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Food Manufacturing magazine published Brian Dunkiel and Rebecca Boucher’s article for food producers regarding the new standards for gluten-free labeling. In August, the FDA announced the new standards that are aimed to protect those with Celiac disease. The article explains the details of the new rule and what food companies need to know to comply with the regulations and avoid the risk of regulatory enforcement action.
Brian Dunkiel and Rebecca Boucher shared their 8 Legal Tips for Green Ads with Target Marketing. The attorneys provide suggestions for avoiding potentially deceptive advertising, including avoiding general claims, such as simply claiming a product is “eco-friendly.” The tips also highlight the importance of a “reasonable consumer” in making claims.
The article also explains how the revised FTC Green Guides are a key resource for environmental marketing.
Brian regularly advises clients on the development, substantiation, approval, and defense of advertising campaigns helping green consumer product companies, renewable energy companies, marketing professionals, and others manage the legal risk presented by on-package claims, along with marketing in other media, including print, television, web video, and social media. See Brian’s full bio on his attorney page, Rebecca’s attorney page, and the Green Marketing practice area on the firm website.
photo by Will Spark
Eileen Elliott discussed the updated requirements for the new HIPAA Omniubus Rule, with a September 23 compliance deadline, with Physician’s Money Digest.
Along with enhanced breach notification requirements and Health and Human Services’ enhanced fining authority for violations, the article, New HIPAA Omnibus Rule Could be Very Costly, explains that the new rule also comes with increased liability.
“The new rule enables HHS to fine any covered entity, business associate or responsible party for a violation, while retaining the authority to charge multiple violations related to a single event, such as a breach. Monetary penalties will be tallied on a per person and per day basis.”
Eileen previously posted her six tips for healthcare providers about the new HIPAA Omnibus Rule.
Brian Dunkiel and Rebecca Boucher produced a slideshow for Food Product Design on the difficulties in making claims when marketing food products. The slideshow explains the issues with using “All Natural,” third-party certifications, packaging, and other claims, as well as discussing minimizing risk associated with making claims and providing proactive measures that food makers can take to avoid lawsuits.
Brian previously detailed the risk of using “All Natural” and “100% Natural” claims and the measures that food producers can take to protect themselves.
For the slideshow on Food Product Design’s website click here: Marketing Legally: Tips For Food Producers
Eileen Elliott spoke with The Christian Science Monitor about the Affordable Care Act, after the announcement last week that the premiums for New York’s health exchange could mean savings of more than 50% to individuals buying health insurance.
The article, Obamacare to slash premiums in New York. Was Obama right all along?, details the news for New Yorkers and highlights the effect that the Affordable Care Act is having on rates.
Eileen has been commenting on Vermont’s upcoming health exchange and recently explained how the ACA continues to apply to small businesses and individuals.
In an article published on Law360.com, Eileen Elliott comments on the recent privacy breach that is believed to involve Kim Kardashian.
The article details the privacy breaches at Cedars-Sinai Medical Center that resulted in six employees losing their jobs. Elliott discusses the hospital’s response to the employee misconduct and the difficulties in protecting celebrity privacy.
“Elliott agreed it could be tricky to balance the desire for quick access with the need for privacy, but said that, at the very least, hospitals should recognize the temptations that arise when celebrities visit and take action to draw a curtain in front of prying eyes.
‘There should be ways to encrypt or to increase security in very high-risk situations,’ she said.”
Read the full article here: Privacy Snafu at Kardashian Hospital Exposes HIPAA Hazards.
Justin McCabe discusses the historic attorney general lawsuit on Business Insider’s website and how the outcome of the case will have substantial ramifications not only in Vermont, but also in other states.
The article A New England Attorney General Is Trolling A ‘Patent Troll’ describes why he believes Vermont Attorney General William H. Sorrell is fighting MPJH, the alleged patent troll, and what details will affect the success of the lawsuit.
Read Justin’s blog posts about the attorney general suit and other intellectual property issues on the Green Mountain IP blog.
SRH Law attorneys Brian Dunkiel and Rebecca Boucher discuss the legal implications of making claims when marketing natural foods in the article Be Careful in Making Product Claims, published in the July issue of Food Processing Magazine.
The article describes some common-sense measures and other precautions that food makers can take to avoid law suits. In addition, other claims, such as using a seal of approval or certification from a third party, claiming the product is better than others, or claims about the packaging of a product, may be regulated terms or subject to legal standards.
Brian has also posted specifically about “All Natural” and “100% Natural” claims in food marketing.
A recent ruling from the Vermont Public Service Board addressed the issue of whether proposed Standard Offer projects sharing one developer and adjacent project sites constitute a single plant or two separate plants. The ruling was issued in response to a request for reconsideration filed by Ecos Energy, LLC—a renewable energy developer that submitted three proposals pursuant to the Board’s RFP selection process. We blogged about the entities that were selected pursuant to the RFP process here.
