Food Safety Modernization Act Update: the Food Safety Modernization Act (FSMA) was passed on
January 4, 2011 by the U.S. Congress. The law requires FDA to implement standards to be followed by
food production facilities within the United States, as a measure to prevent food-borne illnesses. These
regulations must be finalized by the summer of 2012. The Act also affects importers of food by allowing
FDA to refuse entry to food whose production facility does not allow FDA access to its premises, and
allows FDA to refuse entry to foods it has certified as "high risk" unless the originating foreign food
facility can demonstrate compliance with U.S. food production standards. In early 2013, FDA is required
to provide procedures that will allow foreign food production facilities to obtain certification that their food
production is in accordance with U.S. standards. See the FDA website for the text of the FSMA.
Mar. 29, 2011: Indian FDA has seized thousands of packages of Unilever's Brooke Bond Red Label
Tea, for making unauthorized health claims relating to antioxidants, reports the Times of India. The Red
Label packaging had claimed the product to be "a rich natural source of antioxidant flavonoids that
protect cells and tissue in your body," a claim the Indian FDA views as misleading.
Sept. 8, 2010: US FDA has issued warnings to Lipton Tea and Canada Dry for advertising the positive
health effects of green tea on packaging, reports CBS News. The FDA continues to take the position
that no ingredient in green tea has been recognized as an antioxidant.
Jun. 21, 2010: Nominet, the registry for the .uk domain name has been directed to transfer the
registrations for the domain names "dilmahtea.co.uk," "dilmah.co.uk," and "dilmah-tea.co.uk" to the
Sri-Lanka based owner of the "Dilmah" trademark. In Merill J. Fernando & Sons (Pvt.) Ltd. v. Hewitt,
[2010] DRS 8436 (21 Jun. 2010), Merill J. Fernando & Sons (MJFS), which has marketed tea under the
"Dilmah" name, and registered that mark in the United Kingdom and European Union, succeeded in
showing that the use of similar domain names by an individual in England would cause confusion to tea
consumers. The arbitrator directed that the domain name registrations be transferred to MJFS.
Mar. 9, 2010: the U.S. Department of Agriculture's Inspector-General released 14 recommendations for
strengthening the USDA's National Organic Program (NOP), particularly with respect to improving
enforcement of NOP regulations and standards, and improving oversight of certifying agents for
products labeled as "organic."
Mar. 4, 2010: the U.S. Food and Drug Administration (FDA) issued warning letters in February, 2010 to
seventeen food manufacturers, including makers of three tea products, reports the World Tea News.
The warning letters against the tea sellers were focused on unauthorized claims made concerning
antioxidants in tea and claims that tea drinking can treat or reduce the risk of cancer. No such health
claims for tea have been approved by the FDA. Although the issue of advertising the antioxidant effects
of polyphenols in tea remains an open one with the FDA.
Nov. 13, 2009: the California Court of Appeal in Kim Seng Co. v. Great American Insurance Co. of N.Y.,
No. B208699 (Cal. App. Nov. 13, 2009), denied insurance coverage for a food wholesaler to pay for the
defense of a trademark infringement suit. The court acknowledged that "advertising injury" coverage in
most commercial general liability policies covered trademark infringement liability. However, under the
"prior publication" exclusion, also present in many policies, an insurer has no duty to defend the insured
if the trademark supposedly infringed was first used before the insured obtained insurance. The Kim
Seng Co. court also concluded that the insurer was entitled to deny coverage under the policy even if
the insured was not found to have infringed the original trademark, since the test for determining
trademark infringement and the test for determining substantial similarity between the two marks for
insurance law purposes were different. This decision will be significant for those in the tea industry
selling products under names similar to their competitors, since the availability of insurance coverage will
determine whether the company has to pay for its own defense in a trademark infringement lawsuit.
Nov. 11, 2009: the Taiwanese Department of Health has begun investigating a shipment of tea to the
Taiwan National Palace Museum, said to contain tea leaves violating Taiwan's maximum residual levels
(MRL's) for pesticides present in food reports the Taiwan News.
Nov. 7, 2009: support for electronic tea auctions appears to have greater support among tea traders in
Kenya than in India, reports The Hindu. The Tea Board of India has been attempting to implement
e-auctions, but has faced resistance from traders, whereas the Kenyan Tea Board has been called
upon by its constituents to implement tea auctions in that country.
