• Per the Order issued late Friday, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit reinstated the Biden administration’s vaccine-or-test mandate for large employers, lifting the Fifth Circuit’s earlier stay of OSHA’s emergency temporary standard (ETS).  OSHA, in turn, issued a “litigation update” early Saturday about related deadlines.

• The effect of both are that, pending further judicial review by the US Supreme Court, the ETS requirements are legally resurrected – with compliance deadlines that have now been moved to January and February 2022. Specifically:

• February 9 for vaxx or test

• January 10 for everything else (e.g., written policy, notices, survey data compilation, postings, PTO to get vaxxed, etc.)

• See https://www.osha.gov/coronavirus/ets2#litigation

• This, of course, is only true for the 22 states that are under federal OSHA jurisdiction.  For the 28 “state plan” states, such states originally had 30 days from issuance of the ETS to adopt the ETS or “as least as effective” measures.  Thus, although OSHA is silent on this so far, that related deadline may (at least practically) move back as well.

• For a list of OSHA “State Plan” states, see https://www.osha.gov/stateplans/

• As for other timing issues, there was an emergency stay request filed with the US Supreme Court last night.  More such requests will likely follow Monday -- and the Supreme Court will likely announce an expedited briefing schedule Monday or Tuesday.  After that we’ll have a better lay of the legal landscape.  

AUSTIN, Texas — Come Christmas Day on Saturday, you may notice fewer gifts under the tree, but it won't be because you were on Santa's naughty list. Rather, the current supply chain crisis continues to contribute to higher prices or fewer products being in stock, and experts don't know when we'll see an end to this.

In the months leading up to the holidays, many shoppers have experienced empty store shelves or severe price hikes.

FMI Legal/Regulatory Community,

We wanted to provide you with a few additional updates regarding OSHA’s Emergency Temporary Standard (ETS) as we head into the holidays.

Congratulations to TRA Board Member Christy Lara, Public Relations of Albertson's Companies Southern Division - who was named a Women of Influence in the grocery industry.  See page 34.  Brookshire Grocery and Kroger were also recognized! Check it out!

December 2, 2021 - The Senate passed a short-term government funding bill on Thursday night, sending it to President Joe Biden’s desk a day before a Friday deadline to prevent a shutdown.

The president is expected to sign the measure before the end of Friday and prevent a lapse in federal funding. The legislation will keep the government running through Feb. 18.

Dear WIC Vendors, 

In response to current issues impacting the supply of contract brand infant formulas, the Texas WIC program is temporarily authorizing alternative can sizes and formulations of contract products. 

The 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement that workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

NEW ORLEANS — A federal appeals court on Saturday temporarily halted the Biden administration’s vaccine requirement for businesses with 100 or more workers.

The 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement by the federal Occupational Safety and Health Administration that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.

Dear WIC Vendors,

The Texas WIC program is pleased to announce five new breakfast cereals for WIC participants when they become available on January 1, 2022 or later. Post Honey Bunches of Oats is converting their 14.5-ounce packages to 12-ounce packages, which makes them WIC eligible in Texas. The new UPCs listed below have been already added to the authorized product list (APL).

The House and Senate adjourned the third special session Sine Die early Tuesday morning.  Six out of ten of the Governor’s priority items were passed, including bills which set new districts for the Texas House, Texas Senate, the State Board of Education and Congress.  Legislation related to putting restrictions on COVID-19 vaccine mandates, bail reform, and increasing criminal penalties for illegal voting did not pass.  The Governor’s Executive Orders banning vaccine mandates for local governments and businesses are still in effect.  

The Legislature was able to pass legislation which allocates $16.3 billion in federal American Rescue Plan Act (ARPA). $7.2 billion will be used to refill the state’s unemployment compensation fund, $2 billion will go to the Department of State Health Services (DSHS) to be used for nurse staffing shortages due to the pandemic and for the purchasing and infusing of therapeutic drugs to treat COVID-19.  The legislature also allocated $500 million for broadband infrastructure and $3.3 billion to improve capital construction projects at our institutes of higher education.  $180 million will also be used for grants for the tourism, travel and hospitality industry that were harmed by the pandemic.  

Dear WIC Vendors,

The increase of cash value benefits (CVB) has been extended for WIC participants through December 31, 2021. This means participants can continue to purchase more fruits and vegetables at authorized Texas WIC vendors.

Texas WIC announced in a September 21 Vendor News Flash that the temporary increase would expire on September 30, 2021. However, in a late-breaking development last week, the federal government extended the temporary CVB as part of the Continuing Resolution that was signed on September 30.

Beginning January 2022, the Texas WIC Program will implement the new USDA-approved Peer Grouping Methodology. As discussed in previous Vendor Quarterly Webinars, the new Peer Grouping Methodology will consist of seven unique groups instead of the previous 18. Texas WIC will begin the preparation phase now to allow vendors time to adjust to the new changes over the next few months.

Texas WIC is required to implement Peer Grouping to control costs by grouping vendors based on price regions and sales volume bands.

George Kelemen, Texas Retailers Association President/CEO has accepted a job offer at a national association and will be leaving TRA at the end of September. He spent the last 6 years serving the retail industry in representation of Texas retail leaders during unprecedented times. The Texas Retailers Association is grateful for his service and wish him the best of luck in his future role in Washington, D.C.  

Effective October 1, 2021, the temporary increase of cash value benefits (CVB) ends and Texas WIC participants will receive their standard allotment of up to $11 to purchase fruits and vegetables.

The temporary increase was part of the American Rescue Plan Act of 2021. WIC participants received an increase of $35 monthly to purchase fruits and vegetables from June 1, 2021, through September 30, 2021, at authorized Texas WIC vendors.

All WIC policies relating to approved fruits and vegetables still apply and have not changed.

The City of Round Rock and the Texas Comptroller of Public Accounts reached an agreement Tuesday, Aug. 31, that prohibits the state from implementing a subsection of a new sales tax sourcing rule, pending a final hearing. 

The City filed a lawsuit in July seeking to overturn portions of the Comptroller’s Rule 3.334, which would source sales tax revenue from many online purchases to the buyer’s location instead of the seller’s place of business. This change to decades-old sourcing rules would have cost Round Rock millions of dollars a year in lost local sales tax revenue, most notably from online sales made by Round Rock-based Dell Technologies. 

The National Grocers Association applauded the Federal Motor Carrier Safety Administration’s extension of its Hours of Service emergency declaration, which was set to expire Aug. 31, but is now extended through Nov. 30.

FMSCA has provided hours-of-service flexibility for commercial drivers transporting certain categories of eligible items critical to the supply chain since the beginning of the COVID-19 pandemic. The agency announced the extension to the waiver based on input from independent grocers.