Restaurant Menus Will Soon Change, FDA Issues Guidance

The U.S. Food and Drug Administration (FDA) issued a press release, dated August 24, 2010, providing guidance and outlining steps to help chain restaurants comply with new federal nutrition labeling requirements. The new law applies to restaurants and similar retail food establishments with 20 or more locations. The law requires the establishment to list calorie content information for standard menu items on restaurant menus and menu boards, including drive-through menu boards. Other nutrient information – total calories, fat, saturated fat, cholesterol, sodium, total carbohydrates, sugars, fiber and total protein – would have to be made available in writing upon request.

In the press release, FDA Commissioner Margaret Hamburg, M.D. said

One of the most important things we can do when it comes to the nation’s health is to provide simple basic information to the American people so they can make choices that are best for them and their family. The menu labeling program will help Americans get the facts about food choices that are available to them in restaurants and vending machines so they know what is in the food and can make healthier selections.

The FDA has until March 23, 2011 to carry out these provisions. FDA has issued guidance documents to help restaruants get started. The FDA is soliciting feedback now, if you want your voice heard, respond to FDA's Federal Register Notice by October 21, 2010.

OWIT-South Florida - Get to Know this Group

On January 27, 2010 you will have the opportunity to meet the new Board of Directors for the Organization of Women in International Trade's South Florida Chapter-- don't miss this networking opportunity.   OWIT-South Florida is a networking and educational organization that promotes women and men in international trade and commerce.

As the incoming President to this group, I'll admit I'm biased, but, I do have say, this is a great group to get to know.  We have representation on our Board from Adobe, C.H. Robinson, Kroll, Robertson Forwarding, UPS, and Mastercard to name a few.  Meet us personally at my firm, Becker & Poliakoff's Coral Gables office on January 27th, from 6-8 p.m., you'll be glad you did.

Upcoming must attend events:

• February 17, 2010 - Are You "Women Certified?" Delia Passi, founder of Broward-based Women Certified, talks about her firm's mission to teach companies, especially sales people, how to sell to and retain female consumers.
• March 24, 2010 - Crisis? What Crisis? If your firm faces a reputational tsunami, call the "trouble valet."  Judy Miller, CEO, JM Advisory and former Pulitzer-prize winning investigative journalist, explains how she helps companies in stressful situations avoid reputational meltdown.
• November 2, 2010 - Hear Donna Shalala speak at our annual International Business Women of the Year (IBWOY) awards.

Get Involved!  Join one of our several committees.  Reach out to our Committee Chairs to learn more.

Join OWIT-South Florida on Linked In as well and start a discussion - let us know what you'd like to see with OWIT-South Florida in 2010!

I look forward to making membership in OWIT-South Florida a worthwhile and fun experience. If you ever have questions, comments or program ideas, I am always interested in your feedback and want to make sure this organization is a valuable asset to everyone involved. Please feel free to contact me directly with questions and comments.  See you January 27th!

Intellectual Property Rights are High Priority for CBP

U.S. Customs and Border Protection (CBP) takes Intellectual Property Rights (IPR) enforcement very seriously, in fact, its a priority.  Shipments not destined for the U.S., that are merely in transit (for example from China for a brief stop in Miami to the ultimate destination in Latin America), are no exception.  The fact that CBP enforces IPR rights for in transit merchandise surprises many -- but lets face it, if CBP is to protect IPR rights, why should it stop at products solely destined for the U.S.?  If you took the time to register your trademark or copyright with the U.S. Patent and Trademark Office and then took the extra step to record that trademark or copyright with CBP, wouldn't you want CBP to stop infringers, even if they are just passing through for a brief moment?  Check to see if a company has taken that extra step to record their IPR here.

CBP publishes IPR statistics yearly.  The statistics for 2009 were recently published in December of 2009.  There were 14,841 seizures from IPR violations.  Of no surprise, China was the top trading partner for IPR seizures in FY 2009 with a domestic value of $204.7 million in counterfeit merchandise, accounting for 79% of the total value seized.  Footwear was the top commodity seized in FY 2009 with a domestic value of
$99.7 million, which accounted for 38% of the entire value of infringing goods.  Consumer electronics was a distant second at $31.7 million, accounting for 12% of the seizure pie.   Footwear and consumer electronics combined make up half of the total seizures. 

What's important to note is this:

1. Even if your merchandise is in transit, if it doesn't comply with U.S. regulations, it may still be seized and forfeited to the U.S. government.
2. Seek an experienced attorney to respond to your Seizure Notice (we can come up with creative solutions to get your merchandise back).
3. On top of the seizure, you may also receive a penalty (for the MSRP of the goods as if they were genuine).  
4. If you are doing business with a Chinese company (especially if dealing in footwear and/or consumer electronics) do your due diligence first.
5. Create your pre-compliance plan.  Have your trademark license agreements handy and work with counsel to present the agreements to CBP in advance of importation.

January 26, 2010 – Do You Have An ISF Plan?

During the annual Customs Symposium, which took place December 8-10, 2009, Richard DeNucci, the Director of Customs Office of Field Operations, Trade Initiatives, discussed how CBP will enforce ISF(Importer Security Filing, aka 10+2) penalties, beginning January 26, 2010, and provided interesting statistics thus far. ISF will require both importers and carriers to submit additional information pertaining to cargo to CBP before the cargo is brought into the United States by vessel. FAQ’s on ISF filing may be found here.  Non compliant ISF filings can be costly, at $5,000 per violation.

Mr. DeNucci stated that Customs would be “reasonable and equitable” with ISF timeliness issues and will use the “least amount of force to ensure compliance.” When addressing DNL’s (do not loads), Mr. DeNucci stated this “is not something CBP will take lightly.” I personally am interested to see how this plays out, as CBP’s mitigation guidelines are not that forgiving.

From January 26, 2009 to December 6, 2009, there were 3.65 million ISF filings, and 103,000 ISF filers. The most impressive part of this statistic is that 95% of these filers received an acceptance rate, meaning only 5% of the filers would have potentially faced ISF penalties for issues with filing. During this same time period, CBP reviewed more than 6,475 stow plans and 106 million container status messages. Interestingly, CBP noticed the highest volumes of filings on a Friday – apparently everyone is either a procrastinator or a go-getter, filing early.

Important notes regarding ISF:

1. There will be report cards, they will address the volume, error message and timeliness (and will be available through the FOIA (Freedom of Information Act) process.
2. CBP discussed a current bill in Congress which states ISF data will only be used for “security purposes” not for “trade compliance.”
3. The main CBP contacts in Headquarters are: Richard DeNucci, John Jurgutis, and Stephen Silvestri.
4. The main CBP contacts in the field are: Edward Moriarty and Joseph Martella .
5. Unified filings (entry + 10+2) may lead to an earlier release.
6. CBP recently updated the “Security Filing Transaction Sets” link which discusses applicable formats to send information to CBP.

With the January 26, 2010 enforcement date around the corner, it is time to make sure you have an ISF plan.