Oct. 15, 2009: the European Commission has indicated it will allow six months for the filing of public
comments on the Tea Board of India's application for the registration of Darjeeling Tea as a protected
geographical indication (GI) under EU law, reports Food Biz Daily. This is seen by some as an
encouraging sign that the Commission may be inclined to grant GI protection to Darjeeling.
Jun. 11, 2009: the Tea Board of India's introduction of cash and carry requirements for brokers at tea
auctions are being blamed for a short-term price fall at tea auctions, reports the Hindu Business Line. It
is believed that brokers who are now unable to obtain additional extensions of credit are essentially
unable or unwilling to pay higher prices. However, as tea prices rise globally, buyers are expected to
resume paying higher prices within a month's time.
Jun. 9, 2009: China's Ministry of Commerce reports that China's tea exports are expected to remain
steady throughout 2009, in spite of a drop in exports generally. China represents the world's largest tea
producer and its third largest tea exporter.
Apr. 30, 2009: the Tea Board of India will introduce cash and carry requirements for brokers
participating in tea auctions in northern India, beginning the first week of June, 2009, reports the
Economic Times. The Tea Board will go forward with the new regulations, after approving five banks at
which brokers will be required to open accounts. The new cash and carry regulations are said to be
needed after earlier defaults by auctioneers on payments to tea producers. The Tea Board intends to
enforce cash and carry requirements throughout India by October.
Aug. 12, 2008: the EU-China News reports that the European Commission has held firm on new
maximum residual levels (MRL's) for pesticides in imported food, in spite of the possibility that the new
MRL's may lead to the exclusion of some tea originating in China.
Jul. 6, 2008: Indian tea growers in Upper Assam and West Bengal have called upon the Indian Tea
Research Association (TRA) to take action to aid tea producers with the pest problems associated with
tea companies' adherence to strict maximum residual levels (MRL's) for pesticides in their finished
product, reports the Assam Tribune. Pest control is difficult where producers are not able to regularly
spray crops with pesticides, however, increased pesticide levels threaten to hamper tea's exportability
by violating the MRL's imposed by many countries' import laws.
January 4, 2011 by the U.S. Congress. The law requires FDA to implement standards to be followed by
food production facilities within the United States, as a measure to prevent food-borne illnesses. These
regulations must be finalized by the summer of 2012. The Act also affects importers of food by allowing
FDA to refuse entry to food whose production facility does not allow FDA access to its premises, and
allows FDA to refuse entry to foods it has certified as "high risk" unless the originating foreign food
facility can demonstrate compliance with U.S. food production standards. In early 2013, FDA is required
to provide procedures that will allow foreign food production facilities to obtain certification that their food
production is in accordance with U.S. standards. See the FDA website for the text of the FSMA.
Mar. 29, 2011: Indian FDA has seized thousands of packages of Unilever's Brooke Bond Red Label
Tea, for making unauthorized health claims relating to antioxidants, reports the Times of India. The Red
Label packaging had claimed the product to be "a rich natural source of antioxidant flavonoids that
protect cells and tissue in your body," a claim the Indian FDA views as misleading.
Sept. 8, 2010: US FDA has issued warnings to Lipton Tea and Canada Dry for advertising the positive
health effects of green tea on packaging, reports CBS News. The FDA continues to take the position
that no ingredient in green tea has been recognized as an antioxidant.
Jun. 21, 2010: Nominet, the registry for the .uk domain name has been directed to transfer the
registrations for the domain names "dilmahtea.co.uk," "dilmah.co.uk," and "dilmah-tea.co.uk" to the
Sri-Lanka based owner of the "Dilmah" trademark. In Merill J. Fernando & Sons (Pvt.) Ltd. v. Hewitt,
[2010] DRS 8436 (21 Jun. 2010), Merill J. Fernando & Sons (MJFS), which has marketed tea under the
"Dilmah" name, and registered that mark in the United Kingdom and European Union, succeeded in
showing that the use of similar domain names by an individual in England would cause confusion to tea
consumers. The arbitrator directed that the domain name registrations be transferred to MJFS.
