The U.S. Court of Federal Claims has ruled that the U.S. Food and Drug Administration (FDA) is not required to compensate tomato growers for a regulatory taking after incorrectly warning the public in 2008 that a Salmonella outbreak was linked to tomatoes. Dimare Fresh Inc. v. U.S., No. 13-519 (Fed. Cl., order entered September 18, 2014). The growers argued that FDA had “appropriated a benefit” through the seizure of tomatoes, but “[a] regulatory takings claim is not plausible and cannot proceed when the government action at issue has no legal effect on the plaintiff’s property interest,” the court said. “Advisory pronouncements, even those with significant financial impact on the marketplace, are not enough to effect a taking of property under the Fifth Amendment.” The growers were attributing independent consumer behavior to FDA, the court found, and the argument that consumer advisories alone constituted takings had no support in case law.
Posts By Shook, Hardy & Bacon L.L.P.
A federal court in Maryland has allowed the personal representative of the estate of a man who died in 2011 during a nationwide Listeria outbreak linked to a Colorado cantaloupe farm to sue the company responsible for auditing the cantaloupe producer’s processing facilities, finding that it owed him a duty of care. Wells Lloyd v. Frontera Produce, Ltd., No. 13-2232 (D. Md., order entered September 24, 2014). An Oklahoma court refused to allow claims against the auditor in December 2013, finding that the plaintiff, who was sickened during the Listeria outbreak, could not show that the auditor owed him a duty under Oklahoma law. Details about that ruling appear in Issue 509 of this Update. In contrast, the Maryland court found that the food safety auditor owed a duty to the decedent, because its allegedly negligent audit of the facility—finding that it complied with applicable standards of care for food processing—met…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints against a website advertising Brewmeister Ltd.’s “Snake Venom” beer as “THE WORLD’S STRONGEST BEER.” In response to the first complaint, which disputed the beer’s stated alcohol by volume (ABV),the agency questioned whether the independent analysis that determined Snake Venom’s ABV differed from the process used for standard beer. Noting that the beer’s fermented alcohol content was concentrated via freeze distillation and possibly augmented with ethyl alcohol, ASA found the advertisement misleading because “consumers would interpret the claim ‘Snake venom 67.5%’ to mean the product had an alcohol volume of 67.5%, as per the standard ABV measure, without having been through any other additional processes to standard beer.” ASA also upheld its own complaint challenging “whether the ad implied the drink may be preferred because of its alcohol or intoxicating effect, and whether the factual information about the strength of the…
The European Commission (EC) and European Food Safety Authority (EFSA) have launched public consultations seeking comments on endocrine active substances and draft genetically modified (GM) plant guidance. In accordance with regulations governing biocides and plant protection products, the commission has asked the public “to help define criteria for endocrine disruptors” as part of its effort to identify and regulate substances that interact with human and animal hormone systems. “Endocrine disrupting chemicals have triggered a substantial debate: there are strong signals from science, there is increasing public and political concern and awareness, while some stakeholders still have doubts,” said European Commissioner for the Environment Janez Potočnik. “Europe is watching—we need these criteria to improve protection and give industry the certainty it requires. Citizens and stakeholders can help us make an informed decision.” See EC Press Release, September 29, 2014. In addition, EFSA’s Panel on Genetically Modified Organisms has requested views on…
The National Advertising Division (NAD) has referred Talking Rain Beverage Co. to the Federal Trade Commission (FTC) after the company failed to comply with a previous NAD determination finding that certain aspects of its advertising could be misleading. After a July 2014 NAD investigation, Talking Rain’s advertising for Sparkling ICE—which it presents as “the adventurous side of water,” “the vibrant side of water” and “the bold side of water”—was found to be misleading if the product was not shown because consumers may believe that the product is water without additional flavoring. NAD found that Talking Rain’s claim “Naturally flavored sparkling mountain spring water” was not misleading when displayed with the product, which is brightly colored and bears a list of ingredients indicating the inclusion of flavoring agents. In July, Talking Rain said it disagreed with the conclusion but would take NAD’s recommendation into consideration, but following several months of inaction…
