Key U.S. Senators have announced a bi-partisan agreement on a long term TRIA extension. Senators Charles Schumer (D-NY), Dean Heller (R-NV), Jack Reed (D-RI), Mark Kirk (R-IL), Chris Murphy (D-CT) and Mike Johanns (R-NE) are the cosponsors of the legislation that is expected to be introduced in the next day or two.

“In a post-9-11 New York, terrorism risk insurance has proven to be an absolutely essential partnership between the government and the private sector that has turned rebuilding downtown Manhattan from a question to a certainty,” said Senator Schumer. “But there is still more to be done and this crucial bipartisan plan will reauthorize and extend the Terrorism Risk Insurance Act before it expires at year’s end. Redevelopment and economic growth should be encouraged in New York and other high-risk areas across the country, even in the face of unfathomable terrorist events, and I will work with my colleagues to get TRIA passed this year to preserve this essential tool.”

“Chicagoans believe it is our birthright to stand in the shadows of the tallest buildings in the world,” Senator Kirk said. “With its private-public partnership, TRIA will better protect the economy from terrorist harm while protecting taxpayers from financial risk.”

The Senate legislation would extend the program for seven years while raising the recoupment amount from $27.5 billion to $37.5 billion and increasing the industry’s copay amount to 20% from 15%. These changes would be phased in over the next five years.

While reaching a deal in the Senate is a key step in getting TRIA passed, and welcome news to advocates of a long-term extension, including RIMS, there is still a long way to go before an extension is passed. The Senate version must still go through the full Senate process, while, on the House side, there continues to be significant resistance from House Financial Services leadership, including Representatives Jeb Hensarling (R-TX) and Randy Neugebauer (R-TX), who remain skeptical of the program. Any bill from the House Financial Services Committee is expected to include more far reaching adjustments to the program.


Food Fraud

BALTIMORE—After his Food Safety Summit session on food fraud and economically motivated adulteration, I caught up with Doug Moyer, a pharmaceutical fraud expert and adjunct with Michigan State University’s Food Fraud Initiative. Here are a few of his insights into top challenges for the supply chain, and the biggest risks to be wary of as a consumer.

What are the riskiest foods for fraud?

The most fraudulent are the perennials: olive oil, honey, juices and species swapping in fish. Most people underestimate the amount of olive oil adulteration, but the amount of what is labeled “extra virgin olive oil” that Americans buy is more than Italy could ever produce. I buy certified California olive oil because I’ve sat down with that group and I know that their industry is really concerned about standards and have established a rigorous certification process. I am also really concerned about species swapping in the seafood industry. I love sushi, but I have a lot of concerns eating it, and they are not always about health. I don’t like feeling duped, and a lot of companies now have to contend with that reputation issue after so many studies have found that the odds can be incredibly low that you are eating the fish that you think you ordered—as little as 30% in some sushi restaurants in Los Angeles, for example.

Adulteration has been getting a lot more attention recently, from consumers and regulators. How old of a phenomenon is food fraud?

Food fraud actually dates back to the antiquities. In the industry, we refer to it as a 2,000-year-old problem. There are actually ancient jugs used for oil or wine that feature art that is misleading about the origin or quality of what came inside.

Why are we seeing more food fraud in the U.S. now?

In the United States, we have the real luxury of solid supply chains and active food safety protectors in the form of regulators and advocates. But, as the supply chain lengthens, strangers and anonymous players get introduced, and that’s where the system is most endangered.

What is the worst case of food fraud you’ve ever seen?

Melamine in Chinese infant formula is definitely one of the worst, and especially sinister. In the ‘80s, there was also a truly horrible case with olive oil in Spain. Many people hear about olive oil adulteration now and say, “What’s the harm, if it’s just another oil?” In that case, though, it was adulterated with industrial grade oil. Over 1,000 people died, and some are still infirm and in hospitals today.

What are the biggest culprits in pharmaceutical fraud?

Male enhancement, by far, is the top victim. Patients may be too embarrassed to see a doctor about their symptoms, so they log online and order from a rogue pharmacy—which may not even be a pharmacy at all. But if they were too embarrassed to get the medication to begin with, they will probably be too embarrassed to report the issues, too. Anti-malarials are also a big culprit abroad. In countries with a lot of demand for medications that fight malaria, many counterfeiters see the opportunity to fill that need before legitimate providers can. Poor populations gravitate toward these cheaper products, and access to doctors may be limited by a long, expensive trip—when you are already sick, or cannot afford the trip, it’s easier to go to a street vendor who rips off a sheet of what he says will help. It’s a particularly heinous crime because counterfeiters will trick customers with a little bit of aspirin in the pills that lower fevers and help with the body ache. That kind of deliberate attempt to keep people from getting better, to me, is more heinous than food fraud.


