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The Blog of the The National Law Review

California Court Curbs Chipotle GMO Case

Chipotle dodges non-GM class action lawsuit…for now.

Sign is seen at a Chipotle Mexican Grill restaurant in San Francisco, California

A sign is seen at a Chipotle Mexican Grill restaurant in San Francisco, California July 21, 2015. REUTERS/Robert Galbraith

  • In 2015, Chipotle Mexican Grill launched a nationwide advertising campaign premised on the chain’s pledge to serve food made only with non-genetically modified (GM) ingredients.  However, the company continued to serve meat and dairy products from animals that consume GM crops, as well as beverages with GM ingredients (e.g., sodas with corn syrup from GM corn).  A class action lawsuit was filed against Chipotle in the “Food Court” (Northern District of California), based on allegations that the chain’s non-GM advertising campaign violates California consumer protection, false advertising, and unfair competition laws.

  • On February 5, the lawsuit was dismissed.  The judge found that the plaintiff had failed to specify that she purchased food in the “GM” categories (i.e., meat, dairy, or soft drinks) and thus failed to connect economic injury to the allegedly deceptive claims.  In the dismissal order, the judge also questioned the plaintiff’s allegations that a reasonable consumer would interpret Chipotle’s non-GM ingredient claims to extend to meat and dairy products derived from animals that never consumed any GM ingredients.

  • Although the plaintiff in this case may file an amended complaint in the future, the dismissal suggests that the court may be looking for additional support for the notion that reasonable consumers hold the same strict interpretation of non-GM claims.  Even Vermont’s GM labeling requirements provide exemptions for animal products derived from animals that consumed GM crops, which suggests that it might be an uphill battle to establish that such products should themselves be considered “GM.”

© 2016 Keller and Heckman LLP
healthcare background

Congress Awaits Health Provisions in President’s Budget

Health Bills Slated for House Floor Consideration; SAMHSA Releases Proposed Rule Focused on Confidentiality of Substance Use Disorder Patient Records

Legislative Activity

Congress Awaits Health Provisions in President’s Budget

On Tuesday, February 9, President Barack Obama will submit his FY 2017 Budget Request to Congress, which is expected to include several large-scale investments for the nation’s health. Last week, the White House released a “sneak preview” of the Budget, which includes: $755 million for cancer research as part of the “moonshot” to cure cancer; a legislative proposal to provide any state that takes up the Medicaid expansion option the same three years of full federal support that states that expanded in 2014 received; a commitment to changes in the excise tax on high-cost employer-sponsored health coverage, otherwise known as the “Cadillac Tax”; and $1 billion in mandatory funding over two years to address prescription drug abuse and heroin use.

On Wednesday, February 10, U.S. Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell will provide testimony on the Budget to the House Committee on Ways and Means. The next day, she will also address the Budget in her testimony to the Senate Committee on Finance.

Health Bills Slated for House Floor Consideration

House Majority Leader Kevin McCarthy (R-CA) has announced that several health care bills will be considered on the floor this week.

On Tuesday, the following pieces of health legislation are expected to be considered under suspension of the rules: H.R. 3016, the Veterans Employment, Education, and Healthcare Improvement Act, as amended, which clarifies the role of podiatrists in the Department of Veterans Affairs (VA); H.R. 3106, the Construction Reform Act of 2016, which makes certain changes in the administration of Department medical facility construction projects; H.R. 3262, To provide for the conveyance of land of the Illiana Health Care System of the Department of Veterans Affairs in Danville, Illinois; H.R. 4056, To authorize the Secretary of Veterans Affairs all right, title, and interest of the United States to the property known as “The Community Living Center” at Lake Baldwin Veterans Affairs Outpatient Clinic, Orlando, Florida, as amended; H.R. 4437, To extend the deadline for the submittal of the final report required by the Commission on Care; H.R. 3234, the VA Medical Center Recovery Act, which establishes within the VA an Office of Failing Medical Center Recovery; and H.R. 2915, the Female Veteran Suicide Prevention Act, which directs the Secretary of the VA to identify mental health care and suicide prevention programs that are effective in treating women veterans.

Later in the week, the House is expected to consider H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015, which seeks to improve and clarify disclosure requirements for restaurants and other retail food establishments.