To ease producer burdens under the Food Safety Modernization Act (FSMA), the U.S. Food and Drug Administration (FDA) has revised four proposed rules related to produce safety; preventive controls for human food and animal food; and the foreign supplier verification program. After receiving feedback from consumers and industry stakeholders, the agency has (i) updated water quality testing provisions; (ii) exempted farms with less than $25,000 in sales from produce-safety rules; (iii) addressed the use of spent grains in animal food by clarifying that brewers and distillers subject to the human-food rules do not need to comply with all animal-food rules; and (iv) granted importers more flexibility under the proposed foreign-supplier verification program “to determine appropriate supplier verification measures based on risk and previous experience with their suppliers.” FDA has requested comments on the proposed changes by December 15, 2014. “Ensuring a safe and high-quality food supply is one of the FDA’s…
The U.S. Department of Agriculture’s National Organic Program (NOP) has issued a final rule amending the National List of Allowed and Prohibited Substances (National List), which governs the use of synthetic and nonsynthetic substances in organic crop production and processing. Effective October 30, 2014, the final rule adds biodegradable biobased mulch film to the National List and defines third-party standards for compostability, biodegradability and biobased content. The agency also removed nonorganic hops (Humulus lupulus) and unmodified rich starch from the National List, as their use exemptions have expired, and rejected recommendations to include Citrus hystrix and curry leaves on the National List. See Federal Register, September 30, 2014. Issue 539
The Center for Science in the Public Interest (CSPI) has filed a citizen petition with the U.S. Department of Agriculture (USDA) seeking a declaration that four antibiotic-resistant (ABR) strains of Salmonella are adulterants under federal law. This is CSPI’s second petition on the matter and attempts to respond to data gaps identified by USDA’s Food Safety and Inspection Service (FSIS) when it denied the consumer advocacy organization’s 2011 petition in July 2014. Details about the denial appear in Issue 532 of this Update. CSPI bolsters the first petition with additional information on ABR Salmonella outbreaks, including numbers of individuals sickened and types of antibiotics to which the infections were resistant. CSPI also emphasizes that FSIS has already been declaring these pathogens adulterants on a case-by-case basis in issuing certain recalls, but its inconsistency in this regard, in CPSI’s view, is “putting consumers at risk.” While CSPI argues that its first petition…
An article examining food addiction in light of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) has concluded that the latest edition’s new criteria for substance use disorders (SUDs) “may be valuable for food addiction research, even if some of those symptoms may rarely be endorsed by participants exhibiting addiction-like eating.” Adrian Meule and Ashley Gearhardt, “Food Addiction in Light of the DSM-5,” Nutrients, September 2014. Claiming that further studies are needed to evaluate the new criteria’s relevance to food addiction, the article’s authors explain that DSM-5 now includes the following criteria for SUDs: (i) “failure to fulfill major role obligations at work, school, or home as a result of substance use”; (ii) “continued substance use despite social or interpersonal problems caused or exacerbated by substance use”; and (iii) “recurrent substance use in situations in which it is physically hazardous.” The manual has also defined a new symptom of “craving, or…
A review of recent research focused on food consumption and mood regulation has reported that complex biological factors engage both the peripheral and central nervous system “in a bi-directional manner linking food intake, mood, and obesity.” Minati Singh, “Mood, Food and Obesity,” Frontiers in Psychology, September 2014. Summarizing human and animal studies, the article addresses the following topics: (i) the relationship between stress, mood and food intake, (ii) the relationship between mood, food preference and obesity; (iii) “food reward, addiction and obesity”; (iv) “society and food addiction”; (v) the roles of ghrelin, serotonin, leptin, adiponectin, resistin, and insulin in regulating food, mood and obesity; and (vi) “epigenetics, mood and eating disorders.” “Many people find it hard to stop eating a particular food even though they are not hungry,” explains the article author. “Such behaviors activate the brain reward center and alter the brain structure… Through neurobiological data, presence of food…
