Food Law Blog (US)

Federal Meat Inspection Act Preempts California Law on Non-Ambulatory Animals

2012-02-06T07:39:00.000-05:00

In a unanimous opinion, the U.S. Supreme Court held that theFederal Meat Inspection Act (FMIA) expressly preempts a California law thatdictated slaughterhouses must reject non-ambulatory pigs.

The California law,section 599f of the California state penal code, prohibited slaughterhousepurchase or sale any non-ambulatory livestock and prohibited the processing ofmeat from non-ambulatory livestock for human food. This law was adopted in 2008after the Humane Society released an undercover video showing workers at a Westland/HallmarkMeat Co. slaughterhouse in California dragging, kicking, and electro- shockingsick and disabled cows in an effort to move them. The video led the federal governmentto institute the largest beef recall in U. S. history in order to preventconsumption of meat from diseased animals.

First enacted in 1906, the FMIA was amended in 1978 torequire all slaughterhouses comply with the standards for humane handling andslaughter of animals set out in the Humane Methods of Slaughter Act of 1958 (72Stat. 862, 7 U.S.C. §1901 et seq.). The FMIA express preempts state laws “withrespect to premises, facilities and operations of any establishment at whichinspection is provided under . . . this [FMIA] which are in addition to, ordifferent than those made under [FMIA]” (21 U. S. C. § 678).

“The FMIA’spreemption clause sweeps widely—and in so doing, blocks the applications of§599f challenged here. The clause prevents a State from imposing any additionalor different—even if non-conflicting—requirements that fall within the scope ofthe Act and concern a slaughterhouse’s facilities or operations. And at everyturn §599f imposes additional or different requirements on swineslaughterhouses: It compels them to deal with nonambulatory pigs on theirpremises in ways that the federal Act and regulations do not. In essence,California’s statute substitutes a new regulatory scheme for the one the FSISuses. Where under federal law a slaughterhouse may take one course of action inhandling a nonambulatory pig, under state law the slaughterhouse must takeanother.” 565 U. S. ____ (2012).

Get Poisoned for Free

2012-01-12T10:06:00.001-05:00

Bill Marler, guest instructor for the Institute for Food Laws and Regulations, is offering to give a book to each new person who subscribesto his blog (up to 200 hardcover books). Just subscribe here andemail Mr. Marler your address at bmarler@marlerclark.com.

The book, Jeff Benedict's Poisoned,is a great read. So is Bill Marler's blog. Win Win.

FDA Withdraws Proposals to Ban Antibiotics in Animal Feed

2011-12-26T14:57:00.003-05:00

Maryn McKenna wrote in Wired, “News:FDA Won’t Act Against Ag Antibiotic Use,” about the FDA’swithdrawal of two 1977 proposals to withdrawcertain approved uses of penicillin and tetracyclines in animal feeds because ofthe concerns over antibiotic resistant bacteria:

With no notice other than a holiday-eve posting in the Federal Register, the US Foodand Drug Administration has reneged on its long-stated intention to compellarge-scale agriculture to curb over-use of agricultural antibiotics, which ithad planned to do by reversing its approval for putting penicillin andtetracyclines in feed….

FDA represents this move as a change in tactics becausethe agency lacks the resources to move forward with a regulatory ban. Instead,the FDA is hoping for voluntary reductions in risky uses of antibiotics inanimal feed. In the Federal Registerposting, the agency states, “FDA is optimistic that its proposed strategy toachieve the judicious use of all medically important antimicrobials, as set outin draft [guidance document], will be successful . . .” Perhaps after 34 years of failure, a new FDAstrategy is needed.

Are Genetically Engineered Foods "Natural"?

2011-12-16T22:05:00.000-05:00

A lawsuit claiming misleading advertising, unfair competition, and breach of express warranty has been filed in California against Frito-Lay chips advertised as “All Natural ingredients” while allegedly “made from genetically modified plants and organisms.”

Gengo v. Frito-Lay N. Am., Inc., No. 11-10322 (U.S. Dist. Ct., C.D. Cal., filed December 14, 2011).

Vulnerabilities in FDA’S Oversight of State Food Facility Inspections

2011-12-15T12:16:00.000-05:00

Vulnerabilities in FDA’S Oversight of State Food Facility Inspections, an Office of Inspector General (OIG) report released December 2011, identifies significant weaknesses in FDA's oversight of state food inspections on which FDA increasingly relies. In eight States, FDA failed to ensure that the required number of inspections was completed, and FDA paid for many inspections that were incomplete.

In addition, FDA did not ensure that all inspections were properly classified or that all inspection violations were remedied. FDA failed to complete the required number of audits in one-third of the States with inspection contracts (14 of 41 states). Additionally, the audits in 10 States revealed systemic problems that needed to be corrected; however, FDA initiated corrective action in only 4 of these 10 States.

GAO Report, FDA: Better Coordination Could Enhance Efforts to Address Economic Adulteration and Protect the Public Health

2011-11-28T10:09:00.001-05:00

This Government Accountability Office (GAO) report examines FDA’s approaches to detecting and preventing economic adulteration of food and medical products. The report notes the challenges FDA faces in detecting and preventing such adulteration, but concludes, "FDA may not be making the best use of its scarce resources.” The full report is available here.

WTO rules against U.S. country-of-origin labels

2011-11-23T22:16:00.001-05:00

According to the Associated Press, the World Trade Organization (WTO) has ruled that U.S. "country-of-origin" labels on cattle and hog exports from Canada and Mexico violate international rules. In late 2009, the WTO opened an investigation into U.S. labeling rules at the request of Canada and Mexico. The country-of-origin labeling regulation took effect in 2008. Canada and Mexico each claimed their livestock industries were hurt by a sharp drop in U.S. cattle and hog imports because the labeling raised the costs and discouraged imports of their produce.

Under country-of-origin labeling, foreign cattle and pigs had to be segregated in U.S. feedlots and packing plants, prompting some firms to deal only with American livestock. Foreign animals also were required to have more documentation about where they came from and, in the case of cattle, had to have tags that indicated they were free of mad-cow disease.

More information is available here.

European Union's Food Information to Consumers Regulation

2011-11-23T22:06:00.001-05:00

Since the vote of the European Parliament in July, we have been waiting for the EU Food Information Regulation to be issued in final form. It was published in the Official Journal (L) of the European Union on November 22. The citation is Reg. (EU) 1169/2011. OJ(L) 304/18, 22 Nov 2011.

This Regulation revises 20 years of EP and EC Directives and Regulations. Among the changes, the regulation requires nutrition label declaration of the "Big 7"—energy, fat, saturated fat, carbohydrates, sugars, protein, and salt by Dec. 13, 2016. There are also new rules on allergen labeling and legibility. The regulation introduces a minimum font size of 1.2 mm for all mandatory label information, and 0.9 mm for products whose packaging has a largest surface of less than 80 square cm.

The full text of the Regulation (66 pages), European Union's Food Information to Consumers Regulation, is available at: www.food-label-compliance.com. Hat tip to Charles Woodhouse.

Cooks Lie About Thermometers

2011-11-11T12:12:00.001-05:00

Nancy Shute of NPR's Food Blog wrote in Why We Lie About Using Food Thermometers, "Just 20 percent of Americans say they regularly use a food thermometer to make sure they have cooked food safely, according to a new survey . . . And food safety experts say that a fair number of those people were probably fibbing."

With the holidays coming, this is a good time to buy some good digital thermometers and give them to kith and kin. Some will give you an odd smile, throw it in the back of a drawer, never to see daylight again. Some will be prodded to cook safety, and the life you save could be your own.

I like the CDN ProAccurate models, in particular the CDN DTQ450X ProAccurate Quick-Read Thermometer. Whatever model you get, look for a fast read, accurate digital thermometer. Take multiple readings. It can be hard to find the coldest point. And make sure the coldest part reaches the temperature recommended by the USDA.

FDA Law Blog: New Twist In “Natural” Lawsuit

2011-09-24T10:32:00.002-04:00

FDA Law Blog: New Twist In “Natural” Lawsuit by Riëtte van Laack reports on another class action suit regarding “natural” food labeling claims. The defendants include Kashi Co. and its general manager, as well as Kashi’s parent Kellogg Co. and its President. "Plaintiffs claim defendants falsely and misleadingly labeled virtually all Kashi products as 'all natural' or containing nothing artificial even though the products allegedly do not conform to applicable federal regulations and policies on 'natural.'”

Nutrition Labeling of Single-Ingredient Meats Coming January 1

2011-09-15T21:07:00.003-04:00

The USDA Food Safety Inspection Service (FSIS) published a final rule that will required nutritional labeling on major cuts of single-ingredient raw meat and poultry products and on all ground or chopped meat and poultry products (unless an exemption applies). The rule also establishes criteria for making a lean percentage statement. The new rule takes effect on January 1, 2012. FSIS has published an informational Web site that includes the final rule, questions and answers, and a PowerPoint presentation.

Public Health Law Research Annual Meeting

2011-09-15T21:07:00.000-04:00

Public Health Law Research is holding the 2012 Public Health Law Research Annual Meeting, "Public Health Law: Targets of Opportunity," January 18-20, 2012, in New Orleans. The conference will highlight research that provides evidence about how law can be used to improve population health; abstracts are being accepted until November 15, 2011.

USDA Declaring Six Serotypes of E. coli as Adulterants

2011-09-14T21:37:00.000-04:00

The U.S. Department of Agriculture (USDA) today is declaring six other serogroups of Shiga toxin-producing E. coli (STEC) (O26, O45, O103, O111, O121, and O145). The Agency has determined that they, as well as O157:H7, are adulterants of non-intact raw beef products and product components within the meaning of the Federal Meat Inspection Act (FMIA).

Beginning in March 2012, any raw ground beef, its components, and tenderized steaks that test positive for non-O157:H7 Shiga-toxin producing E.coli strains O26, O103, O45, O111, O121 and O145 will be banned from being sold for public consumption.

The Centers for Disease Control and Prevention (CDC) identified these particular serogroups of non-O157:H7 Shiga-toxin producing E.coli, or non-O157 STEC, as those responsible for the greatest numbers of non-O157 STEC illnesses, hospitalizations, and deaths in the United States.