Senate HELP Committee to Mark Up Health Legislation

On Tuesday, February 9, the Senate Committee on Health, Education, Labor, and Pensions (HELP) will hold a markup to consider several health care bills. In January, Committee Chairman Lamar Alexander (R-TN) announced the Committee’s schedule for the “step by step” consideration of biomedical innovation bills. This process, aimed at legislation that is somewhat similar to language in the House-passed 21st Century Cures Act (H.R. 6), begins with this markup.

Legislation to be considered on Tuesday includes: S. 2030, the Advancing Targeted Therapies for Rare Diseases Act of 2015, which allows the sponsor of an application for the approval of a targeted drug to utilize data and information from the sponsor’s previously approved targeted drugs; S. 1622, the FDA Device Accountability Act of 2015, which requires the Food and Drug Administration (FDA) to ensure training on least burdensome requirements for employees who review premarket submissions of medical devices; S. 2014, the Next Generation Researchers Act, which seeks to demonstrate a commitment to our nation’s scientists by increasing opportunities for the development of future researchers; S. 800, the Enhancing the Stature and Visibility of Medical Rehabilitation Research at NIH Act, which seeks to improve, coordinate, and enhance National Institutes of Health (NIH) rehabilitation research; S. 849, the Advancing Research for Neurological Diseases Act of 2015, which provides for systematic data collection and analysis and epidemiological research regarding neurological diseases; S. ___, the Preventing Superbugs and Protecting Patients Act; and S. ___, the Improving Health Information Technology Act.

This Week’s Hearings:

  • Tuesday, February 9: The Senate Committee on Health, Education, Labor, and Pensions (HELP) will hold a markup of health care bills, as described above.

  • Wednesday, February 10: The House Committee on Energy and Commerce Subcommittee on Health will hold a hearing titled “Examining Medicaid and CHIP’s Federal Medical Assistance Percentage.”

  • Wednesday, February 10: The House Committee on Veterans’ Affairs will hold a hearing titled “U.S. Department of Veterans Affairs Budget Request for Fiscal Year 2017.”

  • Wednesday, February 10: The House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations and Subcommittee on the Western Hemisphere will hold a joint hearing titled “The Global Zika Epidemic: Emerging in the Americas.”

  • Wednesday, February 10: The House Committee on Ways and Means will hold a hearing titled “Department of Health and Human Services’ (HHS) Fiscal Year 2017 Budget Request.”

  • Wednesday, February 10: The House Committee on Rules will meet on H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015.

  • Wednesday, February 10: The Senate Committee on the Judiciary will hold a hearing titled “Breaking the Cycle: Mental Health and the Justice System.”

  • Wednesday, February 10: The Senate Special Committee on Aging will hold a hearing which “will unveil and examine a new, troubling scam by global drug traffickers perpetrated against our nation’s seniors.”

  • Thursday, February 11: The House Committee on Veterans’ Affairs Subcommittee on Health will hold a hearing titled “Choice Consolidation: Improving VA Community Care Billing and Reimbursement.”

  • Thursday, February 11: The House Committee on Homeland Security Subcommittee on Emergency Preparedness, Response, and Communications will hold a hearing titled “Improving the Department of Homeland Security’s Biological Detection and Surveillance Programs.”

  • Thursday, February 11: The Senate Committee on Finance will hold a hearing titled “The President’s Fiscal Year 2017 Budget.”

  • Thursday, February 11: The Senate Committee on the Judiciary will hold a markup, which will include consideration of: S. 483, the Ensuring Patient Access and Effective Drug Enforcement Act of 2015, which seeks to improve enforcement efforts for prescription drug diversion and abuse; and S. 524, the Comprehensive Addiction and Recovery Act of 2015, which authorizes the Attorney General to award grants to address prescription opioid abuse and heroin use.

  • Friday, February 12: The House Committee on Energy and Commerce Subcommittee on Oversight and Investigations will hold a hearing titled “Outbreaks, Attacks, and Accidents: Combatting Biological Threats.”

