The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has published a final rule establishing a new voluntary cooperative program that will permit state-inspected establishments with fewer than 25 employees “to ship meat and poultry products in interstate commerce.” Under the program, which will be administered by state inspectors, selected establishments must comply with all standards under the Federal Meat Inspection Act and Poultry Products Inspection Act to receive the official USDA mark of inspection necessary for interstate commerce. Effective July 1, 2011, the final rule considers approximately 90 separate comments submitted in response to the September 2009 proposed version. “Allowing these state-inspected establishments to ship their products across state lines has the potential to expand rural development and jobs, increase local tax bases, strengthen rural communities, and ensure that food is safe for consumers,” said FSIS Administrator Al Almanza in an April 19, 2011, press release.…

The U.S. Department of Agriculture’s (UDSA’s) Agricultural Marketing Service (AMS) has issued a proposed rule that would establish a voluntary National Leafy Green Marketing Agreement (NLGMA) “to regulate the handling of leafy green vegetables, including but limited to lettuce, spinach, and cabbage.” According to AMS, the proposed agreement would “authorize the development and implementation of production and handling regulations (audit metrics)” to reflect USDA’s Good Handling Practices, as well as the Food and Drug Administration’s Good Agricultural Practices and Good Manufacturing Practices. AMS has requested comments and written exceptions to the proposed rule by July 28, 2011. The voluntary NLGMA would cover both domestic and imported leafy green vegetables, with signatories agreeing to only handle products that meet program requirements. It is evidently modeled after a similar marketing agreement pioneered by California growers, who in 2006 faced a widespread E. coli outbreak linked to fresh spinach, and also takes into account…

The U.S. Government Accountability Office (GAO) has issued a report recommending how the U.S. Department of Agriculture (USDA) could improve the safety of school meals purchased through its commodities program. The report recommends that USDA instruct the commodity program to (i) “develop a systematic and transparent process to determine whether foods offered by the program require more-stringent specifications related to microbial contamination, including steps to: identify pathogens, strains of pathogens, or other foods that merit more stringent-specifications; document the scientific basis used to develop the specifications; and review the specifications on a periodic basis”; and (ii) “share information with school districts in a more explicit form regarding the foods covered by more-stringent purchasing specifications related to microbial contamination to enable districts to make more informed choices.”

A Fred Hutchinson Cancer Research Center study has reportedly found that men with the highest blood percentages of the omega-3 fatty acid known as docosahexaenoic acid (DHA) “have two-and-a-half-times the risk of developing aggressive, high-grade prostate cancer compared to men with the lowest DHA levels,” according to an April 25, 2011, press release. Theodore Brasky, “Serum Phospholipid Fatty Acids and Prostate Cancer Risk: Results From the Prostate Cancer Prevention Trial,” American Journal of Epidemiology, April 2011. Based on data from 3,400 men enrolled in the Prostate Cancer Prevention Trial, the study has also claimed that, contrary to expectations, “men with the highest blood ratios of trans-fatty acids . . . had a 50 percent reduction in the risk of high-grade prostate cancer.” The findings evidently surprised researchers, who expected that the anti-inflammatory properties of omega-3 fatty acids would reduce prostate cancer risk, while trans-fatty acids and the omega-6 fatty acids commonly…

A Minnesota appeals court has reportedly decided a dispute over workers’ compensation deductibles in favor of a pork processing company’s insurance carrier in litigation arising from injuries to employees exposed to the mist from pig brain tissue. Quality Pork Processors Inc. is apparently considering whether to appeal the ruling to the state supreme court. According to counsel for the company, the matter involves a contractual dispute and has no effect on benefit payments to those infected while working on or near the line called the “head table.” They apparently used compressed air to remove pigs’ brains and were diagnosed with an unusual neurological disease that causes symptoms including weakness, fatigue, confusion, and seizures. The pork processor contends that the contract language addressing how deductibles were calculated is ambiguous and disagreed that each accident should be decided separately. See The Austin Daily Herald, April 14, 2011.