Lessons From Europe in the E. Coli Outbreak

2011-09-12T16:27:00.002-04:00

Perhaps we have focused too much on traceability and should put more resources into epidemiology. Perhaps the imbalance is resources to traceability is because it provides concrete results that can immediately be demonstrated and showcased. In addition, large businesses already invested in traceback ability. Traceability is important, but traceability matters little if the epidemiology is incorrect or incomplete.

Jim Prevor wrote, "People are dropping dead from eating food and we are too cowardly to suggest irradiation. This is bizarre. The failure of public health authorities to demand the use of irradiation is evidence of a politically influenced establishment that is not, in fact, putting public health first."

Of course, public resistance to the technology is also a reason for underutilization of irradiation. However, there is no doubt that irradiation of produce that is eaten raw could save many lives. For more information on this topic, visit the NPR website Irradiation Underused To Fight E. Coli in Foods.

Proposed Foodborne Illness Reduction Act of 2011 (S. 1529)

2011-09-09T11:59:00.002-04:00

Senator Gillibrand introduced bill S.1529 in the U.S. Senate yesterday. The bill is titled as the "Foodborne Illness Reduction Act of 2011''.

Extension of Comment Period on FDA's Guidance for NDI Notifications

2011-09-09T11:57:00.000-04:00

Today FDA published in the Federal Register a notice granting a 60-day extension (until December 2, 2011) for comments on the FDA's draft guidance on New Dietary Ingredient ("NDI") notifications, which the Agency issued on July 5, 2011. More information is available here.

Bayer to pay $750 Million to End Lawsuits Over Genetically Engineered Rice

2011-07-06T17:53:00.000-04:00

According to Bloomberg, Bayer AG agreed to a $750 million settlement to resolve claims with about 11,000 U.S. farmers who said a strain of the company's genetically modified rice tainted crops and ruined their export value. The settlement ends scores of lawsuits filed against the Bayer CropScience unit by farmers in Texas, Louisiana, Missouri, Arkansas, and Mississippi.

In August 2006 the USDA said that trace amounts of the company's experimental LibertyLink strain were found in U.S. long-grain rice. Within four days, declining rice futures cost U.S. growers about $150 million, according to a complaint filed by the farmers.

The official Bayer CropScience statemen states in part, "Although Bayer CropScience believes it acted responsibly in the handling of its biotech rice, the company considers it important to resolve the litigation so that it can move forward focused on its fundamental mission of providing innovative solutions to modern agriculture."

Summary of Key Provisions of the Food Safety Modernization Act

2011-06-28T14:45:00.000-04:00

The FDA Food Safety Modernization Act (FSMA), which signed into law by President Obama on January 4, 2011, amends the Federal Food, Drug, and Cosmetic Act to shift the focus of the Food and Drug Administration (FDA) from primarily reacting to food safety problems to prevention.

A summary of key new provisions and their impact is available on the Institute for Food Laws & Regulations website here.

FDA's Nanotechnology Guidance

2011-06-20T14:31:00.000-04:00

Nanotechnology is the science of manipulating materials on the nanoscale. “Nanotechnology,” “nanoscale,” and related terms lack definitions in U.S. food law. However, common use of the term “nanotechnology refers to the engineering (deliberate manipulation, manufacture, or selection) of materials that have at least one dimension in the size range of approximately 1 to 100 nanometers.

Nanotechnology is an emerging technology that has the potential to be used many products, including drugs (e.g., to increase bioavailability) and foods (e.g., to improve food packaging). Nanoscale materials can have different chemical, physical, or biological properties compared to their conventionally scaled counterparts. These materials warrant further regulatory attention because the properties and phenomena of nanoscale materials can affect safety, effectiveness, performance, and quality of the materials.

Rather than define nanotechnology, FDA issued draft guidance on nanotechnology that defines when the agency increase product scrutiny based on the application of nanotechnology. Specifically, FDA will ask:

1. Whether an engineered material or end product has at least one dimension in the nanoscale range (approximately 1 nm to 100 nm); or

2. Whether an engineered material or end product exhibits properties or phenomena, including physical or chemical properties or biological effects, that are attributable to its dimension(s), even if these dimensions fall outside the nanoscale range, up to one micrometer.

Note that FDA is interested in the engineered nanoscale materials and the application of nanotechnology as distinguished “from those products that contain incidental or background levels of nanomaterials or those that contain materials that naturally occur in the nanoscale range. FDA is particularly interested in the deliberate manipulation and control of particle size to produce specific properties, because the emergence of these new properties or phenomena may warrant further evaluation. This is distinct from the more familiar use of biological or chemical substances that may naturally exist at small scales, including at the nanoscale, such as microorganisms or proteins.”

FDA’s product focused review is similar to the agency’s regulatory policy for recombinant DNA techniques (GMOs). As with GMOs, FDA does not categorize the technology as either benign or dangerous. A product’s final attributes determine the outcome of FDA’s review. However, the agency considers the process of a product’s development as a part of the means for determining the attributes of the final product.

FDA’s draft guidance, Considering Whether an FDA-Regulated Product Involves the Application of Nanotechnology, Draft Guidance for Industry (June 2011) is available here.

A more sophisticated crisis response

2011-06-17T08:33:00.003-04:00

Alberto Alemanno has a thought provoking article regarding the response to the recent E. coli outbreak. Would it have been better if the European Commission had taken on more powers?

The Commission and the European Food Safety Authority (EFSA) could supervise the risk assessments conducted across Europe and coordinate the task of communicating the outcome of those assessments. A central organization could have more sophisticated ability to collate, assess, and distribute information than individual national authorities.

Read more here.

Alberto Alemanno is a guest instructor at the Institute for Food Laws and Regulations at Michigan State University. He is associate professor of law at École des Hautes Études Commerciales (HEC), Paris, adjunct professor of global risk regulation at Georgetown University Law Centre, and editor of the European Journal of Risk Regulation.

Don't eat raw sprouts. That's the best advice for all of us.

2011-06-17T08:20:00.000-04:00

Sprouts can carry danger - Fitness - NewsObserver.com

They just look so innocent. It's hard to imagine that a sprout could be a killer.

A few bad sprouts, however, have recently reminded us that these fresh, green frillies have the potential to spread illness and worse. E. coli bacteria in fresh sprouts produced in Germany have in the past few weeks killed 31 people and made more than 3,000 others sick.

It's not new. Sprouts have been involved in this sort of mischief many years.

Training and an Integrated Food Safety System

2011-05-20T12:47:00.000-04:00

Rightfully so, the FDA Food Safety Modernization Act includes language recognizing the importance of integrating state and local regulatory programs with the federal ones. Training is key to the success of creating an integrated food safety system. On this topic, Joseph Corby, Gerald Wojtala, and Craig Kaml co-wrote the cover story of the April/May 2011 issue of Food Safety Magazine, titled, "Training in an Integrated Food Safety System: Focus on Food Protection Officials."

Global Food Law & Policy

2011-05-20T10:57:00.000-04:00

The Summer Academy on Global Food Law & Policy ++ 25-29 July 2011 ++ Lake Como, Italy ++ few places available ++ www.lexxion.eu/conferences ++ Apply now!

Time to Modernize the Toxic Substances Control Act of 1976

2011-05-05T10:34:00.000-04:00

High-profile media coverage of specific chemicals, like bisphenol A in infant bottles and can liners, creates anxiety about food regulation, but the problems of risky chemical exposure is much greater with non-food consumer goods. Chemicals added to food and from food contact materials are regulated as food additives under a relatively stringent review process under the Food, Drug, and Cosmetic Act.

On the other hand, non-food chemicals are regulated under the Toxic Substance Control Act of 1976 (TSCA), which is widely recognized as ineffective in protecting us from hazardous chemicals in the marketplace. In three decades of existence, TSCA has been used to regulate only five chemicals or chemical classes out of the thousands of chemicals that are in commerce. Under TSCA, chemical companies have no responsibility to perform premarket testing or postmarket follow-up of the products that they produce; in fact, TSCA creates disincentives for the companies to produce such data. Voluntary programs have been inadequate in resolving problems.

Senator Frank R. Lautenberg (D-NJ) introduced new legislation to modernize the Toxic Substances Control Act of 1976 (TSCA) and protect Americans from exposure to dangerous toxins. The law would for the first time require that chemical manufacturers demonstrate the safety of industrial chemicals used in everyday household products. Senator Lautenberg launched a video on his Facebook and Twitter pages to build support for chemical safety reform and his "Safe Chemicals Act of 2011." Watch it here.

Public Morals Proposed as a Grounds to Ban GMOs

2011-04-21T13:22:00.001-04:00

Public morals, public order, "social policy objectives," and "historical heritage" are some of the reasons the European Commission has proposed as grounds for a national ban of genetically modified crops. The plan presented by John Dalli, the European commissioner for health and consumer policy, is to give governments greater leeway to ban GM crop cultivation for factors other than health or environmental grounds. The legal service of the Council of Ministers criticized the proposal as contrary to World Trade Organization (WTO) rules and the EU's own single market. More information is available from Jennifer Rankin, Growing GM crops 'could pose a threat to public order,' EuropeanVoice.com (Feb. 3, 2011).

FSIS Announces Final Rule for Interstate Shipment of State-Inspected Meat and Poultry Products

2011-04-21T13:22:00.000-04:00

On April 19, 2011, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced a final rule that will broaden the market for smaller state-inspected plants. This voluntary cooperative interstate shipment program will allow select establishments to ship meat and poultry products, bearing an official USDA mark of inspection, across state lines.

Advance copy of the document, Cooperative Inspection Programs: Interstate Shipment of Meat and Poultry Products (Apr 19, 2011), submitted to Office of the Federal Register is available here.

FDA Announces Food Defense Mitigation Strategies Database

2011-04-07T10:20:00.000-04:00

The new online database was developed by the Food and Drug Administration (FDA) for the food industry to help protect the food supply from deliberate acts of contamination or tampering. The Food Defense Mitigation Strategies Database (MSD) provides a range of preventive measures that companies may choose to implement to better protect their facility, personnel, products, and operations. Visit the Mitigation Strategies Database here.

Summer Academy on Global Food law & Policy

2011-03-17T12:16:00.001-04:00

The third Summer Academy in Global Food Law & Policy will take place at Como Lake - Italy, July 25-29, 2011, at the beautiful Villa La Collina. A distinguished faculty from relevant food organizations (WTO, Codex, EFSA, EU Commission), industry (Coca Cola) as well as academia (Michigan, Bocconi, HEC Paris) will be animating cutting-edge discussions on the latest developments in global food governance, from food private standards to health claims, from US Food Modernization Act to novel food regulation.