Regulatory Activity

SAMHSA Releases Proposed Rule Focused on Confidentiality of Substance Use Disorder Patient Records

On Friday, February 5, the Substance Abuse and Mental Health Services Administration (SAMHSA) released a proposed rule titled “Confidentiality of Substance Use Disorder Patient Records.” The proposed rule seeks to amend the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, which were last substantively updated in 1987. According to HHS, the proposed rule will “facilitate health information exchange to support delivery system reform efforts” and ensure privacy for patients seeking substance use disorder treatment.

The proposed rule will be published in the Federal Register on February 9, and comments are due April 11.

Groundhog Day: Declaring Impending Death of Massachusetts Noncompetes

or the last three years, we have reported on legislative efforts to ban noncompetes in Massachusetts. You can see a sample of those reports here and here. Thus far none of those efforts have been successful. Here again in 2016, legislative efforts to ban noncompetes promise to continue in Massachusetts, with one commentator declaring, “This is the year.”

Our job as business lawyers is to advise clients on how widely varying state laws affect their ability to use noncompetes, then they can make their business decisions from there. Different businesses take very different views on noncompetes, as those seeking to ban them in Massachusetts have learned. Therefore, our job does not drive any particular policy position on noncompetes. However, I have observed that opponents seem quick to share stories about stories about seeming extreme noncompetes (certainly they exist but good luck enforcing them) and/or declare noncompetes’ ongoing decline (they’re not) and/or say they have a negative impact on the economy (I’m still waiting for proof of what the impact may be, pro or con) – none of those things always supported by facts and data.

The above-linked commentator has “heard” that noncompetes have prevented 19 year olds from switching employment at summer camps. I have not seen that, directly or indirectly, and it seems that it would be difficult even in a pro-enforcement state like Ohio to enforce such a noncompete. But it certainly makes a nice story, even if it may jeopardize the support of the summer camp trade association for the legislation.

The commentator also talks about the “stifling effect” noncompetes have on the Massachusetts economy, though I do not see any data supporting that conclusion. I am no economist either, but my first result in a Google search lists Massachusetts as the 6th best economy among states in the last quarter of 2015. Just think how highly the state would be ranked if its economy were not stifled.

Maybe this is the year for Massachusetts; we will see. In any event, we will continue to watch developments by state, some of which will be pro-enforcement and some of which will not, and keep you posted on how it affects your businesses.

© 2016 BARNES & THORNBURG LLP

January 2016 Tax Credits & Incentives Update

tax man liftingwiderHMB Tip of the Month:  As provided in two of the cases highlighted in this monthly update, a taxpayer that meets all of the criteria of a statutory tax credit (in which funding is available) may be successful in court when it faces a challenge to its eligibility to the credit from the jurisdiction that administers the credit.  If a taxpayer faces such a challenge and the denial of the credit is material to the taxpayer, a taxpayer should explore its options with a trusted consultant.

Recent Announcements of Credit/Incentives Applications and Packages

Massachusetts– Global business giant General Electric Co. announced January 13 that it is relocating its corporate headquarters from Connecticut to Massachusetts as part of a deal that includes a $145 million state and local tax incentive package.  GE will begin relocating its Fairfield, Connecticut, corporate headquarters to Boston this summer and expects to complete the move by 2018.

Connecticut’s Governor Malloy offered an incentive package to GE in August 2015, but it apparently was not enough to persuade the company to stay.  The move will bring 800 jobs to Boston, specifically to the Seaport District.  Massachusetts offered up to $120 million through state grants and other programs, and the city offered up to $25 million in property tax relief.

Additional incentives include $1 million in grants for workforce training; up to $5 million for an innovation center to forge connections between GE, research institutions, and the higher education community; commitment to existing local transportation improvements in the Seaport District; appointment of a joint relocation team to ease the transition for employees moving to Boston; and assistance for eligible employees looking to buy homes in Boston.

Legislative, Regulative and Gubernatorial Update

Alaska- Alaska Governor Walker released legislation (HB 246 and HB 247) on January 19 detailing his proposal to end many of the state’s oil tax credits and establish a low-interest loan program to support exploration and production.  Jerry Burnett, deputy commissioner of the Alaska Department of Revenue, said current oil prices and production levels have forced a reconsideration of how the state encourages oil industry investment. “We can end up paying 55 to 65 percent of the project during development and 85 percent of exploration [costs],” he said. “It’s a fairly generous program. It seemed like a good idea when oil was $100 a barrel.”  With oil prices currently at around $27 per barrel, the Walker administration wants to pivot away from tax credits — many of which the state repurchases from companies — and instead focus on creating a loan program to back companies developing petroleum resources.