A Georgia-based poultry farm has reportedly appealed a federal court ruling dismissing libel, slander and product disparagement claims against CBS, which apparently aired a segment on its 60 Minutes program in 2003 about alleged terrorist money laundering involving dead chickens. Mar-Jac Poultry, Inc. v. Katz, No. 03-2422 (D.D.C., dismissal entered March 30, 2011). The D.C. Circuit Court of Appeals has apparently not yet indicated whether it will hear the appeal. The segment focused on a purported “terrorist hunter” whose actions in ferreting out terrorist activity in the United States apparently led the U.S. government to raid a poultry farm after she claimed that Saudis had purchased it. According to Rita Katz, who appeared on the program in disguise, chicken was the best cover for money laundering because “chicken is one of the things that no one really can track it down. If you say in one year that you lost 10…

Contending that Diamond Foods, Inc. has defended its decision to place “heart-healthy” claims on its packaged walnuts on the advice of counsel, and removed them after a Food and Drug Administration (FDA) warning, also on the advice of counsel, the named plaintiff in a putative class action alleging consumer-fraud against the company is seeking the production of attorney-client communications. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed April 26, 2011). Details about a court order denying the defendant’s motion to dismiss appear in Issue 363 of this Update. The plaintiff points to instances in responses to interrogatories and deposition questions where the company defended its decision to link the omega-3 fatty acids in walnuts to heart health as a good faith bona fide error and indicated that decisions about the labeling were made with legal counsel’s approval. Yet, the company has refused to produce any attorney-client communications on…

A federal grand jury has indicted a husband and wife who own a grain storage company in northwestern Missouri, alleging that they conspired to victimize more than 100 farmers at an estimated loss exceeding $3.1 million by selling grain the farmers owned without paying them and by commingling and embezzling the farmers’ money. United States v. Froman, No. 11-06005 (W.D. Mo., filed April 21, 2011). The indictment alleges that “grain (primarily corn and soybeans), which was owned by various farmers who contracted with Gallatin Grain, was sold by the Fromans without the farmers’ permission and the proceeds of the sale were wrongfully withheld by the Fromans.” Counts of conspiracy, mail fraud and bank fraud have been brought against both Daniel and Pauline Froman. Daniel has also been charged with one count of wire fraud and one count of interstate transportation of stolen property. Prison terms of up to 30 years…

A federal court has reportedly approved a $760 million government settlement with Native American farmers and ranchers who claimed that the U.S. Department of Agriculture (USDA) discriminated against them by denying them equal access to credit through the agency’s Farm Loan Program. Keepseagle v. Vilsack, No. 99-03119 (D.D.C., settlement approved April 28, 2011). A final dispute over attorney’s fees was resolve in class counsel’s favor; they will receive 8 percent of the settlement, or $60.8 million. The Department of Justice apparently urged the court to halve that amount. According to a news source, the settlement funds do not require legislative action to be awarded; farmers must file their claims by December 2011. President Barack Obama (D) said, “Today’s approval of the settlement will help strengthen our nation to nation relationship with Indian Country and reinforce the idea that all citizens have a right to be treated fairly by their government.” Under…

A federal court in California recently granted a motion for final approval of a class action settlement in litigation involving allegations that Kellogg Co. fraudulently claimed that its Frosted Mini-Wheats® cereal “was clinically shown to improve children’s attentiveness by nearly 20%.” Dennis v. Kellogg Co., No. 09-01786 (S.D. Cal., decided April 5, 2011). Additional information about the case appears in Issue 368 of this Update. Two class members objected to the settlement, challenging the cy pres relief, which will provide money remaining from the $2.75 million settlement fund to “appropriate charities,” as well as donated food items valued at $5.5 million to charities feeding the indigent. According to the objectors, class counsel owes a fiduciary duty to the class and “[s]omewhere along the way, Class Counsel lost sight of that duty and became an advocate for some unnamed third party charity.” The objectors also argued that the “food donation allows…

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