Among the those presenting are four faculty from the Institute for Food Laws and Regulations (IFLR) at Michigan State University: Neal Fortin, Professor at MSU and IFLR Director along with IFLR guest instructors Alberto Alemmano, Associate Professor of Law at HEC Paris, Gretchen Stanton, Senior Counsellor at WTO, and Raymond O'Rourke, Barrister, Ireland.

For more information on the program and the faculty, please find the brochure here and more information here and here. Please don't hesitate to contact Nikola Bock (bock@lexxion.de) for more information.

Chief Justice Roberts Lectures AT&T on the Differences between Corn and Corny

2011-03-07T07:57:00.001-05:00

In the recent FCC v. AT&T decision, the Supreme Court unanimously shot down the argument that corporations have "personal privacy" which allows them to withhold information under the personal privacy exceptions to the Freedom of Information Act (FOIA). (Justice Kagan did not participate.) AT&T argued that since Congress had defined "person" to include corporations, "personal privacy" rights should apply to a corporation. AT&T argued that the adjectival form of the defined word, personal, should refer to the defined word, person.

Chief Justice Roberts gave AT& T a lesson on the the complexity and nuance of American English with some wry humor:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun "crab" refers variously to a crustacean and a type of apple, while the related adjective "crabbed" can refer to handwriting that is "difficult to read," Webster's Third New International Dictionary 527 (2002); "corny" can mean "using familiar and stereotyped formulas believed to appeal to the unsophisticated," id., at 509, which has little to do with "corn," id., at 507 ("the seeds of any of the cereal grasses used for food"); and while "crank" is "a part of an axis bent at right angles," "cranky" can mean "given to fretful fussiness," id., at 530.

In short, Chief Justice Roberts held that a corporation doesn't qualify for a "personal privacy" exemption under the law.

"We trust that AT&T won't take it personally," he wrote.

The full opinion is available here.

EU BPA Ban Now in Effect

2011-03-07T07:54:00.000-05:00

A ban prohibiting the manufacture in the European Union of baby bottles containing Bisphenol A (BPA) became effective March 1, 2011. BPA is an organic molecule that is used in the manufacture of polycarbonate plastics. Small amounts of BPA can be released from plastic containers into the food they carry if these containers are heated at high temperatures. According to scientific evidence, infants' ability to eliminate BPA is still building up during their first six months of life.
The ban of the manufacture of baby bottles with BPA was adopted in January (EU Directive (2011/8/EU) and entered into force on March 1. For more information, visit Alberto Alemanno's blog here.

‘Cheeseburger bill’ would block obesity lawsuits

2011-02-16T14:32:00.000-05:00

Food Safety News reports that Minnesota's State Rep. Dean Urdahl, R-Grove City, has reintroduced legislation to bar Minnesotans from suing their favorite fast food restaurants for making them fat. The Personal Responsibility in Food Consumption Act, also known as the "cheeseburger bill," would prevent anyone in Minnesota from suing a fast-food restaurant for making them fat.

Twenty-three other states have passed similar laws according to the National Restaurant Association. Of course, anyone can sue anyone in America, but suits like this are summarily thrown out of court—even without hamburger shield laws. "You made me fat" lawsuits are going forward nowhere except on television. ABC's "Harry's Law" recently had a story with an overweight mother of several plump children who won $880,000 in an out-of-court settlement.

Black on Meat (or Lack Thereof) at Taco Bell

2011-02-02T14:30:00.000-05:00

The Daily Show With Jon Stewart

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FDA's First Year Report on the Reportable Food Registry

2011-01-30T18:23:00.000-05:00

The Food and Drug Administration's (FDA) report on the first year of the Reportable Food Registry states that the data, "represent an important tool for targeting inspection resources, bringing high risk commodities into focus, and driving positive change in industry practices–all of which will better protect the public health." Commodities that feature prominently in the Reportable Food Registry will receive additional FDA attention because the Food Safety Modernization Act mandates risk-based allocation of FDA resources.

Advancing Public Health Obesity Policy Through State Attorneys General

2011-01-30T18:05:00.001-05:00

Jennifer Pomeranz and Kelly Brownell with the Yale Rudd Center for Food Policy & Obesity have authored "Advancing Public Health Obesity Policy Through State Attorneys General." The article refers to the role played by state attorneys general in public health policy on tobacco. They contend that attorney generals "can be leaders in formulating and effectuating obesity and food policy solutions." The article also takes note of recent actions by state attorney generals have taken regarding purported misleading labeling of food and beverage products.

Toxic Waste Candy?

2011-01-14T10:59:00.000-05:00

FDA announced the recall of Toxic Waste® brand Nuclear Sludge® Chew Bars, all flavors due to elevated lead levels.

This puts a new twist on truth in labeling.

"Neal Fortin literally wrote the book on the nation's food laws"

2011-01-04T22:38:00.001-05:00

CBS WLNS interviewed me regarding the FDA Food Safety Modernization Act.

The Food Safety Enhancement Act Passes the House

2010-12-22T09:59:00.000-05:00

The U.S. House of Representatives passed Food Safety Enhancement Act in the final days of the 111th Congress. Now the bill heads for the desk of President Obama, who is expected to sign it into law. You may find a copy of the latest available GPO version of the text - this is not final - here, courtesy of Charles Woodhouse. This provisional text (240 pages) was extracted from the 2,000 pages of HR 3082. Alternatively, you may go here and scroll down to p. S10745).

Happy Holidays

2010-12-18T19:38:00.006-05:00

Senate Passes Overhaul of Food Safety Law

2010-11-30T13:40:00.000-05:00

   The Senate this morning passed an overhaul of the nation's food-safety system by a vote of 73 to 25. The legislation would strengthen the Food and Drug Administration. Staunch opposition by Senator Tom Coburn of Oklahoma forced months of delay, because he wanted less food safety regulation, not more.
   Despite unusual bipartisan support, the bill could still die because the Senate must be reconciled with version passed earlier by the House of Representatives. The Senate's version includes an local-food producers' exemption introduced by Senator Jon Tester.
   An article of the passage is available here in the New York Times.

Federal Safety Standards Would Help Small Farms

2010-11-02T17:39:00.000-04:00

Matthew Enis of Supermarket News wrote a column explaining why pending food safety legislation should not let small, independents off the hook. Some independent growers and food activists fear that the FDA would use increased powers to harass small farmers and the increased compliance cost could them out of business.

"The fact is, the local foods movement is enjoying an all-purpose halo effect right now, but advocates can't take safety for granted. It's still highly unlikely that a farmers' market will ever cause a multi-state outbreak. But, the Internet and social media tools will magnify the effect of minor outbreaks in the future. If small growers want to maintain their wholesome image, they should expect all of their peers to be meeting the same standards for safety."

How Food Recalls Work - A Look at Distribution Technology

2010-10-20T15:19:00.001-04:00

The recent recall of nearly half a billion eggs reignited the debate over mandatory tracking for food distribution reaching back to the farm. Stephen Jannise of Distribution Software Advice has written an interesting about the egg recall. He created a hypothetical, behind-the-scenes illustration of how a food recall works. You can read it here.

Legislation for Labeling Biotech Food

2010-10-17T21:07:00.000-04:00

U.S. Representative Rosa DeLauro (D-Conn.) has introduced "The Consumer Right to Know Food Labeling Act of 2010," which would require labeling for food that contains genetically engineered (GE) or cloned animal products. The bill would amend the Food, Drug, and Cosmetic Act and Meat Inspection Act. The bill also directs USDA and FDA to develop and implement a recordkeeping audit trail applicable to “any person that prepares, stores, handles, or distributes a cloned product for retail sale.” A copy of the bill is here.

IOM Front-of-Package Label Committee report

2010-10-14T08:26:00.000-04:00

The Institute of Medicine (IOM) released its Front-of-Package (FOP) labeling report. This Phase I report provide a detailed examination of about 19 of the existing FOP schemes and some recommendations about what such schemes ought to do. As the IOM press release explains:

A multitude of nutrition rating, or guidance, systems have been developed by food manufacturers, government agencies, nutrition groups, and others in recent years with the intent of helping consumers quickly compare products’ nutritional attributes and make healthier choices. Ratings are typically communicated to shoppers through symbols placed prominently on food packaging, usually on the front, or on retail shelf tags. Unlike the Nutrition Facts panel, these rating systems and symbols are unregulated, and different systems focus on different nutrients. The variation may confuse consumers, and questions have been raised about the systems’ underlying nutritional criteria.

Marion Nestle provides a good summary of the report here.

Symposium: New Landscapes in Food and Agricultural Law and Policy

2010-09-28T21:52:00.001-04:00

The University of Oregon School of Law will be presenting a symposium titled, Cultivating our Future: New Landscapes in Food and Agricultural Law and Policy. The symposium is October 1, 2010, 8-5pm PST, in Eugene, Oregon. Neal Fortin, Director of the Institute for Food Laws & Regulations at Michigan State University will be presenting on the panel, “Food for Thought–Strategies for Advocacy.” Click here for more information. Click here to register.

Sen. Durbin to Coburn's Obstruction of S. 510

2010-09-26T09:49:00.000-04:00

Senator Durbin unveils Sen. Coburn's blind obstructionism.

Fwd: Food Safety Accountability Act

2010-09-24T10:12:00.000-04:00

Senators Patrick Leahy, Amy Klobuchar, and Al Franken have introduced the Food Safety Accountability Act of 2010, (S. 3767). The bill would not amend the Food, Drug, and Cosmetic Act. Rather the bill creates a new penalty in Chapter 47 of title 18 of the United States Code. Title 18 contains crimes and criminal procedure, and chapter 47 contains the various crimes of fraud. The new criminal penalty would be for knowing introduction of misbranded or adulterated food into interstate commerce.

There already is an intentional crime penalty section in the FDCA. So it is interesting that the Senators choose the fraud chapter of criminal code rather than the Food, Drug, and Cosmetic Act (FDCA). Perhaps they did this to move the bill through a more favorable committee. Senator Leahy chairs the Senate Judiciary Committee. Maybe this will prod the Senate to vote on the Food Safety Modernization Act, S. 510, which has languished in the Senate for 13 months.