Illinois–   Several bills were introduced in the Illinois House on January 27.

HB 4545 creates the Manufacturing Job Destination Tax Credit Act and amends the Illinois Income Tax Act. It provides for a credit of 25% of the Illinois labor expenditures made by a manufacturing company in order to foster job creation and retention in Illinois. The Department of Revenue is authorized to award a tax credit to taxpayer-employers who apply for the credit and meet the certain Illinois labor expenditure requirements. The bill sets minimum requirements and procedures for certifying a taxpayer as an “accredited manufacturer” and for awarding the credit.

HB 4544 would amend the Illinois Income Tax Act to authorize a credit to taxpayers for 10% of stipends or salaries paid to qualified college interns. The credit is limited to stipends and salaries paid to 5 interns each year, and limits total credits to $3,000 for all years combined. The bill provides that the credit may not reduce the taxpayer’s liability to less than zero and may not be carried forward or back.

Finally, HB 4546 would amend the Service Occupation Tax Act and the Retailers’ Occupation Tax Act to provide that, by March 1, 2017, and by March 1 of each year thereafter, each business located in an enterprise zone may apply with the Department of Commerce and Economic Opportunity for a rebate in an amount not to exceed 1% of the amount of tax paid by the business under the Acts during the previous calendar year for the purchase of tangible personal property from a retailer or serviceman located in Illinois. The legislation provides that the Department of Commerce and Economic Opportunity shall pay the rebates from moneys appropriated for that purpose.

Indiana– SB 125 introduced on January 5 would resurrect a program that has struggled to maintain political support since it was proposed in 2005. The bill would allow a refundable credit for qualified in-state production expenditures of at least $50,000. The program would be open to producers of films, television programs, audio recordings and music videos, advertisements, and other media for marketing or commercial use. It excludes obscene content and television coverage of news and athletic events.

For expenditures of less than $6 million, the credit would be equal to 35 percent of those expenses, or 40 percent of expenditures in an economically distressed location. For qualified production expenditures of at least $6 million, the Indiana Economic Development Corporation would be tasked with setting the credit level, which could not exceed 15 percent. Those credits would also need to be preapproved by the agency.

The bill takes a broad approach to defining expenditures but excludes wages, salaries, and benefits paid to directors, producers, screenwriters, and actors who do not live in Indiana. The program would be capped at $2.5 million annually and sunset at the end of 2019. It also includes clawback provisions preventing taxpayers from claiming unused credits and requiring them to repay any credits that have already been claimed if they fail to satisfy the bill’s conditions.

Maryland- On January 27, Maryland Governor Hogan proposed a series of education-focused legislative proposals including an education tax credit. The proposed tax credit would be provided to private citizens, businesses, and nonprofits that make donations to public and non-public schools to support basic education needs such as books, supplies, technology, academic tutoring, tuition assistance, and special needs services. The credit would also target the promotion of pre-K programs and enrollment. The credit would be awarded through the Department of Commerce with the total level of credits phased in over three years to $15 million in fiscal year 2018.

Massachusetts– On January 27, Massachusetts Governor introduced legislation (H 3978) which would restore the film tax credit to the structure when the credit was introduced in 2005 and use the revenue generated to increase the annual cap on the low-income housing tax credit by $5 million, and to phase-in over four years the use of single-factor apportionment for all corporate taxpayers who do business in more than one state.

New Jersey– Governor Christie conditionally vetoed on January 11 two Senate bills that would have renewed the recently expired film tax credit program.  The vetoed Senate bills, S 779 and S 1952, would have renewed the recently expired film tax credit program, funding the program at $60 million annually for seven years.  The film tax credit program that expired in 2015 allowed production companies to claim up to a 20 percent tax credit on expenses.

In his veto message, Christie called the bills expensive and said they offer “a dubious return for the State in the form of jobs and economic impact, and that I believe we should consider, if at all, during the upcoming budget negotiation process.”

