FDA Seeks Public Comment Regarding FOP Labeling
Post by Tyler Anderson, co-author of the Food Liability Law Blog.
In an April 28 release, the Food and Drug Administration (the “FDA”) asked for comments and information from the public and other interested parties about front-of-pack (“FOP”) nutrition labeling and shelf tags in retail stores. The FOP is the part of the package label that is most likely to be examined under customary conditions of display for retail sale.
According to the FDA release, the FOP nutrition labeling effort aims to “maximize the number of consumers who readily notice, understand, and use point-of-purchase information to make nutritious choices for themselves and their families.” Specifically, the agency is seeking to learn more about:
- the extent to which consumers notice, use, and understand nutrition symbols on FOP labeling of food packages or on shelf tags in retail stores
- research that assesses and compares the effectiveness of particular approaches to FOP labeling
- graphic design, marketing, and advertising data and information that can help develop better point-of-purchase nutrition information
- how point-of-purchase information may affect decisions by food manufacturers to reformulate products
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Update on Vermont's Vitamin Tax
It looks like Vermonters likely won't be paying any extra for their vitamins and dietary supplements. As we previously posted, the Vermont House of Representatives passed a bill last month that, among many other things, would impose a 6% sales tax on all dietary supplements sold in the state. On April 23, the Vermont Senate amended the bill to remove the tax. Other sources report that the Senate panel recognized that a tax on supplements would penalize Vermonters who wish to improve their health. The bill must now go back to the House for reconciliation with the Senate's version.
Vermont's (Potential) Vitamin Tax
The Vermont Senate is considering a bill passed in the state’s House of Representatives that would add a 6% sales tax on dietary supplements sold in the state. The provision is part of an Act (pdf file) that would modify Vermont tax provisions in an effort to keep education tax rates flat. WCAX.com reports that the tax on supplements would raise about $1.5 million dollars. The Senate Finance Committee is currently holding hearings regarding the bill, including an April 8th hearing with testimony specifically regarding the dietary supplement tax.
Interestingly, Vermont has been in the forefront of the “junk food tax” issue, with at least two bills introduced in the House that would tax soft drink sales. A dietary supplement tax would likely undermine the state’s position of promoting its citizens’ health and nutrition, and perhaps instead portray Vermont as a state simply looking for more tax revenue.
Fewer International Trademark Filings in 2009 Parallels Global Economic Downturn
Did you cut down on new branding projects last year to save money? If you did, you're not alone. The World Intellectual Property Organization (WIPO) reported that international trademark filings last year decreased by 16 percent, and U.S. filings dropped more than 13 percent from 2008. In 2009, 35,195 international trademark applications flowed through WIPO's system, compared with 42,075 applications in 2008. USPTO trademark filings for 2009 dipped to 352,051 applications from 401,392 in 2008.
While most countries experienced fewer filings, filings in some countries increased. Filings from Japan rose a modest 3 percent, while filings in the South Korea increased by 33 percent and Singapore by 21 percent. WIPO Director General Francis Gurry noted that demand for intellectual property rights had reached unprecedented levels prior to the economic crisis and we have every reason to believe that international trademark activity will pick up as economic growth solidifies and broadens. Trademark filings are already up in 2010. Hopefully the economy will follow suit.
Surprise! U.S. Marshals Pay a Visit to a Wisconsin Supplement Manufacturer
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The Feds paid an unwelcome visit last month to Beehive Botanical’s Wisconsin manufacturing facility seizing a wide range of products. According to an April 5th FDA press release, U.S. Marshals, at the FDA’s request, went to the site on March 31 and seized creams, capsules, tablets, gum, throat spray, and hair care products. The seizure was based on a complaint filed by the U.S. Attorney’s Office for the Western District of Wisconsin which alleged that the products were mislabeled and contained new unapproved drugs in violation of the Federal Food, Drug, and Cosmetic Act. On March 26, a judge issued a warrant for seizure of the products under §334 of that same Act.
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Mark "Perfecting Serum" found not descriptive for skin moisturizer
Having a policing policy helped the owner of the mark “Perfecting Serum” for skin moisturizer overcome an examiner’s charge of mere descriptiveness. Because the owner was able to show that it had taken steps to prevent third parties from using the mark other than to identify the owner’s product, the Trademark Trial and Appeal Board reversed the refusal to register the mark. The Board also found that the term “perfecting” was not commonly understood by consumers as describing a quality or feature of skin moisturizer. This case reaffirms the need to have a strong policing policy for trademarks both prior to registration and post registration.