Stephen Colbert to Testify to the House Today

2010-09-24T10:11:00.000-04:00

Doug Powell reports that Stephen Colbert is scheduled to testify at the " “Protecting America’s Harvest,” House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law.

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Fallback Position - Migrant Worker Pt. 2

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Moldy Oldy Food Laws - Time for the Senate to Act

2010-09-17T11:45:00.002-04:00

When Theodore Roosevelt signed the Pure Food and Drug Act in 1906, it was a landmark. Unfortunately, in many situations the Food and Drug Administration (FDA) is still works with the 1906 tools. We don't expect FDA to drive Model-Ts. We shouldn't expect them to work with an antiquated food food law.

After half a billion eggs were recalled, you would think Congress would act on long-awaited food safety legislation. But Senate Bill 510 has stalled for more than a year. The House passed its version of bill in July 2009. In those 13 months there have been 85 food recalls, and most recently, the largest egg recall in history.

Time is running out because nothing will get done in Congress from November on into 2011. Now is the time to act. Call your senators and urge them to bring S. 510 to a vote!

My local newspaper's reporting of maggots in a coffee maker reminded me of why we need effective government regulation of food. The public needs a watchdog because we cannot see the maggots inside the food processing equipment. The food industry needs an effective watchdog, too, because their business relies on public confidence. I am sure sales of mochas and cappuccinos dropped at all local outlets after the newspaper reported on a single bad apple.

Shitor sauce recalled for dangerous bacteria

2010-09-06T16:55:00.002-04:00

I could not make this up. The Canadian Food Inspection Agency is warning the public not to consume Shitor sauce because this product may be contaminated with Clostridium botulinum.

Choices Issue Devoted to GMOs

2010-09-06T16:52:00.000-04:00

Interesting reading if you like reading on GMOS: http://www.choicesmagazine.org/magazine/block.php?block=48

S 510, the FDA Food Safety Modernization Act, is still alive

2010-08-13T21:47:00.000-04:00

Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor and Pensions Committee, issued the following statement on the manager's package for The FDA Food Safety Modernization Act. The full manager's package (over 200 pages) is available on Bill Marler's site: S. 510 - FDA Food Safety Modernization Act.

"For far too long, the headlines have told the story of why this measure is so urgently needed: foodborne illness outbreaks, product recalls and Americans sickened over the food they eat. This 100-year-old plus food safety structure needed to be modernized," said Harkin.

"I am pleased that after a great deal of time and effort from members on both sides of the aisle, we have a strong, bipartisan proposal that will overhaul our current food safety system – a system that right now fails far too many American consumers. I am confident that the remaining details will be worked out and am hopeful that the measure will come to the Senate floor as soon as possible."

The FDA Food Safety Modernization Act passed the HELP Committee without a single dissenting vote on November 18, 2009. The bill is supported by dozens of industry and consumer organizations including the Center for Science in the Public Interest, the Consumer Federation of America, the Grocery Manufacturers of America, the National Association of County and City Health Officials, the National Restaurant Association and the Trust for America's Health.

Raw Milk - Two Perspectives

2010-08-11T09:56:00.000-04:00

Bill Marler and Marion Nestle spoke with NPR about the safety (or lack thereof) of raw milk. You can read Bill's blog post here. Listen to the full 10 minutes at NPR here.

EFLA Congress on Private Food Law

2010-08-11T09:47:00.000-04:00

The European Food Law Association (EFLA) Congress, which will take place in Amsterdam from September 15–17, 2010, is entitled "Non-regulatory dimensions of food law." Lawrence Busch, University Distinguished Professor, Michigan State University, will present the talk, "Quasi-States? The Unexpected Rise of Private Food Law." He discusses how the retreat of the state led to the rise of a wide range of 'quasi-states' of firms, industry groups, and private voluntary organisations, pursuing their own aims and interests through private codes, laws, rules, and regulations. Whether they can achieve legitimacy and democratic modes of governance remains to be seen.

For more information, please visit www.efla-aeda.org.

Chasing the Ambulance Away: Reshaping the Role of the Personal Injury Lawyer in Society and the Law

2010-07-15T16:37:00.000-04:00

Denis Stearns, Founding Partner, Marler Clark LLP, PS, was the featured speaker at The Robert Leader Endowed Lecture, Thursday, June 17 at Michigan State University. The lecture entitled, Chasing the Ambulance Away: Reshaping the Role of the Personal Injury Lawyer in Society and the Law is available online; click here.Stearns began his involvement in food-related litigation in 1993 as one of the lead defense attorneys handling the cases arising from the historic Jack in the Box E. coli O157:H7 outbreak. Since helping to found Marler Clark twelve years ago, he has worked on hundreds of food outbreak cases, including recent ones involving E. coli O157:H7-contaminated Dole spinach, Salmonella in Peter Pan peanut butter and Banquet pot pies, and a spate of outbreaks involving E. coli O157:H7 in ground beef, Nestlé cookie dough, and raw milk.

Jim Prevor: Aggrandizing the FDA

2010-07-07T10:32:00.000-04:00

Jim Prevor, the Perishable Pundit, has written a provocative piece, “How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions,” for The New Atlantis. Jim Prevor’s lead point—that attention on improving the FDA distracts from real solutions for nagging food safety concerns with raw produce—is well taken. Ironically, the article’s leading points—a cursory dismissal of the FDA Food Safety Modernization Act and a flawed discussion of product liability standards—are distractions from other solutions proposed that deserved far more attention. Indeed, the FDA Food Safety Modernization Act will not solve our food safety concerns with raw produce. Nor will the law eliminate all problems with the Food and Drug Administration (FDA). Nevertheless, these points do not add up to a reason to withhold support for the bill.

But read on. Jim Prevor is a voice crying out in the wilderness about the need to invest in food safety research, state health laboratories, food safety education, and agricultural extension. These crying needs are why discussion of strict liability versus negligence are a distraction. No system of liability will generate the level of private investment in research and extension that are desired. Private interests should not be expected to invest in the commons. That is why there is a need for public investments in food safety research, state health laboratories, food safety education, and agricultural extension for the greater common good.

For my Francophone readership, Jim Prevor’s article was translated into French and is available here.

Summer Academy in Global Food Law & Policy, Como Lake, Italy

2010-07-07T10:31:00.000-04:00

The 2^nd EFFL Summer Academy in Global Food law & Policy will be held on July 26-30, 2010, at the beautiful Villa La Collina on the shores of the Como Lake, Italy. Building on the successful previous edition, the academy will offer scientific reflection and discourse on key legal and policy issues in European and World food law as well as information and updates on the latest developments. This will be achieved through a dynamic, informal and highly interactive five-day programme, which includes lectures, presentations, discussion groups and social activities. The faculty of the academy consists of food experts coming from relevant authorities, European and US institutions, academia, legal practice and the industry.

Speakers

Alberto ALEMANNO Associate Professor of Law HEC, Paris

David BYRNE S.C. Former EU Commissioner for Health and Consumer Protection

Dirk DETKEN Head of the Units Legal & Policy, European Food Safety Authority (EFSA)

Marsha A. ECHOLS, Director of the World Food Law Institute, Washington D.C.

André EVERS, Food and Veterinary Office, European Commission

Andreas KADI, Chief Science Officer, Red Bull GmbH

Susanne KETTLER, Scientific and Regulatory Affairs Director, Coca-Cola Company

Vittorio SILANO, Chair of the Scientific Committee, European Food Safety Authority

Topics

The summer academy will cover main aspects of the law and policy of food regulation. Thereby, it will give a broad overview on the subject from a legal as well as a public policy point of view. In particular, it will discuss on the following:

- The global and international food regulation (WTO, SPS/Codex Alimentarius, WHO/FAO)

- The State of Play of WTO trade disputes (Hormones II, COOL, Australia Apples, EC-Poultry) and EU Food regulation (Food Supplements, enriched foodstuffs, novel food and Food Improvement Agents Package)

- The emergence of private standards
- Food quality and labelling issues

- The new challenges facing EFSA (Health Claims; Animal Cloning; Safety and claims of botanical) and its relationships with US FDA/USDA

- The risk analysis framework as applied in the food regulation sector

- The system of official controls
- Data sharing, protection and compensation in pre-market approval regimes

Please apply no later than May 30, 2010.

Further information, please visit: http://www.lexxion.de/2nd-effl-academy/

Food Inc. and Commentary

2010-05-06T22:08:00.000-04:00

Check out Susan Schneider's posting over at the Agricultural Law blog: Food Inc. and Commentary

GAO Reports about FDA Strengthening Oversight of Imported Food

2010-05-06T22:05:00.001-04:00

The Government Accountability Office (GAO) today released the following testimony, "Food Safety: FDA Could Strengthen Oversight of Imported Food by Improving Enforcement and Seeking Additional Authorities.” GAO-10-699T, May 6 available at: http://www.gao.gov/cgi-bin/getrpt?GAO-10-699T

Highlights - http://www.gao.gov/highlights/d10699thigh.pdf

Salk Cures Disease, Salt Cures Ham

2010-05-05T12:56:00.000-04:00

Stephen Colbert takes on salt with guests from the Salt Institute and Center for Science in the Public Interest:

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Spend on science not marketing for a positive health claim

2010-05-05T09:44:00.005-04:00

Companies should put more money into studies to substantiate the science of health claims, even if that means spending less on marketing, said a member of EFSA’s evaluating panel.

“Obviously science costs money. Marketing costs money, too, and there are quite a few companies where the marketing budget is larger than the scientific budget. And perhaps that is not always such a good idea,” said Henk van Loveren, professor of immunotoxicology at the Dutch National Institute for Public Health and the Environment (RIVM) and a member of European Food Safety Authority (EFSA) Panel on Dietetic Products, Nutrition and Allergies (NDA).

“If you want to do science and if you want to have a scientific basis for a claim, then you need to have the data, and it costs money if you want to do the studies,” he added.

Read the rest of the story here.

US GMO Labeling Position at Codex Could Pose Problem

2010-05-05T09:43:00.005-04:00

“More than 80 food processing, farming and consumer organizations have called on officials to revise the US position on draft Codex food labeling guidance, saying it could cause problems for labeling food as GM-free,” notes Caroline Scott-Thomas in FoodNavigator.com.

