even if that vehicle is used during the course of employment. Id.
Accordingly, grocers must decide whether they will prohibit the public from carrying concealed weapons in their stores and whether they will prohibit their employees from carrying concealed weapons in the course of their employment.
One of the most important factors a grocer should consider when making these decisions is potential liability. Wisconsin’s concealed carry law is unique. It contains express immunity provisions for those who chose to allow the public or their employees to carry concealed weapons. The language of the express immunity provisions is extremely broad:
“A person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision.” Wis. Stat. § 175.60(21)(b).
“An employer that does not prohibit one or more employees from carrying a concealed weapon … is immune from any liability arising from its decision.” Wis. Stat. § 175.60(21)(c).
Any grocer who decides to prohibit concealed carry by customers and/or employees will be making the decision forgo this statutory immunity. A grocer should also consider if and how the decision to post might create potential liability. Specifically, it is important that any grocer who decides to prohibit concealed carry understands the contours of the law and creates an enforceable policy. And, any grocer who decides to prohibit concealed carry will need to take reasonable steps to ensure that its policy is actually enforced. Accordingly, any grocer who is considering posting should work through these issues with an attorney who is knowledgeable in this field.
Joseph Louis Olson is a trial attorney and a partner with Michael Best & Friedrich, LLP. Mr. Olson practices primarily in the areas of constitutional law, class action defense, product liability defense, employee benefits and complex commercial litigation. Mr. Olson also has a successful appellate practice. Mr. Olson has handled numerous appellate cases in state and federal courts and has had the pleasure of arguing before the Wisconsin Court of Appeals and the Wisconsin Supreme Court.
In addition to his litigation practice, Mr. Olson regularly works with clients to develop and implement policies relating to the carrying of firearms in various employment, retail and residential settings.
Mr. Olson can be reached at:
414-277-3465
jlolson@michaelbest.com
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Day in Washington, DC
From L-R: Saul Winsten, Mike Day, Congressman Ribble, Trig Solberg, Dave Kotwitz, Mark Stinebrink and Brandon Scholz.
From L-R: Brandon Scholz, Congressman Sean Duffy, Trig Solberg and Saul Winsten
Government Affairs
Legislative Programs
WGA reviews, analyzes and monitors more than 200 pieces of legislation annually. Each year, approximately one of every ten pieces of all proposed legislation directly affects the grocery industry.
WGA actively supports or opposes these bills. To effectively pass legislation or change a bill, hundreds of hours are spent meeting with legislators, attending committee hearings, testifying and
building coalitions with other affected industries. We’ll keep you up to date on pending legislation and regulatory actions that will affect your bottom line.
Legislative and Regulatory Agencies
WGA monitors and provides assistance to retailers and suppliers on concerns with regulations or regulatory agencies at the local, state and federal level. There are more than 20 different state and federal agencies that have a direct impact on the retail food and grocery industry.
The WGA works with these agencies who enforce these statutory codes and regulations:
• Alcohol & Tobacco Compliance
• Child Labor/Labor Workforce Regulation
• Electronic Benefit Transfer (EBT)
• Employee/Employer Compliance/Complaints
• Food Safety
• Health Care/Prescription Drugs
• ID Liquor Sales
• Labor/Workforce Regulations
• Local Signage Regulation
• Lottery Sales and Reimbursements
• Minimum Mark-up
• Minimum Wage
• Payroll and Employment Taxes
• Pharmacy
• Privacy Issues
• Recycling Requirements and Surcharge
• Sales Tax and Use Tax Issues
• Telecommunications
• Utility Issues
• Unemployment/Workers Compensation
• WIC
• Workplace Safety
FDA Decision on Safety of Reusable Shopping Bags
and Lead (Pb) in Reusable Shopping Bags Update
November 29, 2010
I. Reusable shopping bags do not pose a food safety hazard
Update (No food safety hazard)
FDA has notified us that it does not view the use of reusable shopping bags as a food safety hazard. Based on FDA’s study and analysis of the intended use of these bags and levels of lead found in some bags, there is “little or no likelihood” of a food safety hazard. Using procedures similar to those used by FDA to assess the safety of glazed pottery and food contact surfaces, FDA’s Office of Food Additive Safety found there is little, if any, transfer of lead and have determined that the use of reusable shopping bags does not constitute a food safety hazard.
Background
A concern was raised, first initiated by a consumer activist in New York, about the environmental impact that could result from the disposal of certain reusable shopping bags that tested positive for lead (Pb). The voluntary Model Toxics in Packaging Legislation, which has adopted as law in 19 states (see below for the list of states) sets standards for heavy metals in packaging materials. The goal of this activist group is to have this Model become Federal law.
Although this began as an environmental issue, a question was raised about the possibility that this could also be a food safety concern. FDA, charged with responding to this concern, has concluded that the use of reusable shopping bags does not present a food safety hazard.
