Wednesday, June 12, 2019

FDA Food Labeling Requirements

What do a package of ground beef, a box of tortilla shells, a bag of Mexican style cheese, and a jar of salsa have in common? The best answer is that, together, they make a great meal. The second-best answer is — you guessed it — that they are all subject to the Food and Drug Administration’s guidance on food labeling. 

The FDA is responsible for ensuring that food products are properly labeled. The federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act are the federal laws governing food products under the FDA's jurisdiction. Like a lot of regulations, these laws are long, dense, and detailed, and certainly don’t make for easy reading (although they are great if you are having a bout of insomnia).

Fortunately, in January 2013, the U.S. Department of Health and Human Services issued a 132-page Food Labeling Guide. The guide unpacks and summarizes those dense, detailed laws on food labeling in an easier-to-understand way. 

Friday, May 31, 2019

Musings of a Privacy Professional

My random hopes, fears, thoughts, predictions, advice, and personal observations on GDPR, CCPA, NSA, and other privacy and data security matters:

  • Despite the intense lobbying efforts of tech companies and others, Congress — fearful of the California Consumer Privacy Protection Act (CCPA), which becomes effective January 1, 2020 — will not pass a new comprehensive federal privacy and data security law this year.
  • Plaintiffs’ lawyers will start gearing up for the class action lawsuits they hope to bring under the CCPA. Lawyers who have already benefited enormously from the Telephone Consumer Protection Act (TCPA) private right of action for noncompliant text messages and robo calls will likely add this new lucrative specialty to their practices.
  • Regarding the General Data Protection Regulation (GDPR), fatigue has set in and, except for one large fine against Google, we have seen limited enforcement actions by the Europeans. Expect to see more actions against companies who have failed to comply with GDPR requirements regarding transparency, data breach, cross-border data transfer, and data access requests. It is never too late to consider a GDPR compliance review.

Thursday, May 23, 2019

Time to Reconsider Electronic Corporate Actions?

For some companies, formal recordkeeping of corporate actions is a burdensome task. Decisions must be made quickly, and officers and directors are spread across the country or even the world.

So it’s no surprise that companies are increasingly relying on technology to communicate with officers and directors and document corporate actions. But, as a decision earlier this year by the Delaware Supreme Court illustrates, operating on such an informal basis may have unintended consequences for a company.

In its decision, the Delaware Supreme Court held that a corporation may be required to produce emails and other electronic documents to satisfy a shareholder’s legitimate request to inspect corporate books and records pursuant to §220 of the Delaware General Corporation Law. This article summarizing the case quotes the Court as holding: 

…if a company observes traditional formalities, such as documenting its actions through board minutes, resolutions, and official letters, it will likely be able to satisfy a §220 petitioner’s needs solely by producing those books and records. But if a company instead decides to conduct formal corporate business largely through informal electronic communications, it cannot use its own choice of medium to keep shareholders in the dark about the substantive information to which §220 entitles them.”

Under this ruling, the inspection rights granted under §220 are not dependent upon the existence of pending litigation but simply require that a shareholder present a proper purpose(s) and demonstrate how the requested information is “essential” to accomplishment of that purpose. 

Monday, May 20, 2019

J. D. Vance, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (Harper, 2016)

From where does the drive for excellence come? J. D. Vance’s Hillbilly Elegy — a coming-of-age memoir of a man raised in poverty — offers a perspective rooted in the culture of desperation endemic to the former coal fields of Appalachia.

This is not just a “poor boy makes good” story, though Vance manages to move gradually beyond the limited expectations of his upbringing and ultimately finds himself at an elite law school (something that the authors of this blog know a little about). This is, as one might expect, partly a paean to hard work and individualism, partly a criticism of well-intentioned government programs that actually undermine their purposes.

On the other hand, the book also makes it clear that success is not just a matter of personal effort and ability, but also a matter of personal support — which enables Vance to rise above limited horizons — and, to a greater extent, luck.

Why does one person succeed while another fails? Why does one follow a path of aspiration and another a path of desperation? Tough questions. 

Wednesday, May 8, 2019

Digital Art and Borderless Experiences

During a recent trip to Japan, I visited the Mori Building Digital Art Museum to see the teamLab Borderless gallery. teamLab is a Japanese digital art collective with temporary and permanent exhibitions in select cities throughout the world. 

The museum is unlike any art museum I’ve ever visited. It is very dark, calming electronic music fills its maze of hallways, and the art is truly borderless: it moves across the walls, ceilings, floors, and the visitors themselves. This constant immersion into the art was a truly unique experience. For instance, while you can view Van Gogh’s Sunflowers series at the Van Gogh Museum in Amsterdam, at Borderless, you are the canvas upon which digital sunflowers take root and grow.

There are multiple rooms with different interactive activities, including a space-bathed trampoline, a floating nest for visitors to view the art, and rooms of raining crystals, floating lanterns, and giant colorful balloons. Unlike most museums, visitors are encouraged to touch and interact with the artwork, and visitors can take photographs of the art and themselves in or as part of the exhibitions. Indeed, the permissibility of mobile phone photographs is one of the reasons the art gallery has exploded in popularity as its “Instagrammability” is a draw for many users who are keen to share their experiences with others. 

Thursday, April 25, 2019

Female Entrepreneurs: A Growing Trend?

Longtime entreVIEW readers — and I mean really long time readers — already know that, despite spending most of my days working with entrepreneurs, I'm a big fan of "Shark Tank".

I was recently watching an episode (which, admittedly, may not have been the most recent episode as I keep a stash of them on my DVR) with my oldest daughter. We both noticed that, for the first time, a majority of the sharks (three of five) were female. This is a long way from when the show premiered in 2009 and only one of the five sharks, Barbara Corcoran, was female. Since then, Lori Greiner (Queen of QVC) has become a regular and, more recently, Sara Blakely (founder of Spanx) and Bethenny Frankel have become frequent guest sharks.

Maybe the entrepreneurial world is finally closing the gender gap? I came across this article containing facts that may support this proposition. The article indicates that, while only one in four companies in the U.S. are run by women, the number of female-owned firms is growing twice as fast as all business. There’s also a lot of interesting analysis about other significant differences between the sexes in how and why women start and run enterprises.

Wednesday, April 17, 2019

What does the new EU Copyright Law have to do with my small business? Perhaps more than you think…

On April 15, 2019, the European Council approved the “Directive on Copyright in the Digital Single Market” — a major change to EU copyright law that was approved by the parliament of the European Union on March 26, 2019 with a vote of 348 yea, 274 nay, and 36 abstentions. The Directive’s next step will be publication in the Official Journal of the EU, after which member states will have two years to implement the Directive into their national laws.

What is the Directive and why might it matter for my small business?

The Directive is completely changing the copyright landscape in the EU – but given the global nature of the World Wide Web, it is likely to alter business practices around the world. 

The Directive’s greatest changes are to websites with user-generated content. Such websites include not only YouTube and Facebook, but also sites like Medium and blogs and commentary sites as well. If you have a website that contains user-generated content that touches the EU in any way, you may be responsible for making sure that content does not infringe copyright laws.

Over the last several months the Directive has been heavily criticized, particularly due to Articles 15 and 17 (formerly Articles 11 and 13), respectively the so-called “link tax” clause and “upload filter” clause. Prior to the vote by parliament, protestors took to the streets of Europe, cautioning that the Directive will “censor the internet.” Meanwhile, the author of the legislation and his supporters tout it as necessary to “protect and strengthen the rights of the creatives: authors, performers, singers, songwriters, journalists . . . all copyright-holders.”