The Codex Committee on Food Labeling (CCFL) is due to meet in Quebec City from May 3-7. In a draft document, Codex proposes to allow countries to adopt different positions for labeling of genetically modified (GM) foods. But the United States’ position, drafted by the Food and Drug Administration (FDA) and the Department of Agriculture (USDA), opposes this, stating that Codex should not “suggest or imply that GM/GE foods are in any way different from other foods” by allowing countries the option of mandatory labeling. The position is due to be presented at the CCFL meeting next month.

The Codex Alimentarius Committee is a United Nations organization that sets food safety and labeling standards, which are those used in settling World Trade Organization disputes.

The letter is available here.

Food Labeling Workshop at MSU July 28-29

2010-04-30T15:58:00.004-04:00

Institute for Food Laws & Regulations

» Hurry, registration is limited

Food Labeling Workshop

July 28-29, 2010 · Lansing, Michigan

This workshop presents the FDA requirements for US food labeling. The workshop format and materials are designed to provide a user-friendly approach for those new to food labeling and also provide a thorough system and reference for those experienced with food label design and review. The workshop format allows time for questions. The focus is practical, and students are encouraged to bring problem labels for hands-on review.
For more information, click here.

Early bird discount (by May 14, 2008): $895

Register Online or

Download a Registration Form (PDF)

Free Bonus
Workshop participants will receive the Guide to U.S. Food Labeling Law (Vol. I) by Peter Barton Hutt, Esq. The Guide provides practical guidance and expert advice on FDA, FTC, and USDA labeling requirements in plain English. The Guide is an invaluable resource for regulatory officials, industry personnel, and anyone reviewing food labels.

The Instructors

Neal Fortin, is Professor and Director of the Institute for Food Laws & Regulations, Michigan State University. His law practice experience concentrated on food law, labeling, ingredient evaluation, advertising, legislation, and administrative law. Professor Fortin also has 20 years experience in food regulatory work with the state of Michigan, including being the primary drafter of Michigan Food Law of 2000. He has trained more than 1,500 people on the labeling law.

Constance Henry, U.S. Food and Drug Administration (FDA).

James E. Hoadley is a senior consultant with EAS Consultant Group. In Dr. Hoadley's 20-year FDA career he served ten years a Senior Regulatory Scientist in the Office of Nutritional Products, Labeling and Dietary Supplements (ONPLDS) with primary responsibilities in food label claim regulations. Dr. Hoadley has been directly involved in the scientific review and drafting of authorizing regulation, or denials, of nearly all health claim petitions received by CFSAN over the last decade. Dr. Hoadley has received the CFSAN Distinguished Career Service Award.

John Spink is the Director of the Packaging for Food and Product Protection Initiative at Michigan State University (MSU) and a faculty at the MSU School of Packaging. John developed and teaches the graduate classes “Packaging for Food Safety” and “Food Protection & Defense – Packaging Module”, and the “Future of Sustainability.”

IFLR Internet Courses

International Food Laws and Regulations
Food Regulation in the United States
Food Regulation in the European Union
Food Regulation in Latin America
Food Regulation in Canada
Codex Alimentarius (The Food Code)
IPPC (International Plant Protection Convention)
Food Regulation in Asia
New Summer Course Offering:
Animal Health, World Trade, and Food Safety (OIE)

Learn more about IFLR at:
www.IFLR.msu.edu or call (517) 355-8295

Email: IFLR@msu.edu Telephone: (517) 355-8295
Fax: (517) 432-1492 web: www.IFLR.msu.edu

Institute for Food Laws and Regulation
Michigan State University, 140 G.M. Trout Building, East Lansing, MI 48824

If you would like to be sure of receiving future IFLR announcements:
Subscribe to the IFLR mailing list

More Frooty Claims

2010-04-24T12:30:00.003-04:00

A class action lawsuit was refilled against Kellogg USA alleging that “Froot Loops”—here’s the shock—contain no actual fruit! The plaintiff said he was duped by the “brightly colored cereal made to resemble fruit” depicted on the package, the use of the word “Froot,” and depictions of real fruit on the label.“ He finds these practices likely to mislead and deceive a ‘reasonable consumer’ such as himself . . .” The plaintiff, Roy Werbel, claims he was deceived over a four year period when he bought the cereal.

I sympathized with Mr. Werbel’s plight. I really do. Really. Assuming he honestly ate Froot Loops for four years believing they were made from real fruit. Nonetheless, I am finding it hard to believe enough similarly situated consumers are out there for a class action. Can there really be a whole class of reasonable consumers that eat neon-colored, candy flavored loops of froot for the real fruit content?

You can read more here: Froot Loops’ complaint. I wrote about an earlier complaint here: “I Was Duped by the Loops of Fruit.” The case, Roy Werbel v. Kellogg USA, Case. No. CV 10-1660 EMC, was filed in the U.S. District Court for the Northern District of California on April 19, 2010.

If you had any doubts about globalization of food

2010-04-20T21:07:00.002-04:00

With Flights Grounded, Kenya's Produce Wilts by Jeffrey Gettleman of the New York Times discusses how the volcanic eruption in Iceland has devastated the horticulture businesses in Kenya. Horticulture is Kenya's top foreign exchange producer and a critical piece of the national economy.

Consumer Representatives Needed for FDA Advisory Committees

2010-04-20T21:05:00.000-04:00

Do you want to make a difference in FDA’s decision-making? Do you have ties to consumer groups or community-based organizations? Can you analyze scientific data? If so, plan to attend FDA’s public meeting on April 30, 2010, in Rockville, Md., to learn what it takes to become a consumer representative on FDA’s advisory committees and panels. More information is available here.

Proposed Free Speech About Science A...

2010-03-29T16:52:00.006-04:00

Peter M. Jaensch, in his blog post Proposed Food Labeling Changes May be Hard for Pharmaceuticals to Swallow, provides a snapshot introduced H.R. 4913–-the Free Speech About Science Act of 2010, which would amend the Food, Drug, and Cosmetic Act (FD&C Act) to expand disease and health-related claims in the labeling of some foods and dietary supplements. The bill would also add a new subsection to FD&C Act to permit certain claims "to diagnose, mitigate, treat, cure, or prevent a specific disease or class of diseases" in labeling for dietary supplements. These changes, Jaensch notes, "would permit food and dietary supplement manufacturers to make claims similar to those typically made for drug products, without subjecting them to the same degree of oversight or requiring the same depth of scientific analysis."

More efficient methods of food-recall notices needed

2010-03-29T16:51:00.001-04:00

MSU professor Ewen Todd discussed food recalls at the American Association for the Advancement of Science (AAAS) meeting. "As our food supply becomes increasingly global and interconnected, food recalls that were largely regional in the past have the potential of injuring vast numbers of consumers across the United States in relatively short periods of time," Todd said. "For this reason, time is of the essence in delivering targeted recall messages to consumers through various means to reduce the risk of illness. Direct phone calls, e-mail messages and even Facebook are now being explored for a more targeted approach, as opposed to the more traditional media and word of mouth."

Menu Nutrition Labeling and Consumer Choices

2010-03-29T16:51:00.000-04:00

Information is beginning to come in on the effect of providing nutrition information on menus in chain restaurants. The result is consumers make lower calorie selections. Here are some of the studies and commentaries:

The Stanford Graduate School of Business study, Calorie Posting in Chain Restaurants, looked at the effect of mandatory calorie posting on Starbucks stores in New York City. Customers averaged six percent less calories per transaction.

An Atlantic article, Calorie Labeling Works, II, which also references New York City health department's Preliminary Data from New York City , and a Yale study, Evaluating the Impact of Menu Labeling on Food Choices.

Nutrition Menu Labeling May Lead to Lower-Calorie Restaurant Meal Choices for Children in Pediatrics, which found that when nutritional information is available on menus, on average pick lower-calorie foods for their children. In BusinessWeek, Listing Calories on Fast-Food Menus Cuts Kids' Intake, quotes Dr. Pooja Tandon: "When parents are provided with calorie information they chose about 100 calories less [per meal] for their 3- to 6-year-old child compared to parents who didn't have that information."

The Wall Street Journal, Restaurants Begin to Count Calories, notes, "Restaurants from Applebee's to Starbucks are pushing new low-calorie menu items in an effort to attract customers who say they want healthier options. Chain restaurants, traditionally known for peddling fatty food and sugary drinks, hope that offering healthier fare will give them a competitive advantage, especially with the prospect of a federal nutrition labeling law looming."

How Great is the Burden of Foodborne Illness?

2010-01-20T14:03:00.000-05:00

Susan Jones, “Counting the global burden of foodborne disease,” Speaking of Medicine (Nov. 2, 2009):

[Y]ou may be surprised to find that the global burden of disease attributable to foodborne illness, which is perhaps the most basic information needed to push forward research and action on foodborne illness, is not known. Why is there such an apparent lack of interest in documenting the scope of illnesses that affect people from all countries? One reason may be a common misconception that foodborne diseases are mild and self-limiting. A second and very important reason is that it’s often incredibly difficult to attribute foodborne illnesses and deaths to a specific foodstuff. And a third reason is that there is no well-heeled funder providing the impetus and cash to tackle foodborne illness, unlike other global problems such as HIV, malaria and TB.

In 2007, the WHO launched an international initiative to tackle foodborne disease. The WHO Initiative to Estimate the Global Burden of Foodborne Diseases aims to quantify how many people die from, or are affected by, all major foodborne causes each year. The FERG (Foodborne Disease Burden Epidemiology Reference Group) initiative, led by Claudia Stein and Jorgen Schlundt from the WHO, aims to set the problem of foodborne illness incontext. . .

FERG has commissioned research seeking to quantify burdens of different foodborne diseases. Early reports were presented at the meeting and revealed the shocking level of the problem. A systematic review by Christa Fischer-Walker and Robert Black from Johns Hopkins School of Public Health in the US revealed that there are a whopping 5 billion episodes of diarrhea in children aged >5 annually, with 3.2 billion cases in South-East Asia. Specific inspection of papers reporting deaths revealed that there were more than 1.15 million estimated deaths from diarrhea in South East Asia and Africa each year in children >5; this is almost a million more deaths than was previously estimated. The paucity of data was laid bare by these preliminary results, with no data for China, Latin America, the Middle East. Pathogens in the spotlight in these systematic reviews were the usual suspects, including E. coli, Shigella, Vibrio cholerae, Campylobacter and Salmonella. This is not a burden solely borne by those living in poverty—455 million episodes of diarrhea each year in the Americas and 419 million episodes each year in Europe. The data are so limited that these global estimates are virtually bound to underreport the problem. . . .