II. Model Toxics in Packaging Legislation
Update (Potential Environmental Impact)
In those states that have adopted the Model Toxics in Packaging Legislation (see below for more details), there may still be a concern regarding the environmental impact of reusable shopping bags. Because the Toxics in Packaging Legislation is a model, states can adopt it with modifications and apply their own interpretation to the definitions.
Whether a reusable grocery shopping bag meets the definition of “packaging” is a matter of interpretation and you should check with the regulatory authority for clarification. In making this determination, the following should be considered:
- Although the term ”bag” is included in the Model’s definition of packaging, some states have interpreted “packaging” to refer to that material which becomes waste after the package is opened or used, or for that material which is intended for single use packaging and then disposed. Because the shopping bags are reusable, they do not become waste after the products are removed, or after a single use, and therefore are not packaging material under the Model.
- The Model includes several exemptions, although states vary as to which exemptions they have adopted and how they are interpreted. One of the exemptions includes (in part), “…packages and packaging components that are reused but exceed contaminant levels … provided that the product being conveyed by such package and\or the package\packaging component is (are) regulated under Federal and\or State health or safety requirements…” (The complete wording in the Model exemption is inserted below) Because FDA has determined there is no food safety hazard to the products being conveyed in the shopping bags, they may qualify under this exemption.
- The Model is intended to reduce the amount of packaging materials entering into solid waste and therefore, allowing the use of reusable shopping bags, even those containing lead, has the desired effect and will gradually lower the presence of heavy metals caused by single-use packaging.
- The food retail industry is committed to reducing harmful chemicals in the environment and will continue to work with manufacturers and suppliers to further reduce the occurrence of lead in packaging materials and reusable shopping bags.
Model Toxics in Packaging Legislation
The Toxics in Packaging Clearinghouse (TPCH) was formed in 1992 to promote the adoption of the Model Toxics in Packaging Legislation. It is intended to reduce the amount of heavy metals in packaging and packaging components that are sold or distributed throughout the United States.
The Model attempts to reduce the presence of 4 specific heavy metals: mercury, lead, cadmium and hexavalent chromium in packaging. By lowering the amount of these compounds in packaging materials, it is hoped that the amount of heavy metals entering municipal solid waste and, ultimately, landfills and incinerators will be reduced. A reduction of these metals as waste will gradually lower their presence in the environment. Link to Model Toxics in Packaging Legislation: http://www.toxicsinpackaging.org/index.html
The Model Toxics in Packaging Legislation has been adopted in the following states: California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.
Exemptions: Section 5 (e.)
e. packages and packaging components that are reused but exceed contaminant levels set forth in subsection c of Section 4 of this Act, provided that the product being conveyed by such package and\or the package\packaging component is (are) regulated under Federal and\or State health or safety requirements; and provided that transportation of such packaged product is regulated under Federal and\or State transportation requirements, and provided that disposal of such package is performed according to Federal and\or State radioactive or hazardous waste disposal requirements, and provided that the manufacturer or distributor of the packages and packaging components notifies the [State Administrative Agency] of the applicability of an exemption under this subparagraph to its packages and packaging components, and provided that an exemption under this subparagraph shall expire on January 1, 2020
III. Consumer Products Safety Commission (CPSC)
The Consumer Products Safety Commission establishes lead standards for safety reasons. According to FDA, the reusable shopping bags do not present a food safety risk.
CPSC has a lead standard for products designed or intended primarily for children 12 years of age or under. The standard, as per CPSIA section 101(a) states:
As of “August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. The limit goes down to 100 ppm …on August 14, 2011, unless the Commission determines that it is not technologically feasible to have this lower limit.”
There is no CPSC standard for products intended for general use (other than products such as lead-based paints used in homes, on furniture, etc.).
Based on our discussion with CPSC, we believe that these bags do not meet the criteria for products intended for use by children 12 and under and are for general use. However, bags that have designs that are intended to specifically appeal to children 12 and under may meet the criteria for products intended for children. If that is the case, then the limits above would apply.
IV. Recommendations
Retailers should consider working with their suppliers/manufacturers of reusable shopping bags to assess the lead levels in the bags and work toward lowering levels where possible.
Check with your state to determine if they have any laws regarding environmental lead levels for packaging or if they have adopted the Toxics in Packaging Legislation. Work with states to clarify the difference between packaging and reusable bags intended for conveyance, and to encourage the use of reusable bags by exempting them from the Model.
FDA Menu Labeling Burden Assessment
Revised ADA Regulations
On September 15, 2010, the U.S. Department of Justice issued revisions to the Americans with Disabilities Act and adopted the new 2010 Standards for Accessible Design. The 2010 Standards consist of numerous changes including revising the definition of service animals to include miniature horses, accessibility of entrances and van accessible parking and numerous changes within the store. The revised regulation takes effect on March 15, 2011; however, the 2010 Standards do not become mandatory until March 15, 2012.