Posts By Shook, Hardy & Bacon L.L.P.

Discussing former Food and Drug Administration Commissioner David Kessler’s book about overeating, Washington Post staff writer Lyndsey Layton opens with an anecdote about Kessler climbing into dumpsters behind fast-food restaurants to find the ingredient lists for some of the foods they offer. He apparently found high-calorie, fat, sugar, and salt content in many of his favorite foods and contends they are designed in a way to spur the diner to eat faster and eat more. Kessler reports that he was a yo-yo dieter whose weight has ranged from 160 to 230 pounds and back again numerous times. He also claims that he was able to stabilize his weight only by making a shift in the way he thought about food. Layton quotes Kessler as saying, “We did this with cigarettes. It used to be sexy and glamorous but now people look at it and say, ‘That’s not my friend, that’s…

New York University professor and public health nutrition author Marion Nestle wonders “Is Stevia really ‘natural?’” in her April 29, 2009, blog Food Politics. The sweetener, she writes, is isolated from the leaves of the stevia plant and therefore the Food and Drug Administration (FDA) lets companies assert that it is natural. “We can debate whether a chemical sweetener isolated from Stevia leaves is really ‘natural’ but here’s another problem: Stevia doesn’t taste like sugar,” Nestle writes. “Companies have to fuss with it to cover up its off taste. And, they must do so ‘without detracting from the perceived benefits of its natural status.’ Flavor companies are working like mad to find substances that block Stevia’s bitter taste, mask its off flavors, and extend its sweetness, while staying within the scope of what the FDA allows as ‘natural.’” See foodpolitics.com, April 29, 2009.

“Like other villainous ingredients – trans fat and artificial food dye come to mind – high-fructose corn syrup [HFCS] is accused of being at once unhealthy, unnatural and unappetizing,” writes Slate contributor Daniel Engber in this article exploring these “three cardinal claims of food politics” against HFCS, which has suffered a consumer backlash “exacerbated by the general view that it’s less ‘natural’ than other forms of sugar.” According to the article, critics of HFCS have implied that the fructose-based sweetener is more harmful than other added sugars refined from cane sugar or beet sugar. This theory apparently spawned several lawsuits contesting the “metaphysical status of corn syrup” in products labeled “all natural.” The legal disputes have reportedly led the Food and Drug Administration to issue guidance declaring that HFCS can be considered a “natural” ingredient if it has not come into physical contact with glutaraldehyde, a synthetic fixing agent used to…

An independent special litigation committee (SLC) recently filed a comprehensive report detailing the actions of Chiquita Brands International executives, directors and counsel that led to the $25 million settlement of a Justice Department investigation into the company’s illegal payments to Colombian terrorist groups. The SLC recommends that shareholder litigation stemming from the payments, settlement and purported “fire sale” of the company’s Colombian banana business be dismissed because the SLC found no evidence that any defendant acted in bad faith. The SLC also found that the litigation will inflict “substantial further damage on the Company,” the costs outweigh any potential recovery, “an event of this nature is unlikely to recur,” and the shareholder litigation “would serve to further divert management from its core mission.” The report explains that payments were made to both right-wing and left-wing groups in Colombia to protect the company’s workers and property. Until the recipients were declared…

The U.S. Department of Agriculture (USDA) has announced the first wide-scale survey of organic farming to ascertain how the growth of such practices is changing the face of American agriculture. The Organic Production Survey will examine organic farming that took place during the 2008 calendar year, including production and marketing practices, income and expenses. “This is an opportunity for organic producers to share their voices and help ensure the continued growth and sustainability of organic farming in the United States,” USDA Secretary Tom Vilsack said. Survey results will apparently help shape future farm policy, funding allocations, availability of goods and services, community development, and other key issues. USDA’s National Agricultural Statistics Service (NASS) will mail the survey in early May 2009 to all known U.S. organic producers, who are asked to respond by June 17, 2009. Participants can also complete the survey online. NASS will publish results in winter 2009.…