Food Production Safety

BALTIMORE—The Food and Drug Administration is increasingly harnessing data-driven, risk-based targeting to examine food processors and suppliers under the Food Safety Modernization Act. At this week’s Food Safety Summit, the FDA’s Roberta Wagner, director of compliance at the Center for Food Safety and Applied Nutrition, emphasized the risk-based, preventative public health focus of FSMA.

While it has long collected extensive data, the agency is now expanding and streamlining analysis from inspections to systematically identify chronic bad actors. FSMA regulations and reporting are revolutionizing many of the FDA’s challenges, but so is technology. According to Wagner, whole genome sequencing in particular has tremendous potential to change how authorities and professionals throughout the food chain look at pathogens. WGS offers rapid identification of the sources of foodborne pathogens that cause illness, and can help identify these pathogens as resident or transient. In other words, by sequencing pathogens (and sharing them in Genome Trakr, a coordinated state and federal database), scientists can track where contamination occurs during or after production.

At the same session, Jorge Hernandez, senior vice president of food safety and quality assurance at US Foods, also highlighted the importance of thorough risk evaluation and data-driven analysis for food companies. He encouraged a farm to fork approach to managing food safety and quality assurance risks, examining data as far back as possible so that companies just face the burden of maintaining safety, not combating or passing on contamination. Developing standards or suppliers that rest on a foundation of data and testing is the first step, but then companies must also be ready to check for compliance and implement change.

The primary components of the food chain are standard: producers, processors, suppliers/distributors and operators. Between each, however, comes the opportunity for monitoring and verification checks that should serve as control points, Hernandez said. These controls must be integrated into every link in the chain, and food companies must constantly evaluate what systems are necessary to ensure success downstream.


Employing reasoning adopted by a number of other courts, the U.S. District Court for the Southern District of Alabama recently dismissed the EEOC’s claim that an employer’s policy prohibiting employees from wearing dreadlocks violated Title VII – the case of EEOC v. Catastrophe Management Solutions. In its ruling, the Court confirmed that “employers’ grooming policies are outside the purview of Title VII,” and it further rejected the EEOC’s argument that the definition of race under Title VII should be read expansively to encompass more than immutable physical characteristics unique to a particular group.

Case Background

The case arose after Chastity Jones, an African-American applicant received an offer of employment from the defendant. At the time of the job offer, the employer had a grooming policy, which provided in part that “hairstyles should reflect a business/professional image” and prohibited “excessive hairstyles or unusual colors.” The employer interpreted the policy as prohibiting the wearing of dreadlocks, and thus conditioned its offer on Jones cutting off her dreadlocks. When Jones declined to do so, defendant withdrew the offer of employment. The EEOC filed suit, alleging that application of the policy to prohibit dreadlocks violated Title VII and that defendant intentionally discriminated on the basis of race. The employer moved to dismiss for failure to state a claim upon which relief can be granted.

EEOC’s Arguments

The EEOC argued that the employer had refused to hire Jones because she was black and that a policy that prohibits dreadlocks is racially discriminatory on its face because dreadlocks were determinant of racial identity. The EEOC also urged the Court to adopt an expansive definition of race under Title VII that would encompass “both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group.”

As an apparent fallback position, the EEOC argued that dismissal was inappropriate because it should be allowed to present expert testimony on three factual predicates:  1) “that Blacks are primary wearers of dreadlocks”; 2) that dreadlocks are “a reasonable and natural method of managing the physiological construct of Black hair”; and 3) that dreadlocks have a “socio-cultural racial significance” for blacks.

The Court’s Ruling

The Court rejected the EEOC’s arguments and dismissed the EEOC’s complaint. First, the Court identified a number of decisions addressing policies that restricted hairstyles and finding that such policies were non-discriminatory. Agreeing with these decisions, the Court held that a “hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.”  The Court also rejected the EEOC’s arguments regarding “socio-cultural racial significance,” noting that culture and race are different concepts and that “Title VII does not protect against discrimination based on traits, even a trait that has socio-cultural racial significance.”

Implications for Employers

This decision further reinforces an employer’s right to establish and enforce grooming policies and describes some parameters on the application of those policies. In addition, when facing EEOC charges which attempt to expand race discrimination under Title VII beyond immutable characteristics, the decision provides support for a defense that mutable characteristics, including traits that have purported “socio-cultural racial significance,” may not be protected as a matter of law.

This blog was previously published by Seyfarth Shaw LLP.