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Entries in restaurant business (14)

Friday
Jun152018

Killer Coffee? California May Exempt Coffee Industry from Prop 65 Warning Requirements

Environmental Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer

818.907.3299

 

We told you about the lawsuit brought against nearly 100 food industry companies regarding the lack of Prop 65 warnings in restaurants and stores selling coffee. The problem is the potential presence of acrylamide when coffee is roasted or brewed – one of the many chemicals known to the State of California to cause cancer or reproductive damage.    

Under California law, businesses with 10 or more employees must post Prop 65 warning signs and labels on the premises or on food packaging, warning consumers of possible exposure to these health risks.

In May of 2018, a Los Angeles Superior Court finalized a tentative ruling stating the Defendants (which include major chains like Starbucks, Dunkin’ Donuts and others) failed to show that acrylamide in coffee posed no significant risk.

But there’s something new brewing: The Office of Environmental Health Hazard Assessment (OEHHA) may try to sweeten an otherwise bitter situation. The Office is proposing adding a new section to Article 7 of Title 27 of the California Code of Regulations section 25704. The new section would state that exposures to acrylamide from coffee pose no risk of cancer.

The catch is the proposal has to undergo a public hearing in August 16, 2018 in Sacramento, and a written comment period that ends at the end of August. Written comments can be sent to:

Ms. Monet Vela

Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010

Telephone: 916-323-2517
Fax:  916-323-2610

Email: monet.vela@oehha.ca.gov

Coffee retailers, restaurant owners, distributors, importers and resellers who don’t want to label packaging or post signage at their place of business regarding acrylamide in coffee should act quickly.  

But these same businesses and nearly every other one in California are also reminded that the Prop 65 text on signs and labels needs as of August 30, 2018 to change on other products that contain potentially toxic substances. Please read OEHHA’s New Prop 65 Warnings for the specific requirements.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group and a Shareholder in our Business Litigtion Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May092018

Court’s Prop 65 Ruling a Great “Brewhaha” for Coffee Retailers

Environmental Litigation AttorneyProp 65 Defense Attorney

 

 

 

Stephen T. Holzer

818.907.3299

 

 

In 2010, a nonprofit group called The Council for Education and Research on Toxics (CERT) brought a lawsuit against 91 commercial coffee roasters, retailers and distributors. 

CERT claimed the defendants failed to provide warnings regarding high levels of acrylamide, thus violating the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as California’s Proposition 65. The law requires companies with 10 or more employees warn consumers and others of any exposure to more than 900 confirmed or suspected carcinogens, including acrylamide, at the point of sale.

In late March, Los Angeles Superior Court Judge Elihu Berle tentatively decided in favor of CERT. The Court ruled that Starbucks and other companies failed to show there was no significant risk from acrylamide produced in the coffee roasting process and that cancer warning labels must be placed on their products in California.

That ruling has now been finalized. Barring a successful appeal, it appears that the law will force retailers either to post the Prop 65 warnings, or find ways to remove acrylamide from the coffee.

Prop 65: Signs of the Times

Businesses in California should take note: New compliance rules for Prop 65 take effect as of August 30, 2018. That leaves just a few months to ensure your signage or product packaging is complete and accurate. Generic warnings will no longer suffice.

Some of the new rules include the following requirements (for more details, see 27 California Code of Regulations [“CCR” §25603, Consumer Product Exposure Warnings – Content]:

  1. WARNING” must appear in the sign in bold and with all capital letters.

  2. The sign must also generally include a yellow equilateral triangle outlined in black, with a black exclamation point in the center. This symbol must be at least as high as the word “WARNING.”

  3. Premises signage must contain the specific name of the toxic substance found in the product sold.

  4. Product labels do not need the chemical name, but must include requirements 1 and 2, above.

  5. If warning labels and signs are given in another language, businesses must also provide them in English.

Stephen T. Holzer is the Chair of our Environmental Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jan292018

Su-PERFLUO-us? More Chemicals Added to Prop 65 List

Environmental Litigation AttorneyEnvironmental Litigation Defense Attorney

 

Stephen T. Holzer

818.907.3299

 

Business owners manufacturing, buying, selling, or importing products in California already know about the state’s Prop 65 law. But do they also know every single chemical or substance that is on that list?

PFAs in food containersThey couldn’t possibly unless gifted with total recall, and even then they would have to keep up with numerous revisions made by the state’s Office of Environmental Health Hazard Assessment (OEHHA). As of December, nearly 1,000 contaminants have been added over the past 30 or so years – substances that are known to the State of California “to cause cancer or reproductive toxicity.”

Some recent additions to the list are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), members of the perfluoroalkyl substances (PFASs) family of chemicals.

As of now, the State has not determined a Maximum Allowable Dose Level. The federal Environmental Protection Agency however, established a drinking water health advisory level at 70 parts per trillion. Nevertheless, California businesses with 10 or more employees must provide warning labels on products that contain these PFOs, and in buildings where PFOA or PFOS may exist.