Mar. 9, 2010: the U.S. Department of Agriculture's Inspector-General released 14 recommendations for
strengthening the USDA's National Organic Program (NOP), particularly with respect to improving
enforcement of NOP regulations and standards, and improving oversight of certifying agents for
products labeled as "organic."
Mar. 4, 2010: the U.S. Food and Drug Administration (FDA) issued warning letters in February, 2010 to
seventeen food manufacturers, including makers of three tea products, reports the World Tea News.
The warning letters against the tea sellers were focused on unauthorized claims made concerning
antioxidants in tea and claims that tea drinking can treat or reduce the risk of cancer. No such health
claims for tea have been approved by the FDA. Although the issue of advertising the antioxidant effects
of polyphenols in tea remains an open one with the FDA.
Nov. 13, 2009: the California Court of Appeal in Kim Seng Co. v. Great American Insurance Co. of N.Y.,
No. B208699 (Cal. App. Nov. 13, 2009), denied insurance coverage for a food wholesaler to pay for the
defense of a trademark infringement suit. The court acknowledged that "advertising injury" coverage in
most commercial general liability policies covered trademark infringement liability. However, under the
"prior publication" exclusion, also present in many policies, an insurer has no duty to defend the insured
if the trademark supposedly infringed was first used before the insured obtained insurance. The Kim
Seng Co. court also concluded that the insurer was entitled to deny coverage under the policy even if
the insured was not found to have infringed the original trademark, since the test for determining
trademark infringement and the test for determining substantial similarity between the two marks for
insurance law purposes were different. This decision will be significant for those in the tea industry
selling products under names similar to their competitors, since the availability of insurance coverage will
determine whether the company has to pay for its own defense in a trademark infringement lawsuit.
Nov. 11, 2009: the Taiwanese Department of Health has begun investigating a shipment of tea to the
Taiwan National Palace Museum, said to contain tea leaves violating Taiwan's maximum residual levels
(MRL's) for pesticides present in food reports the Taiwan News.
Nov. 7, 2009: support for electronic tea auctions appears to have greater support among tea traders in
Kenya than in India, reports The Hindu. The Tea Board of India has been attempting to implement
e-auctions, but has faced resistance from traders, whereas the Kenyan Tea Board has been called
upon by its constituents to implement tea auctions in that country.
Oct. 15, 2009: the European Commission has indicated it will allow six months for the filing of public
comments on the Tea Board of India's application for the registration of Darjeeling Tea as a protected
geographical indication (GI) under EU law, reports Food Biz Daily. This is seen by some as an
encouraging sign that the Commission may be inclined to grant GI protection to Darjeeling.
Jun. 11, 2009: the Tea Board of India's introduction of cash and carry requirements for brokers at tea
auctions are being blamed for a short-term price fall at tea auctions, reports the Hindu Business Line. It
is believed that brokers who are now unable to obtain additional extensions of credit are essentially
unable or unwilling to pay higher prices. However, as tea prices rise globally, buyers are expected to
resume paying higher prices within a month's time.
Jun. 9, 2009: China's Ministry of Commerce reports that China's tea exports are expected to remain
steady throughout 2009, in spite of a drop in exports generally. China represents the world's largest tea
producer and its third largest tea exporter.
Apr. 30, 2009: the Tea Board of India will introduce cash and carry requirements for brokers
participating in tea auctions in northern India, beginning the first week of June, 2009, reports the
Economic Times. The Tea Board will go forward with the new regulations, after approving five banks at
which brokers will be required to open accounts. The new cash and carry regulations are said to be
needed after earlier defaults by auctioneers on payments to tea producers. The Tea Board intends to
enforce cash and carry requirements throughout India by October.
Aug. 12, 2008: the EU-China News reports that the European Commission has held firm on new
maximum residual levels (MRL's) for pesticides in imported food, in spite of the possibility that the new
MRL's may lead to the exclusion of some tea originating in China.
Jul. 6, 2008: Indian tea growers in Upper Assam and West Bengal have called upon the Indian Tea
Research Association (TRA) to take action to aid tea producers with the pest problems associated with
tea companies' adherence to strict maximum residual levels (MRL's) for pesticides in their finished
product, reports the Assam Tribune. Pest control is difficult where producers are not able to regularly
spray crops with pesticides, however, increased pesticide levels threaten to hamper tea's exportability
by violating the MRL's imposed by many countries' import laws.
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