Senate Democrats issued a joint statement claiming that Christie supports tax credits for big companies “but when it comes to an industry that helps small local businesses he looks the other way.” The senators said that by not reauthorizing the film tax credit program, Christie is starving the film industry in New Jersey and making the state uncompetitive with neighboring states.

New Jersey– L. 2016, S2880, effective 01/19/2016, provides up to $25 million in Economic Redevelopment and Growth Grant (ERG) tax credits to Rutgers, the State University of New Jersey, for eligible projects including buildings and structures, open space with improvements, and transportation facilities. The law also raises the ERG program cap from $600 million to $625 million.

New Jersey– L. 2016, S3182, effective 01/19/2016, permits a 2-year extension for a developer of a “qualified residential project” or “qualified business facility” to submit documentation to the New Jersey Economic Development Authority supporting its credit amount under the Urban Transit Hub Tax Credit program. The law also provides an additional two years for developers to submit information on the credit amount certified for any tax period, the failure of which subjects the amount to forfeiture. In addition, the law permits a one-year extension for a developer of a qualified residential project to submit documentation of having received a temporary certificate of occupancy to receive tax credits under the Economic Redevelopment and Growth Grant program. The deadline for a business to submit documentation that it met the capital investment and employment requirements under the Grow New Jersey Assistance Program (for a credit applications made before July 1, 2014), is extended to July 28, 2018.

New Jersey– L. 2016, S3232, effective 01/11/2016, allows certain businesses that have previously been approved for a grant under the Business Employment Incentive Program (BEIP) to direct the New Jersey Economic Development Authority to convert the grant to a tax credit. The law provides an alternative means to satisfy the backlog of unpaid grant obligations, approved before the phase out of the BEIP, due to fiscal constraints. Requests to convert grants to tax credits must be made within 180 days of the law’s enactment. The law also establishes a priority for issuing the tax credits favoring older outstanding grant obligations.

Virginia– The Virginia Department of Historic Resources has amended regulations 17 VAC §§ 10‐30‐10 through 10‐30‐160, effective February 10, 2016. The numerous amendments relating to the historic rehabilitation tax credit include the requirement to provide certain information on the “Evaluation of Significance” on the Historic Preservation Certification Application. The requirement for an independent audit reporting and review procedures is increased to $500,000 or greater, and for projects with rehabilitation expenses of less than $500,000 an agreed upon procedures engagement report by an independent accountant must be used. The fee structure for processing rehabilitation certification requests has been revised, and the fees charged by the Department for reviewing rehabilitation certification requests have also been increased. The entitlement to the credit has been changed from January 1, 1997 to January 1, 2003; consequently, the section on projects begun before 1997 has been updated to reflect the new 2003 date. The amendments also added or modified certain definitions.

Washington– With the backing of unions, HB 2638 was introduced on January 18 which would require Boeing to keep its in-state employment levels near a 2013 baseline for the company to claim the full value of a reduced business and occupation (B&O) tax rate and the B&O tax credit for aerospace product expenditures.

The legislation, similar to the failed HB 2147 from 2015, is a reaction to what labor and other critics say is the loss of thousands of Boeing jobs in Washington since lawmakers in 2013 extended the aerospace industry tax incentives from 2024 to 2040.

HB 2147 was reintroduced in this session, but HB 2638 is the proposal proponents intend to pursue this year. HB 2638 would set a baseline of 83,295 in-state employees, roughly the same as the company’s 2013 Washington workforce. After Boeing’s workforce falls 4,000 below that level — which has already happened — the value of the tax incentives would be cut in half. If Boeing’s workforce falls to 5,000 fewer than the baseline, the company would pay normal B&O tax rates and lose the ability to claim the tax credit.  HB 2638 is less incremental than HB 2147, which would have increased the B&O tax rate closer to normal by 2.5 percent for every 250 employees below the baseline.

