Freeborn & Peters’ New Look & New Promise!

On March 28, 2013, Freeborn & Peters LLP launched a new website and announced a new promise to our clients.  At Freeborn:
“Your Future Is Our Purpose.“
When we say Your Future Is Our Purpose, our goal is to help your business grow and develop to its highest purpose.  To this…

PACA Trust Litigation Alert

PACA Trust Litigation Alert
On March 26, 2013, a civil action was filed in California against So Cal Fresh Choice, Inc. d/b/a Upland Farmers Market to collect about $15,000.00 in alleged PACA trust debt.
Please check your A/R to see if this case affects you.  If it does, please do not wait to…

New Trademark Clearinghouse Offers Protection for Your Trademarks in Cyberspace

If you operate in the food space and offer branded products and/or if your company name is valuable, please  read this entry.  Beginning on March 26, 2013, you will be able to record your trademarks with the Trademark Clearinghouse, which will help protect your marks from being registered as a…

PACA Trust Litigation Alert

PACA Trust Litigation Alert
On March 20, 2013, a civil action was filed in New Jersey against Morris Avenue USA Corporation t/a Associated Supermarket to collect about $21,400.00 in alleged PACA trust debt.
On March 21, 2013, a civil action was filed in California against Chieftain Harvesting,…

PACA Trust Litigation Alert!

PACA Trust Litigation Alert
On March 13, 2013, a civil action was filed in New York against Dutchie Enterprises LLC d/b/a ADJ Wholesale Produce to collect about $82,000.00 in alleged PACA trust debt.
On March 14, 2013, a civil action was filed in Florida against Quality Fruit…

UPDATE: East Coast Brokers & Packers Bankruptcy

On March 14, 2013, SeaFax reported that:

East Coast Brokers & Packers Inc and six of its affiliates, Circle M Ranch Inc, Ruskin Vegetable Corporation, Oakwood Place Inc, Byrd Foods of Virginia Inc, Eastern Shore Properties Inc and Stellaro Bay Inc, and the companies’ principals,…

FDA Reopens Comment Period for Draft Risk Assessment for Food Facilities

As reported by The Packer (and announced by the FDA), “the FDA is reopening the comment period for a draft risk assessment for certain food facilities that include farm packing operations for fresh fruits and vegetables.”  See FDA Reopens Comment Period on Food Facilities.
To be…

Jason Klinowski to Speak at Upcoming Arthur J. Gallagher & Co. Food Industry Event

On Thursday, May 9, 2013, Jason Klinowski will be one of three panel speakers addressing the “Hottest Topics in Food Today” at a food industry event hosted by Arthur J. Gallagher & Co.  The topics the panel speakers will cover at this event include new food safety technology…

East Coast Brokers & Packers Files for Bankruptcy Protection

East Coast BrokersOn March 6, 2013, East Coast Brokers & Packers, Inc. (“East Coast Brokers”) filed a Ch. 11 bankruptcy in the Middle District of Florida.  Along with East Coast Brokers, Circle M Ranch, Inc., Ruskin Vegetable Corporation, Oakwood Place, Inc. and both Batista J. Madonia, Sr. and Evelyn M. Madonia all filed for bankruptcy protection.  The Debtors are currently seeking the Court’s permission to administer all of the separately filed bankruptcy cases jointly.

Although the Debtors have not (as of the time of this entry) filed their schedules or list of top 20 creditors, court documents show that all of the debtors are “closely intertwined” and that the Madonias own at least 20% of the shares for each of the entities listed above.  The Debtors did acknowledge that they owe “significant debts” and cited MetLife Agricultural Investments as an example of a creditor to whom they owe about $46 Million.  The Debtors’ court documents also acknowledged owing money to Anthony Marano Company, Crop Production, and Triangle Chemical.