The importance of characterizing a plant as singular or in multiples arises from the size limit imposed by the Standard Offer program. For example, adjacent projects of 2.2 MW that are determined to constitute a single “plant” would together exceed this limit and, thus, one or more projects may be disqualified for consideration in the RFP process by the Board. The Board’s policy is to determine whether two projects constitute a single plant on a case-by-case basis. The present decision was prompted after Ecos appealed to the Board for reconsideration of a ruling determining that the Bennington and Apple Hill Solar projects constitute a single plant, even though the projects were to be sited on adjacent land advanced by a single developer, but were to have separate interconnection points, fencing, access roads, financing parties, and equipment. The Board upheld its earlier decision and determined that the Bennington and Apple Hill projects would constitute a single plant:
Based on our review of the site plans provided by [developer] with its request for reconsideration, it is reasonable to infer that they are a single plant. Adopting [developer’s] highly-technical interpretation of Section 8002(14) would thwart the Legislature’s intent to encourage the development of small or moderate sized plants. Under [developer’s] logic, any size facility could be constructed so long as it could be partitioned into “technically independent” 2.2 MW pieces by including redundant equipment and separating each piece by a mere fence. Such clustered development would also frustrate the Legislature’s desire to distribute these small-to-moderate sized facilities across the state’s electric grid.
The Board’s decision upholds its previous disqualification of the Apple Hill Solar project from standard-offer selection, while allowing the Bennington project to retain its selection in the RFP process. For more information, read the full decision here.
Photo via Flickr.
On May 1, 2013, Otter Creek Solar, LLC (“Otter Creek”) filed a Petition for Enforcement under the Public Utility Regulatory Policies Act of 1978 (“PURPA”), asking the Federal Energy Regulatory Commission (“Commission”) to bring an enforcement action against the Vermont Public Service Board (“Board”) because, as it alleged, the standard-offer program is inconsistent with PURPA and the Federal Power Act. Otter Creek alleged that: (1) the methodology used to establish standard-offer rates prior to statutory changes in 2013 violated PURPA’s requirement that wholesale rates equal a utility’s avoided costs; (2) the standard-offer program[1] fixes wholesale prices for utilities (other than Green Mountain Power) that are not subject to PURPA; (3) PURPA does not permit the SPEED Facilitator to be the power purchaser rather than the utilities themselves; (4) the standard-offer program constitutes a de facto rule with respect to rates under PURPA and eliminates a Qualifying Facility’s (“QF”) ability to seek an avoided cost long-run rate except through the SPEED program; and (5) the provider block is inconsistent with PURPA because it eliminates the ability of a QF to displace the additional capacity that the utilities occupy.
On the June 7th deadline for comments, the Vermont Department of Public Service (“DPS”) filed a Protest and Motion to Dismiss, addressing each of Otter Creek’s allegations and defending the standard-offer program. Also on the deadline, Green Mountain Power filed a protest, essentially joining in the filing of DPS; Burlington Electric Department filed a Motion to Intervene; the National Association of Regulatory Utility Commissions filed a Motion to Intervene and Protest (“NARUC”)[2]; and the Public Service Board (“Board”) filed a Motion to Intervene and Protest, joining in the filing of DPS.
Addressing each of Otter Creek’s claims, the DPS’s Protest was the most comprehensive. The DPS argued that, in essence, Otter Creek has no standing to set forth the claims it has made because it has suffered no identifiable injury in Vermont. DPS also argued that Otter Creek’s claims regarding the avoided cost methodology are misplaced because they are based on the previous methodology used to calculate costs, and that changes to the program in 2013 (discussed here) essentially mooted Otter Creek’s claims. DPS also defended the use of the SPEED Facilitator, arguing that this mechanism of the Standard Offer program is akin to using a purchasing agent under Rule 4.100—a practice which has been assailed before the Commission before; the Commission has never concluded that the use of a purchasing agent violates PURPA. The DPS also claimed that Otter Creek misconstrued PURPA, and that, in fact, the purchase obligations do apply to all Vermont utilities—not just Green Mountain Power. Finally, the DPS argued that the “provider block” aspect of the Standard Offer program is consistent with PURPA, because, among other reasons, it holds utilities to the same standards and terms as non-utility owned projects.
A more detailed summary of the DPS’s Protest can be found here.
It will be interesting to watch how this proceeding plays out. In practice, it is a very rare occasion for the Commission to institute an enforcement action against a state utility commission, even where the Commission determines that a state utility commission action violates PURPA. SRH Law will update this blog appropriately as this matter unfolds.