Case Law

California– In a case in which Ryan U.S. Tax Services, LLC (Ryan), a tax advisory and site selection firm, challenged the validity of a regulation concerning contingent fee practitioners advising taxpayers who submit applications for the California Competes Tax Credit, the California Superior Court, Sacramento County, has said that it will grant Ryan’s petition and request for declaratory relief. Cal. Rev. & Tax. Cd. § 17059.2 and Cal. Rev. & Tax. Cd. § 23689 (sometimes hereinafter referred to as the statutes) each set forth 11 factors on which the Governor’s Office of Business and Economic Development (GO-Biz) is to allocate the credit.  GO-Biz also adopted regulations to implement the credit program, including the application process for tax credit allocation. Cal. Code Regs. 10 § 8030(b)(10) requires applicants for tax credits to provide certain information on the tax form, including the name of any consultant providing services related to the credit application, the consultant’s fee structure and cost of services, and whether payment to the consultant is influenced by whether a credit is awarded.

Moreover, Cal. Code Regs. 10 § 8030(g)(2)(H) provides that GO-Biz will evaluate any other information requested in the application, including but not limited to the reasonableness of the fee arrangement between the applicant and any consultant and it further provides that any contingent fee arrangement must result in a fee that is no more than a reasonable hourly rate for services. Ryan contended, among other things, that the regulation is inconsistent with the statutes because it expands the qualifications for tax credit applicants, that is, it adds to the exclusive list of 11 qualifying factors in the statutes a new factor, the amount of consultant fees paid by tax credit applicants. GO-Biz argued that the legislature delegated to it broad authority to fill in the details of the tax credit program, and while the statutes do not explicitly list consultant fees as a consideration, they fall within the scope of the factor that authorizes GO-Biz to consider the extent to which the anticipated tax benefit to the state exceeds the projected benefit to the taxpayer from the tax credit (Cal. Rev. & Tax. Cd. § 17059.2(a)(2)(K); Cal. Rev. & Tax. Cd. § 23689(a)(2)(K)) by ensuring that tax credits are used for job creation and are not unnecessarily diverted to unreasonable consultant fees.

The court agreed with Ryan that the regulation was invalid. Limiting consultant fees does not preserve tax credits or ensure that tax credits will be used to create new, good-paying jobs. The statutes provide the 11 factors to be used in allocating credits. The cost of a consultant’s services is a matter between the taxpayer and the consultant. Even if the statutes are construed as allowing GO-Biz to consider whether consultant fee arrangements are reasonable, the court found that the regulation’s de facto ban on contingent fee arrangements to be arbitrary and not reasonably necessary to carry out the purposes of the statutes because it effectively disqualifies businesses that have contingent fee arrangements with their consultants from receiving the credit. The court will enter judgment in the case after a formal judgment is prepared, approved, and signed. (Ryan U.S. Tax Services, LLC v. State of California, Cal. Super. Ct. (Sacramento County), Dkt. No. 34-2014-00167988, 01/07/2016.)

Kansas– The Kansas Department of Revenue ruled that a third party cannot furnish electric service or enter into a solar power purchase agreement (PPA) with a Kansas homeowner, as the Retail Electric Suppliers Act (RESA) prohibits the furnishing of electric service by any person or company other than the certified public utility for a particular territory, and so it was moot whether the charges a non-utility billed to a Kansas customer were taxable. The Department declined to speculate about the potential answer should the Kansas Legislature sometime authorize non-utilities to enter into PPAs, but the company was encouraged to resubmit the question if it is not directly answered by the legislation should such PPA agreements be legalized. (Kansas Opinion Letter No. O-2016-001, , 01/25/2016 .)

Kentucky– The U.S. District Court for the Eastern District of Kentucky has ruled that a Noah’s Ark-themed tourist attraction cannot be denied sales tax incentives by Kentucky on grounds that the project advanced religion in violation of First Amendment protection from state establishment of religion. The Court found that the religious-based theme park met the neutral criteria for the tax incentives and, therefore, the state could not deny the incentives for Establishment Clause reasons. In addition, in denying the tax incentives, the state violated the Free Exercise Clause of the First Amendment. Consequently, the Court enjoined the state of Kentucky and its Tourism, Arts, and Heritage Cabinet from applying the Tourism Development Act in a way that excludes Ark Encounter from the program based on its religious purpose and message or based on its desire to utilize any exception in Title VII of the Civil Rights Act for which it qualifies concerning the hiring of its personnel.Ark Encounter, LLC, et al. v. Parkinson, et al., U.S. Dist. Ct. (E.D. KY), Dkt. No. 15-13-GFVT, 01/25/2016.