The chemicals are widely used to protect products from moisture and potential stains and to reduce friction in mechanical industries. So which businesses will most likely be affected?

  • Food Manufacturers & Packagers (packaged foods with coated paper);

  • Restaurants & Other Food Vendors (seafood or fish from water contaminated by PFOS, take-out containers, pizza boxes, popcorn bags, etc.);

  • Manufacturers (cosmetics, camping equipment, water/stain resistant clothing, water/stain resistant treatment products for clothing or furniture, carpeting, etc.);

  • Commercial Building owners and managers;

  • Retailers and Distributors dealing with any of the above.

PFOsAccording to the EPA, the contaminants aren’t made in the U.S. anymore – but PFOAs and PFOSs still show up in many imported products. And they don’t biodegrade well, thus the recent concerns regarding their presence in groundwater, fish, etc.

Anyone dealing in these and other products that contain PFOAs or PFOSs in California should post a Prop 65 warning label on products that contain these contaminants, and in buildings where employees or consumers may be exposed to the chemicals. 

Stephen T. Holzer is a Business Litigation Attorney and Chair of our Environmental Practice Group. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Nov162017

Restaurant Industry Gets Another Chance to Chime in on Menu Labeling

CalBar Certified Franchise & Distribution Law Specialist

by Barry Kurtz

818-907-3006

 

Franchisors in the food service industry have until January 18, 2018 to comment on the latest version of the Food & Drug Administration’s Menu Labeling Guidance. The FDA released the draft November 7th. This version includes pictorial suggestions for how consumer information might be displayed under certain circumstances.

The currently non-binding recommendations aim to clarify options for menu labeling compliance and will eventually affect any food and beverage retailer, including those selling self-service foods and buffet operators.

 

Special Orders: The ABCs of Menu Labeling

 

Caloric information is the key ingredient in menu labeling requirements. But the FDA is now taking a more cooperative approach to handling special situations:

All You Can Eat: In the current draft, signage regarding serving size and calories are not required next to every food item offered on a buffet. However, the info must be available to consumers in other forms, i.e. gel window-clings on sneeze guards or on menu boards.

Speaking of menu boards, restaurant owners need not provide one at their businesses if they do not already display a menu.

On the other hand, if a menu board is available on site, it must be updated to include nutrition information. Digital kiosks or other devices, hand-held menus, etc., may also be used to convey consumer info about nutrition.

By the Bucket or Bowl: Family style restaurants like Maggiano’s will be required to provide caloric info for the whole (multiple serving) menu item sold. However, family-style restaurants may relay additional information, such as the suggested number of individual servings and calories per serving of that item. The FDA offers this example:

Family-Style Salad: 1,200 Cal: 150 Cal/serving, 8 servings

Beer, Wine, Cocktails: If the choices are listed on a menu or menu board, nutrition should also be displayed. “Display” foods are not subject to the labeling requirements. These include beers served on tap.

Seasonal beers (pumpkin spiced ale, anyone?) on the menu are also exempt from labeling requirements provided they are not available for more than 60 days per year.

Customer Crafted Menu Items: The FDA now offers “build-your-own” restaurants like Chipotle or PizzaRev a bit of flexibility. The Administration suggests this type of restaurant group customer options, i.e. pizza crusts, sauce choices and toppings so that consumers can quickly calculate which options provide the most and least amount of calories per slice or serving. 

Chef’s Choice: Food selections based on seasonal produce or other items that change on a daily basis are not subject to the nutrition labeling guidance, UNLESS, these selections appear regularly. So a restaurant that serves clam chowder every third Friday will have to provide nutrition information.

Self Service Foods: Food and beverages in soda machines; grab and go donut cases, sandwich or salad coolers; rotisserie chicken warming carts and similar displays and dispensers all fall under the self-service or food-on-display categories.

Pre-packaged foods like sandwiches prepared on site but already wrapped for customer convenience should display an FOP, or “front of pack” label with calorie information.

Donut cases and beverage dispensers found in grocery or convenience stores contain unpackaged foods. A label can be affixed to the dispenser or display case detailing information for each choice available, or displayed on signage nearby.

 

To Lab Test, or Not To Lab Test?

 

 

The FDA will not require restaurants to submit menu items to food labs to determine nutrition information. But legitimate options for determining calorie and other data are required. The Administration recommends using one of the following:

  • Laboratory Analysis
  • USDA National Nutrient Database
  • Trade Association or Industry Databases
  • Alcohol and Tobacco Tax and Trade Bureau Methods for Analysis
  • Cookbook Listings
  • Other reasonable means

If opting for other reasonable means, records must be maintained at corporate headquarters or the restaurant’s main office in case the FDA requests the data and method used to substantiate the information.