The Occupational Safety and Health Administration (OSHA) will convene a rulemaking panel May 5, 2009, to study the effects that a proposed rule on occupational exposure to diacetyl would have on small businesses. The Small Business Regulatory Enforcement Fairness Act (SBREFA) panel allows small businesses that may be affected by the proposal to provide comments before an agency publishes the rule in the Federal Register. The panel must submit its final report within 60 days after convening. Diacetyl is a chemical used in butter flavoring for popcorn and confectionery products that has allegedly been linked to bronchiolitis obliterans, a lung disease diagnosed in a number of workers at U.S. popcorn-manufacturing plants. The topic was covered in issue 296 of this Update. See OSHA News Release, April 29, 2009.

The Food and Drug Administration (FDA) has prepared a summary of the comments and information provided during a 2007 hearing on the use of symbols to communicate nutrition information. Posted to the hearing docket on April 28, 2009, the document notes that significant gaps remain in research about consumer perception, understanding and use of symbols that convey information about nutrition claims on food products. According to the FDA, numerous nutrition symbol systems already exist, but because they “differ greatly,” “the ability of consumers to use these symbols to make nutritional comparisons between products or to determine how a food fits into a diet is uncertain.” FDA commissioned a focus group study and “is currently analyzing qualitative information collected from the study to explore varieties and ranges of consumers’ understanding of and reactions to a selected sample of existing and alternative nutrition symbols.” The agency also apparently needs more information about…

According to the Environment Group of the Pew Charitable Trusts, salmon farming companies producing fish for export to the United States from Canada, Norway and Scotland are using pesticides and antibiotics that do not appear on the FDA/CVM Approved Drugs in Aquaculture list. In an April 23, 2009, letter to the acting Food and Drug Administration (FDA) commissioner, the Pew Environment Group notes how FDA inspections have successfully addressed the use of banned drugs in Chile’s salmon farming facilities and calls for the agency to expand its focus to imports from other countries. Contending that these drugs pose threats to human health and the environment, the group cites detailed evidence suggesting that other countries are using unapproved drugs in salmon aquaculture and asks the FDA (i) whether it intends to require all companies exporting salmon to the United States to adhere to U.S. regulations; (ii) how it reconciles its requirement…

The World Health Organization (WHO) this week raised its influenza alert to the second-highest level as an outbreak of H1N1 virus–also known as swine flu–continues to surface across the globe. First identified in Mexico, H1N1 has spread to the United States and several other countries, including Canada, Germany, Israel, New Zealand, Spain, and the United Kingdom. The U.S. Centers for Disease Control and Prevention (CDC) have thus far confirmed 109 cases in 11 states, while Mexican officials have reported at least 2,500 suspected illnesses and 170 deaths. “All countries should immediately activate their pandemic preparedness plans,” stated WHO Director-General Margaret Chan. “At this stage, effective and essential measures include heightened surveillance, early detection and treatment of cases, and infection control in all health facilities.” See GMA Press Release and FoodNavigator-USA. com, April 27, 2009; WHO Press Release, MSNBC.com and The London Times, April 29, 2009; The New York Times, May 1,…

A long-term study by the Mount Sinai Medical Center for Children’s Environmental Health and Disease Prevention Research has reportedly suggested a link between childhood obesity and endocrine disruptors, including phthalates and bisphenol A. Part of a study titled “Growing Up Healthy in East Harlem,” the project followed 520 children ages 6 to 8 for five years in an effort to determine “how the area where the children lived affected diet, physical activity and risk for obesity.” Researchers apparently found that study participants had “higher levels in their urine of three endocrine disruptors – 2,5 DCP, MBP and MEHHP – than a national sample of children the same age.” According to the New York City Department of Health and Mental Hygiene, approximately 43 percent of East Harlem kindergarteners were also overweight or obese for their age in 2003. “The heaviest girls have the highest levels of phthalates metabolites in their urine,”…

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