Food in Bloom: Cross Pollination and Cultivation of Food Systems, Cultures and Methods

2010-01-20T13:39:00.001-05:00

The Twelfth Annual Joint Annual Meeting of the
Association for the Study of Food and Society (ASFS)
Agriculture, Food and Human Values Society (AFHVS)
with the Society for the Anthropology of Food and Nutrition (SAFN) June 2 to June 6, 2010.
Hosted by Indiana University, Bloomington, IN

For more information click here.

Time to Put Aside Biotech Biases

2009-11-21T13:52:00.000-05:00

The World Summit on Food Security in Rome just finished a few days ago. A few words of Peter Brabeck-Letmathe, the chairman of Nestlé, talking about how hostility to new food technologies exacerbated the global food crisis by holding back agricultural productivity, “It is disheartening to see how easily a group of well-intentioned and well-fed activists can decide about new technologies at the expense of those who are starving.”

Some have dismissed these remarks. Harder to dismiss are the thoughts of Paul Collier, a professor of economics at Oxford University and author of “The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It,” in the New York Times,

The debate over genetically modified crops and food has been contaminated by political and aesthetic prejudices: hostility to U.S. corporations, fear of big science and romanticism about local, organic production.

Food supply is too important to be the plaything of these prejudices. If there is not enough food we know who will go hungry.

Genetic modification is analogous to nuclear power: nobody loves it, but climate change has made its adoption imperative. As Africa’s climate deteriorates, it will need to accelerate crop adaptation. As population grows it will need to raise yields. Genetic modification offers both faster crop adaptation and a biological, rather than chemical, approach to yield increases.

Opponents talk darkly of risks but provide no scientific basis for their amorphous expressions of concern. Meanwhile the true risks are mounting. Over the past decade global food demand has risen more rapidly than expected. Supply may not keep pace with demand, inducing rising prices and periodic spikes. If this happens there is a risk that the children of the urban poor will suffer prolonged bouts of malnutrition.

African governments are now recognizing that by imitating the European ban on genetic modification they have not reduced the risks facing their societies but increased them. Thirteen years, during which there could have been research on African crops, have been wasted. Africa has been in thrall to Europe, and Europe has been in thrall to populism.

Genetic modification alone will not solve the food problem: like climate change, there is no single solution. But continuing refusal to use it is making a difficult problem yet more daunting.

I have written on a related aspect of this issue, In Lean Times, Biotech Grains Are Less Taboo. When there is no direct burden to people, they tend to take “better safe than sorry” as their overarching risk-management principle. Sometimes this approach works, but it also can magnify risk grossly out of proportion to reality.

Google legal research is free!

2009-11-18T13:09:00.000-05:00

Google launched a free online case law search system available through Google Scholar (select scholar as search option, then legal cases). Of course, it's not LEXIS or Westlaw, but it is surprisingly comprehensive and robust. Every citation is hyperlinked to the full text of the opinion cited. It looks like a great tool for preliminary research. One announcement is here.

Ensuring Global Food Safety

2009-11-17T15:36:00.002-05:00

Ensuring Global Food Safety: Exploring Global Harmonization, edited by Christine E. Boisrobert et al., is now published. I wrote a very small part of this large book. You can find out more here.

FDA To Look Into Safety of Caffeinated Alcoholic Beverages

2009-11-13T19:46:00.002-05:00

The Food and Drug Administration (FDA) notified nearly 30 manufacturers of caffeinated alcoholic beverages that it intends to look into the safety and legality of their products.

“The increasing popularity of consumption of caffeinated alcoholic beverages by college students and reports of potential health and safety issues necessitates that we look seriously at the scientific evidence as soon as possible,” said Dr. Joshua Sharfstein, principal deputy commissioner of food and drugs.

Under the Federal Food, Drug, and Cosmetic Act, a substance added intentionally to food (such as caffeine in alcoholic beverages) is deemed “unsafe” and is unlawful unless its particular use has been approved by FDA regulation, the substance is subject to a prior sanction, or the substance is Generally Recognized As Safe (GRAS). FDA has not approved the use of caffeine in alcoholic beverages and thus such beverages can be lawfully marketed only if their use is subject to a prior sanction or is GRAS. For a substance to be GRAS, there must be evidence of its safety at the levels used and a basis to conclude that this evidence is generally known and accepted by qualified experts.

The FDA alerted manufacturers to the fact that the agency is considering whether caffeine can lawfully be added to alcoholic beverages. The FDA noted that it is unaware of the basis upon which manufacturers may have concluded that the use of caffeine in alcoholic beverages is GRAS or prior sanctioned. To date, the FDA has only approved caffeine as an additive for use in soft drinks in concentrations of no greater than 200 parts per million. It has not approved caffeine for use at any level in alcoholic beverages.

The FDA requested that, within 30 days, the companies produce evidence of their rationale, with supporting data and information, for concluding that the use of caffeine in their product is GRAS or prior sanctioned. FDA's letter informed each company that if FDA determines that the use of caffeine in the firm's alcoholic beverages is not GRAS or prior sanctioned, FDA will take appropriate action to ensure that the products are removed from the marketplace.

In the past year, Anheuser-Busch and Miller agreed to discontinue their popular caffeinated alcoholic beverages, Tilt and Bud Extra and Sparks, and agreed to not produce any caffeinated alcoholic beverages in the future.

The federal agency with primary responsibility for regulating alcoholic beverages, the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau, requires that alcoholic beverages contain only ingredients that satisfy FDA's requirements for use. In late September, the FDA received a letter from 18 Attorneys General and one city attorney expressing concerns about caffeinated alcoholic beverages.

For more information visit: http://www.fda.gov/Food/FoodIngredientsPackaging/ucm190366.htm

Courts force U.S. reckoning with dominance of GM crops

2009-11-06T16:23:00.002-05:00

Paul Voosen, New York Times (Oct. 8, 2009), writes that 90% of U.S. soy and cotton crops are genetically engineered (GM crops). In addition, 85% of the corn crop is also genetically engineered, and it is found throughout the food system.

“These crops are safe to eat. The science on that is unequivocal, even in Europe, where a moratorium on new GM crops has existed for a decade. And by most accounts, GM crops have been an economic benefit to farmers, simplifying field maintenance and reducing the number of hands needed for weeding.

“But as these crops have come to dominate the agricultural landscape, farmers who eschew their growing -- for ethical, organic or trade reasons -- have found themselves at a loss, frustrated by regulators and the majority of fellow farmers who have accepted GM crops as the new normal. . . . For the past two decades, the government has argued "essentially that there's no difference between a GM crop and its nonmodified sibling," said Alison Peck, a law professor at West Virginia University.

"’Their arguments all sort of flowed from this presumption -- that these two kinds of crops are fungible,’ Peck said.

“Two recent decisions out of the Northern District of California are the first-time acknowledgement by any federal entity of a difference between GM and non-GM crops, Peck said. The latest ruling, on the GM sugar beets of Willamette Valley, came down late last month and will move into the remedy phase at the end of this month. Both rulings -- the first, upheld several times on appeal, came down in 2007 -- found the regulatory apparatus used by the Department of Agriculture severely lacking. USDA, along with the Food and Drug Administration and U.S. EPA, oversees GM crops, using jury-rigged laws written well before the invention of biotechnology. Unlike Japan, Europe or even Russia, the United States has never passed legislation on GM crops.”

USDA came to view GE and non-GE crops as identical, fungible. If the farmer wanted to keep GE-genes out of their field, it was that farmer’s burden to provide for buffer zones and other measures to keep out pollen drift. This could have serious economic consequences for organic and other non-GE farmers.

To make the point about keeping out pollen, Voosen makes a interesting comparison to cattle ranching. “In the eastern part of the United States, traditionally, farmers have been obliged to fence in cattle. In the West, meanwhile, landowners are required to fence out roaming herds. The same distinctions apply to crops. Europe has been busy erecting a complex regulatory apparatus requiring farmers to ‘fence in’ their GM crops with isolation distances and liability funds. With no regulations, the United States has in effect required non-GM farmers to ‘fence out’ GM crops, placing the economic burden on conventional farming.”

A copy of Judge Jeffrey S. White order in Center for Food Safety, et al. v. Thomas J. Vilsack, et al., is available here.

High Fructose Corn Syrup - 'Natural' or Not?

2009-11-03T09:46:00.000-05:00

Dave Babcock has written an excellent article on the debate over whether high fructose corn syrup is natural:

So, let's say I was making you dinner, and in preparing one of the ingredients was "fixed to a column by the use of a synthetic fixing agent, glutaraldehyde." Even if I told you that I washed off all the "unreacted glutaraldehyde," would you be willing to call the dinner I made you "natural?"

If you wouldn't, don't eat with the decision makers from the FDA.

Kudos to Marler Clark for presenting us with FoodSafetyNews.com.

More on natural claims is here: USDA Reopens Comments on Use of "Natural" and here: Health Canada Guidance on Food-like Natural.

I Was Dooped by the Loops of Froot

2009-10-26T10:48:00.000-04:00

What a shock to find out that Froot is not fruit. What next, no good luck from Lucky Charms? However, I am (pretty) sure Fruity Pebbles do not contain real pebbles.

Kevin Underhill at Lowering the Bar (legal humor, seriously) shares some humor at the expense of yet another consumer alleging being duped into thinking Froot Loops contained real fruit.

“[Plaintiff] was misled by the packaging and marketing, which by design and intent convey the message that the Product contains real, nutritious fruit," alleges Werbel about a product named "Froot Loops." The complaint continues, "[h]ad he known that 'Froot Loops' contained no fruit, he would not have purchased it." This, of course, is pleaded as a class action, and Werbel alleges that the manufacturer's practices with regard to Froot Loops "present a threat to members of the general public . . . ." Oh, the humanity.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals. But hey - just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation's bloggers does not mean you shouldn't give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg's are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Kevin Underhill swiped at earlier plaintiffs, who alleged they were led to believe that "Crunch Berries" and/or "Froot Loops" are made with real fruit, “I still think this is like claiming emotional distress because you just learned "The Hobbit" isn't a true story.”

In light of this case, SF Weekly has issued a “corporate caveat noting that, while our offices are located at 185 Berry Street, our publication should in no way be considered a nutritious source of fruit.”