 

Chain Stores and Co-Ops

 

Independent franchises, cooperatives, grocery chains and similar businesses not selling substantially similar foods from location to location are not considered “covered establishments” as far as the FDA Menu Labeling Guidance is concerned. “Covered Establishments” include businesses that:

  • Have 20 or more locations
  • Do business under the same name
  • Sell substantially same menu items
  • Sell food eaten on premises or food that may be taken away

So a gasoline franchisee of a major chain that also operates an independently owned mini-mart under a different name would not be considered a “covered establishment”.

 

The Wrap Up

 

Again, the Administration decided to take a more flexible approach in their rules regarding nutrition labeling, and work more cooperatively with covered establishments:

. . . our typical approach following an inspection would be to raise any compliance concerns with the most responsible person (e.g., the manager or owner) at a covered establishment during a close-out inspection meeting or in regulatory meetings with that establishment. If post-inspection issues remain, we may send a letter to the establishment asking for the firm to come into compliance. Any enforcement activities we pursue will be consistent with our public health priorities. . .

All in all, this seems like a much more feasible plan than the 2014 Final Rule previously published.

Barry Kurtz is the Chair of Lewitt Hackman's Franchise & Distribution Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Oct272017

Beep: Your Hamburger is Ready

CalBar Certified Franchise & Distribution Law Specialist

by Barry Kurtz

818-907-3006

 

Analysts predict robots may take nearly 40 percent of U.S. jobs – particularly the ones that require lower education levels – in the next 15-20 years. The study was released by PricewaterhouseCoopers, and was based on anticipated technological progress, which leaves a lot of room for error.

Not all jobs can be staffed with tech though, as Microsoft cofounder Bill Gates illustrates when talking about the fast-rising trend.

He supports a robot tax on businesses that use Artificial Intelligence (AI) to replace human employees. The revenues could be used to train people to fulfill other jobs, like those in teaching or elder-care, where a human component is much more important. It would also help slow the rush to acquire AI.

Gates told Quartz news outlet:

So if you can take the labor that used to do the thing automation replaces, and financially and training-wise and fulfillment-wise have that person go off and do these other things, then you’re net ahead. But you can’t just give up that income tax, because that’s part of how you’ve been funding that level of human workers...

Taxing questions aside, many hospitality franchisors find themselves facing a dilemma: Invest in people, or invest in tech?

Some Franchises Bet Heavily on Tech

Drone Delivery RoboticsReplacing humans with AI is still relatively expensive today, and not exactly a guarantee of larger profits at this time. But some franchises are throwing down a lot of chips on AI development. Why?

For one thing, restaurant jobs, particularly those around a hot grill or spitting fryer can be dangerous. And it’s hard work that not everyone wants.

Burger bot “Flippy” developed by Pasadena-based Miso Robotics with franchisor CaliBurger can cost upwards of $60k, according to TechCrunch. But it will never report to work tired, hungover, or in any state that may result in workers’ comp claims. It also won’t demand higher wages.

Domino’s delivers, as we all know. But food delivery can also be dangerous, which is one reason the chain invests heavily in tech.

The pizza franchisor developed Domino’s Robotic Unit (DRU), a four-wheeled autonomous delivery vehicle. Though DRU will be able to navigate the best route to a customer’s door, it has not yet been activated to serve, as the robot vehicle is still being tested. The DRU Drone is also in development, and may lift off for first deliveries in New Zealand in February.

Restaurant chain (not a franchise) Shake Shack opened a high traffic location in New York’s East Village. The restaurant features kiosk-only ordering and cashless transactions. When the food is ready, the diner can opt to receive a text message to pick up a tray, or go with the old school shout out.

Shake Shack still employs humans to provide customer assistance, cook, and expedite the food at this restaurant location.

Hoteliers are also embracing a new wave in AI services. AURA is the first robot in Asia to provide room services – delivering towels, water and more. And a Marriott in Belgium deployed a bot that addresses vacationers and business travelers in 19 different languages.

What Should Franchisors Know About AI?

Hi Tech Burger

As always, when considering upgraded tech for a chain, consider the needs of individual locations. Right now there are more questions than answers:

  • Will a loyal, profitable franchisee balk at having to deploy AI?

  • Will the leased or owned property of the franchisee accommodate robot workers?

  • Will the costs for AI create substantial reductions in comparison with employee-related expenses, and more profits for the operators?

  • Will the public accept AI as a substitute for smiling wait staff and cashiers?

  • Will ordering kiosks and robotic workers be a turn-off (in locales where unemployment rates might be very high), or a draw (like the hotel mentioned above attracting millennial clientele)?

But also remember that some AI can be used behind the scenes, e.g. in certain food prep tasks, to analyze marketing trends, fold hotel linens, etc.).

Whatever the industry, don’t be afraid to embrace the tech. Just be sure to look both ways before crossing fully into the digital realm.

Barry Kurtz is the Chair of Lewitt Hackman's Franchise & Distribution Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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