© Horwood Marcus & Berk Chartered 2016. All Rights Reserved.

Cuba: Further Easing of the U.S. Sanctions

Following up on the historic changes in 2014 and 2015 to the five-decade U.S. trade embargo on Cuba, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS) have announced new amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), effective January 27, 2016.

What U.S. Companies Need to Know About the Easing of Restrictions

  1. Payment Terms for Authorized Exports to Cuba No Longer Restricted
    OFAC restrictions have been lifted on payment and financing terms for authorized exports and reexports to Cuba, except for agricultural commodities and items. U.S. banks will be authorized to provide financing by third-country or U.S. financial institutions (e.g., letters of credit, payment of cash in advance, sales on an open account). Payment for agricultural exports will still be limited to cash in advance or financing by third-country banks only. “Authorized exports and reexports” include those authorized under a BIS license exception (e.g., products and materials exported to private sector entrepreneurs under License Exception “SCP” – Support for the Cuban People), as well as export transactions permitted by BIS under a specific license.

  2. Most Cuban Embargo Restrictions Remain in Place
    Although the amendments to the CACR and EAR signify further relaxing of Cuba sanctions, the U.S. embargo on Cuba remains largely in place; most transactions between the U.S. and Cuba continue to be prohibited.

    In addition, a general policy of denial will still apply to exports and reexports of items for use by state-owned enterprises, agencies, or other organizations of the Cuban government that primarily generate revenue for the state. Additionally, applications to export or reexport items destined to the Cuban military, police, intelligence and security services remain subject to a general policy of denial.

  3. More Favorable Licensing Policies for Certain Exports and Reexports
    The following transactions still require a license application, but the chances of approval for such licenses have improved:

Exports to Cuban Government Agencies Meeting the Needs of the People: BIS is now considering, on a “case-by-case” basis, license applications for exports and reexports to Cuban state-owned enterprises and government agencies that provide services and goods to meet the needs of the Cuban people. Previously, such license applications were subject to a policy of denial. The new case-by-case policy applies to items for construction of facilities for public water treatment, electricity or other energy; sports and recreation; agricultural production; food processing; disaster preparedness, relief and response; public health and sanitation; residential construction and renovation; public transportation; wholesale and retail distribution for domestic consumption by the Cuban people; and artistic endeavors.

  • New Policy of Approval for Certain Exports and Reexports: License applications for the following exports and reexports are now subject to a “general policy of approval,” an upgrade from “case-by-case” consideration:

  • Environmental protection items: U.S. and international air quality, water, or coastline

  • Telecommunications items: To improve communications to, from, and among the Cuban people.

  • Civil aviation and commercial aircraft safety items: Those necessary to ensure the safety of civil aviation and safe operation of commercial aircraft engaged in international air transportation, including the export or reexport of civil aircraft leased to state-owned enterprises.

  • Agricultural items: Such as insecticides, pesticides, and herbicides, as well as other agricultural commodities (e.g., tractors and other farm equipment) not eligible for License Exception AGR

  • Commodities and software: To human rights organizations or to individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba; also to U.S. news bureaus in Cuba whose primary purpose is the gathering and dissemination of news to the general public.

4. Travel Authorized for Additional Purposes Including Film Making 
U.S. persons are still prohibited from traveling to Cuba for tourism, but OFAC now permits travel to Cuba for additional purposes as highlighted below.

  • Travel related to information and informational materials now includes travel for the filming of movies and TV programs, music recordings, and artwork creation.

  • Organization of professional meetings, public performances, clinics, workshops, and athletic and other competitions and exhibitions in Cuba, in addition to the previously authorized attendance at such events.

5. Air Carrier Services Expanded to Permit Code-Sharing and Leasing
U.S. companies can now enter into blocked space, code-sharing, and leasing arrangements to facilitate the provision of carrier services by air, in connection with travel or transportation between the U.S. and Cuba, including such arrangements with a Cuban national.

© 2016 BARNES & THORNBURG LLP

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