Defect Action Levels (The Maggots in Your Mushrooms)

2009-10-24T12:32:00.005-04:00

It is economically impractical to produce food that is completely free of all naturally occurring defects. Non-hazardous defects that are unavoidable by good manufacturing practices are subject to tolerances, which the Food and Drug Administration (FDA) lists as “Defect Action Levels.”

E. J. Levy had an interesting op-ed piece recently on this topic:

You may be grossed out, but insects and mold in our food are not new. The F.D.A. actually condones a certain percentage of “natural contaminants” in our food supply — meaning, among other things, bugs, mold, rodent hairs and maggots.

In its (falsely) reassuringly subtitled booklet “The Food Defect Action Levels: Levels of Natural or Unavoidable Defects in Foods That Present No Health Hazards for Humans,” the F.D.A.’s Center for Food Safety and Applied Nutrition establishes acceptable levels of such “defects” for a range of foods products, from allspice to peanut butter.

Among the booklet’s list of allowable defects are “insect filth,” “rodent filth” (both hair and excreta pellets), “mold,” “insects,” “mammalian excreta,” “rot,” “insects and larvae” (which is to say, maggots), “insects and mites,” “insects and insect eggs,” “drosophila fly,” “sand and grit,” “parasites,” “mildew” and “foreign matter” (which includes “objectionable” items like “sticks, stones, burlap bagging, cigarette butts, etc.”).

Tomato juice, for example, may average “10 or more fly eggs per 100 grams [the equivalent of a small juice glass] or five or more fly eggs and one or more maggots.” Tomato paste and other pizza sauces are allowed a denser infestation — 30 or more fly eggs per 100 grams or 15 or more fly eggs and one or more maggots per 100 grams. . . .

E. J. Levy, The Maggots in Your Mushrooms, New York Times (Feb. 12, 2009).

For more fun and to amaze and gross out your friends: FDA’s Defect Levels Handbook: The Food Defect Action Levels — Levels of natural or unavoidable defects in foods that present no health hazards for humans.

Bon appétit!

Greg Jaffe Seminar on Genetically Engineered Food Oct 20 at Michigan State University

2009-10-19T09:45:00.001-04:00

Larry King Blows It On Unsafe Meat

2009-10-15T10:43:00.000-04:00

Marion Nestle’s comments about Larry King’s show on meat safety, Larry Kings Blows It On Unsafe Meat, is available in TheAlantic.com. A clip from the show, of Bill Marler’s reaction to Larry King butchering the term, “E. coli” appeared on David Letterman Show right near the end of the monologue (three minutes in).

More Soda Tax News

2009-10-14T08:45:00.000-04:00

The Food Law Prof Blog, Soda Tax in the News, has a compilation of articles on proposed taxes on sugar sodas:

Food Law Prof Blog on President Obama's thoughts.

"A recent study by a star-studded cast of nutrition and obesity experts published in the New England Journal of Medicine this week is stirring things up. :The Public Health and Economic Benefits of Taxing Sugar-Sweetened Beverages, (by Kelly D. Brownell, Ph.D., Thomas Farley, M.D., M.P.H., Walter C. Willett, M.D., Dr.P.H., Barry M. Popkin, Ph.D., Frank J. Chaloupka, Ph.D., Joseph W. Thompson, M.D., M.P.H., and David S. Ludwig, M.D., Ph.D.)"

New York Times, Sept. 16, 2009: Proposed Tax on Sugary Beverages Debated

ABCNews.go.com, Sept. 16, 2009: Public Health Leaders Propose Soda Tax

The Precautionary Principle Is Not The Answer

2009-10-10T13:34:00.012-04:00

“Better safe than sorry,” is a well known aphorism because it contains a lot of sense. The precautionary principle allures us with words that sound similar to common-sense precaution.

Unfortunately, the principle is a both a shape shifter and a chameleon. The term can shift in meaning to support whatever side one wishes to take on an issue. Worse, the principle appears to—but does not—provide us guidance in dealing with uncertain risk. The principle appears effective only because it compares uncertain risk against implicit zero risk for the status quo.

In the real world, difficult questions of uncertain risk are problems of benefits versus risks, risks versus risks, and benefits and risks versus alternative benefits and risks. The principle is at its worst in guiding us with risk versus risk situations. The precautionary principle advises us to avoid both risks—but how do both take action and inaction at the same time? Or as Michael Crichton said, “The precautionary principle properly applied forbids the precautionary principle. It is self-contradictory.”

Ronald L. Doering has written a pithy essay, “The Precautionary Principle Is Not The Answer,” that uses excellent examples to illustrate the fundamental flaw with the using the precautionary principle as an approach to deal with risk versus risk:

If the hazard of DDT, for example, were a possible threat to the environment, then the application of the precautionary principle would be to ban the product until the science is clearer. If the hazard is malaria causing mosquitoes and the million persons killed (and the 300 million made seriously ill) by malaria each year then wouldn’t the principle support taking action to continue to use the product until the science is more certain? A principle that is this malleable cannot be a reliable guide to decision making, but it is still often used as a justification for a decision taken for other reasons.

Or consider the fortification of enriched flour with folic acid. The risk of neural tube defects (major birth defects of the brain and spine, such as spina bifida) can be reduced by 50-70 percent if women receive folic acid supplementation starting three months before becoming pregnant. An estimated 1,000 more babies are born healthy each year because of mandatory fortification of foods with folic acid in the US.
On the other hand, there are unknown risks of folate fortification for the majority of consumers who receive no benefit from increased folate. A recent study showed there might be a link between high intakes of folic acid and possible increased risk for colon cancer.
The precautionary principle supports mandatory fortification with folate. Rather than take the risk of inaction while the science is uncertain about the risks of fortification, it is better to be safe and prevent a thousand newborns a year from major birth defects. Accordingly, the US in 1994 and Canada in 1998 mandated fortification of certain flours and breads. “Applying the same principle, Britain and Ireland declined to require mandatory fortification.”

FTC's Revised Guides Governing Endorsements, Testimonials

2009-10-10T13:11:00.000-04:00

The Federal Trade Commission (FTC) revised its guidance to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act. Changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising address endorsements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. Advertisers no longer can consider a disclaimer, such as “results not typical,” to be a safe harbor.

More information is available here. The text of the Federal Register Notice is here.

GMA's 2010 Food Claims and Litigation Conference - Feb. 23-25 - Austin, TX

2009-10-10T13:10:00.000-04:00

The Grocery Manufacturers Association's 2010 Food Claims and Litigation Conference is scheduled to take place February 23-25, and will be held at Barton Creek in Austin, Texas. Nationally recognized authorities from the food, legal, and scientific communities will present up-to-the-minute information on:

-Recent Developments in Product Liability

-Emerging Trends in Foodborne Illness Litigation

-Micro-Contaminants in Food: Emerging Legislative, Regulatory and Litigation Trends

-A Thirty-Year Retrospective on Trial Sciences

-Food Allergens: Understanding the Science and Avoiding the Pitfalls

-Mass Tort 911: The Company's Been Sued! Now What?

-What Every Food Industry Defense Lawyer Needs to Know About Bankruptcy

-Recent Preemption Rulings May Be Opening the Floodgates of State Law Consumer Fraud in Labeling Class Litigation

-The Recall Playbook: Offense and Defense

-Flavoring Litigation: Current Status and Latest Regulations And Their Effect on Future Litigation

-Trends in Global Food Litigation: Class Actions and Collective Redress

More information is available here.

It is Time for the Food Safety Enhancement Act

2009-10-06T09:24:00.000-04:00

H.R. 2749 passed in the House of Representatives. Now is the time for the Senate to vote.

Bill Marler predicted that food safety legislation would pass Congress by Thanksgiving and be signed by the President before Christmas. Predicting the movement of Congress is difficult. Sometimes only a shocking event can prod Congress to action. Tainted cookie dough may have been the last straw for the House passage of H.R. 2749.

Senators, what are you waiting for?

The Congressional Research Service (CRS) a nonpartisan arm of the Library of Congress prepared the following summary of H.R. 2749:

As of 6/8/2009--Introduced. Food Safety Enhancement Act of 2009 -

· Amends the Federal Food, Drug, and Cosmetic Act to set forth provisions governing food safety.

· Requires each food facility to: (1) conduct a hazard analysis; (2) implement preventive controls; and (3) implement a food safety plan.

· Requires the Secretary of Health and Human Services to: (1) issue science-based performance standards to minimize the hazards from foodborne contaminants; (2) establish science-based standards for raw agricultural commodities; (3) inspect facilities at a frequency determined pursuant to a risk-based schedule; (4) establish a food tracing system; (5) assess fees relating to food facility reinspection and food recall; and (6) establish a program for accreditation of laboratories that perform analytical testing of food for import or export.

· Authorizes the Secretary to: (1) order an immediate cessation of distribution, or a recall, of food; (2) establish an importer verification program; and (3) quarantine food in any geographic area within the United States.

· Defines the term "color additive" to include carbon monoxide that may affect the color of fresh meat, poultry products, or seafood.

· Requires country of origin labeling on food and annual registration of importers.

· Provides for unique identifiers for food facilities and food importers.

· Deems a food to be adulterated if an inspection is delayed or refused.

· Requires the Secretary to establish a corps of inspectors dedicated to inspections of foreign food facilities.

· Sets forth provisions governing the reorganization of Food and Drug Administration (FDA) field laboratories and district offices.

· Gives the Commissioner of Food and Drugs subpoena authority with respect to a food proceeding.

· Establishes whistleblower protections.

For further thoughts:

Bill Marler’s summary
New York Times Editorial, Vote for Safer Food
Hearings of the Subcommittee on Health

Senators and Congress Members, It is Long Past Time

2009-10-02T15:01:00.000-04:00

Below is the story of Abby and the horror she and her family experienced. Never forget the human face of foodborne illness. The video is courtesy of Bill Marler.

Dannon Settles False Ad Suit for $35 Million

2009-09-29T10:09:00.002-04:00

Noreen O'Leary reports that the law firm, Coughlin, Stoia, Geller, Rudman & Robbins, secured a $35 million settlement with Dannon over allegedly misleading ads and labeling of Activia and DanActive yogurt products. Under the stipulation of settlement, Dannon also agreed to change the way it markets and labels these products.