For those of you familiar with East Coast Brokers and the Madonias, you may remember that various news sources reported that East Coast “quit tomatoes” back in December of 2012 and that they owed “more than $15 million in judgments and liens to state and federal governments and crop production services.”  At that time, Anthony Marano Company was reported to hold a $5.6 million dollar lien against East Coast Brokers.”  See East Coast Brokers Quit Tomatoes

Counsel for East Coast Brokers should be filing various first day motions and the balance of its schedules in the very near future.  These filings will contain additional information.  Right now, we know that claims are due on May 20, 2013.

What you Need to Know About Administrative Detention of Foods – New FSMA Guidence

FDA LogoThe FDA recently issued a revised industry guidance document titled: What You Need to Know About Administrative Detention of Foods Small Entity Compliance.  Utilizing a question and answer format, this industry guidance document contains some valuable information.  Here are some of the highlights you need to know:

Why is administrative detention needed?

Administrative detention provides a means through which FDA can hold adulterated or misbranded food and prevent it from reaching the marketplace, thus further enhancing FDA’s ability to ensure the safety of food for U.S. consumers.

What food is subject to administrative detention?

The term food refers to (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article (section 201(f) of the FD&C Act [21 U.S.C. § 321(f)]).  The term food also refers to dietary supplements, which are to be treated as food under the FD&C Act (section 201(ff) [21 U.S.C. § 321(ff)]).

How long may FDA administratively detain an article of food?

FDA may detain an article of food for a reasonable period, not to exceed 20 calendar days, after the detention order is issued. However, an article of food may be detained for 10 additional calendar days if a greater period of time is required to institute a seizure or injunction action. The entire detention period may not exceed 30 calendar days (21 CFR 1.379).

What criteria does FDA use to order an administrative detention?

An officer or qualified employee of FDA may order the administrative detention of any article of food that is found during an inspection, examination, or investigation under the FD&C Act if the officer or qualified employee has reason to believe that the article of food is adulterated or misbranded (21 CFR 1.378).

May an administratively detained article of food be delivered to another entity or transferred to another location?

It is a prohibited act under section 301(bb) of the FD&C Act [21 U.S.C. 331(bb)] to transfer an article of food subject to an administrative detention order and/or to alter or remove any mark or label that identifies an article of food as administratively detained.

Can an administrative detention order be modified?

FDA may approve a request for modification of an administrative detention order to allow for the destruction of the article of food or movement of the detained article of food to a secure facility, to maintain or preserve the integrity or quality of the article of food, or for any other purpose that the authorized FDA representative believes is appropriate in the case (21 CFR 1.381(c)).

What’s the difference between an import detention and administrative detention?

FDA’s authority to administratively detain food under section 304(h) of the FD&C Act [21 U.S.C. 334(h)] is separate and distinct from detention that may occur during FDA’s import admissibility review. Under section 801(a) of the FD&C Act [21 U.S.C. 334(h)], when food is imported or offered for import into the United States, FDA conducts an admissibility review to determined whether to admit the product into United States or detain the product.

On the other hand for administrative detentions under section 304(h) of the FD&C Act, FDA will issue an order to the owner of the suspect food notifying him that FDA is administratively detaining the food and that he has an opportunity to appeal the detention with or without a hearing (see 21 CFR Part 1 Subpart K).

When does an administrative detention order terminate?

If FDA terminates an administrative detention order or the detention period expires, an authorized FDA representative will issue an administrative detention termination notice to any person who received the detention order (or that person’s representative), releasing the article of food, as quickly as possible. If FDA fails to issue an administrative detention termination notice and the detention period expires, the administrative detention is deemed to be terminated (21 CFR 1.384).

Who pays the costs associated with the detention order, such as storage, moving, disposal or reconditioning?

As stated in the preamble to the 2004 final rule (69 Federal Register 31659 at 31690), the party or parties responsible for paying the storage costs of food that FDA orders administratively detained is a matter between the private parties involved with the food. FDA is not liable for those costs. An owner, operator, or agent in charge of the place where the food is located can always request modification of a detention order to destroy the food if they do not want to store it.

Please take the time to read the entire guidance document.  It contains information about your rights and other deadlines that become very important if your product is administratively detained.