Now CSGR&R is pursuing a similar complaint against General Mills and its Yoplait Yo-Plus yogurt. The complaint against Yo-Plus alleges, "General Mills has no support for these claims, even though it states that it does, going so far as to claim it has clinical proof. General Mills' representations are false, misleading and reasonably likely to deceive the public."

A rep for General Mills, which began to market Yo-Plus in August 2007, said: "As a standing practice, we don't comment on pending litigation."

Noreen O’Leary also wrote, “Junk Science: 'Functional' foods promise good health -- but can they deliver?"

That Model of Poor Legal Drafting

2009-09-29T10:05:00.000-04:00

My morning distraction was reading the Hatch-Waxman 25^th Anniversary Trivia by Kurt Karst. My favorite part is the exchange between Judge Roger W. Titus, U.S. District Court for the District of Maryland, and Gerald C. Kell from the Department of Justice (December 21, 2006) in Biovail Corporation. v. FDA:

THE COURT: [After asking detailed questions about the Federal Food, Drug, and Cosmetic Act.] All right. There’s a special place in Hell where they torture people who write things like this. For 14 years I was on the Rules Committee of Maryland’s Court of Appeals that didn’t have as many subsections as this, so I would flunk the person who gave me this as a draft rule. I would say this is 50 rules.

Anyway, I wanted to wander into the right place of this endless section. When I first went to Westlaw and said, just give me section 355, it had to tell me it was going to be 85 pages. I said, no, no, no, no. Let’s try (j), and I get this huge thing here.

ATTORNEY: Well I hope that our brief lays out the precise subsections, Your Honor. I believe it does. But that is the sum of my argument, unless the court has any further questions.

THE COURT: No. You’ve been very helpful. I’m glad to have somebody here who knows what they’re talking about.

ATTORNEY: So am I, Your Honor. It’s just not me. Thank you.

THE COURT: Thank you.

To protect the public and to put a trial lawyer out of business

2009-09-22T20:43:00.000-04:00

A clever blog post by Bill Marler, "New Food Safety Legislation is needed - to protect the public and to put a trial lawyer out of business."

USDA Reopens Comments on Use of "Natural"

2009-09-17T10:16:00.001-04:00

The U.S. Dept. of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) has issued an Advance Notice of Proposed Rulemaking (ANPRM) to seek additional comments from the public on the conditions under which FSIS should permit the claim “natural” in the labeling of meat and poultry products. After considering the more than 12,000 comments on “natural” submitted in response to a Federal Register notice that the Agency issued on Dec. 5, 2006, and the comments presented at a public meeting held by the FSIS on Dec. 12, 2006, FSIS has decided to solicit additional public input.

FSIS is soliciting further comments on numerous issues. More information is available in 74 Federal Register 46951-46957 (Sept. 14, 2009). Comments are due by Nov. 13, 2009.

Additional reading: Ricardo Carvajal, FSIS Has Second Thoughts On Issuing a Proposed Rule to Define “Natural”.

Fish Detective Busts Restaurant Switcharoos

2009-09-14T14:35:00.002-04:00

The NPR Health Blog’s Scott Hensley has an interesting short piece concerning economic adulteration. Restaurants sometimes substitute cheaper fish for more expensive species, like grouper and red snapper. You can read the blog post here. Particularly interesting are the precocious New York high school students who used genetic testing to detect adulteration in the Big Apple’s restaurants and markets. Half the restaurants and six of ten grocery stores had mislabeled fish.

Hungry for Change

2009-09-13T21:22:00.002-04:00

Kristin Choo, wrote a nice article, “Hungry for Change: The feds consider a steady diet of stronger regulation to help fix the U.S. food safety network, for the September 2009 Issue of ABA Journal. She did a fine job summarizing a complex subject. You can read the article here.

FDA USDA Letter to the Smart Choices Program

2009-09-02T15:12:00.002-04:00

Advising the Smart Choice program that the agencies will be scrutinizing their front-of-the-pack nutrition label, the August 19 letter noted that consumer research indicates people are less likely to check the Nutrition Facts label on the back or side panel of foods with front-of-pack labeling. Therefore, “it is essential that both the criteria and symbols used in front of package and shelf-labeling systems help consumers make healthy food choices.”

These labels and symbols have proliferated in recent years. FDA and USDA noted that they will, “monitor and evaluate the products as they appear and their effect on consumers' food choices and perceptions.FDA and FSIS would be concerned if any FOP labeling systems used criteria that were not stringent enough to protect consumers against misleading claims; were inconsistent with the Dietary Guidelines for Americans; or had the effect of encouraging consumers to choose highly processed foods and refined grains instead of fruits, vegetables, and whole grains.”

FDA announces comment period on Internet survey on barriers to food label use

2009-08-26T21:35:00.002-04:00

In 74 Fed. Reg. 42676 (Aug. 24, 2009), the Food and Drug Administration (FDA) has announced an opportunity for public comment on a proposed voluntary Internet survey to assess barriers to food label use by consumers. Analyses or previous surveys have shown a sharp decline in food label use between 1994 and 2002, especially among consumers younger than 35 years old. The purpose of this survey is to learn the reasons for this decline in label usage. “The study goals are to: (1) identify attitudes and beliefs among consumers toward health, diet and label usage; (2) determine relationships between those attitudes and beliefs, as well as demographics, with food label use and non-use; and (3) evaluate the relative importance of these attitudes between consumers of various age groups to determine whether barriers to label use differ between younger consumers and older consumers.” Comments on the proposed information collection should be submitted by October 23, 2009.

Don't Eat That! Legal Issues in Food Safety

2009-08-24T14:14:00.003-04:00

On Wednesday, September 16, 2009, a 60-Minute ABA Teleconference will held from 1:00 to 2:00 PM (eastern time), “Don't Eat That! Legal Issues in Food Safety.” The program description reads:

It seems that hardly a month goes by without a story about American food shoppers falling prey to another nasty pathogen lurking in the local supermarket. Several well-publicized outbreaks of food-related illness have created a rare political alignment. Angry consumers and a food industry haunted by the double specter of bad publicity and lawsuits both appear ready to embrace actions by the federal government to make the U.S. food supply safer, and the federal government has begun to take some of those steps.

In March, President Barack Obama announced the formation of a Food Safety Working Group to develop proposals for upgrading federal food safety laws and improving coordination among at least a dozen federal entities that share responsibility for the safety of the nation’s food supply. Some of the working group’s recommendations already are being put into effect.

Meanwhile, legislation has been introduced in Congress that would dramatically increase the oversight power of the Food and Drug Administration over much of the food sold in the United States, including imports. It appears certain that the legal framework for regulating food safety in the United States is going to change, and lawyers—especially those who represent companies in the food industry—are going to have to hustle to keep up.

What sorts of changes are likely and how effective they will be is currently being debated. While some see a consensus around the need for sweeping reform, others are concerned that proposals in the works are over-broad and will be detrimental to organic farmers and small producers among others.

Join our distinguished group of experts as they discuss the current situation of food safety law changes.

The Panelists are:

Neal D. Fortin, Director, Institute for Food Laws and Regulation, Michigan State University, East Lansing, MI

James T. O'Reilly, Professor, University of Cincinnati, Chair, FDA Committee, American Bar Association Section of Administrative Law and Regulatory Practice, Cincinnati, OH

Stuart M. Pape, Managing Partner, Patton Boggs LLP, Washington, DC

FDA Guidance on Labeling of Certain Beer Products

2009-08-19T10:54:00.002-04:00

The Food and Drug Administration (FDA) issued draft guidance on the labeling of non-malt This blog discussed some of the issues involved in When Beer is not Beer. Beer products beers that contain substitutes for malted barley—such as sorghum, rice or wheat—or are made without hops, fall under FDA rather than the Alcohol and Tobacco Tax and Trade Bureau (TTB). The guidance advises industry on how to label beers that are subject to the FDA's labeling requirements under the Federal Food, Drug and Cosmetic Act and the Fair Packaging and Labeling Act.

FDA's new draft guidance, "Labeling of Certain Beers Subject to the Labeling Jurisdiction of the Food and Drug Administration," specifies the mandatory information required on the labels of these non-malt beers. Manufacturers of non-malt beers are expected to comply with the FDA's labeling requirements by Jan. 1, 2012. The Federal Register notice (74 FR 41438) can be viewed on the GPO Access web site and the guidance can be viewed on the FDA website.

Weasel Words (AKA Disclaimer)

2009-07-20T11:46:00.002-04:00

One humorous disclaimer I saw on a legal blog:

“this is not legal advice, this is a general information blog post on the internet. (And if it's on the internet, it's gotta be true, right? Uh ... no.) If you haven't paid me a retainer, you are not (yet) my client and should not rely on any of this information to make any decisions. The law is complicated. The facts even more so. If I could have learned the law by reading blogs, I'd ask for money back from those three plus years of hell I paid for in law school.”

You can catch F. Bennett Callicoat’s blog and disclaimers at the Tulsa Bankruptcy and Consumer Law blog.

Raw Milk Legal Implications

2009-07-17T16:27:00.009-04:00

Bill Marler recently gave a short overview of the legal implications of raw milk. A copy of slides is available here as well additional materials on the topic. Hat tip to Bill Marler for this service.

How to Prepare for an FDA Inspection and Recall

2009-07-17T16:27:00.008-04:00

Jim Prevor, the Perishable Pundit, recently posted a valuable article on dealing with recalls and FDA. No company wants to be involved in a recall so prevention is the first strategy, but every company should think through how they would perform in a recall. In particular, how would the firm handle the intense regulatory and media scrutiny. Smart companies will be prepared with a contingency plan. Jim’s article provides a nice sketch of the basic steps involved in putting together such a plan. The full article is available here.

FDA Serious About Food Allergen GMPs

2009-07-17T16:27:00.007-04:00

Ricardo Carvajal calls our attention to FDA’s seriousness about food allergen GMPs, “the government is asking a federal district court to enjoin certain manufacturers of protein powder mixes and dietary supplements from further marketing of products alleged to be adulterated under FDC Act section 402(a)(4) due to the manufacturers’ failure to minimize cross-contact with a major food allergen. The complaint makes clear that FDA interprets section 402(a)(4) and 21 C.F.R. Part 110 to require manufacturers to take “all reasonable precautions. . . to ensure that production procedures do not contribute to contamination from any source, including food allergens.”

Hat tip to Ricardo Carvajal for another great blog.