A Florida federal court has rejected a motion to dismiss in a case accusing Bodacious Foods of labeling its cookies as “all natural” despite containing sugar, canola oil, dextrose, corn starch, and citric acid, which the plaintiff alleges should preclude Bodacious from using the “natural” label. Dye v. Bodacious Food Co., No. 14-80627 (S.D. Fla., order entered September 9, 2014). Bodacious argued that the U.S. Food and Drug Administration (FDA) should have primary jurisdiction over the case, but the court disagreed, finding that FDA has declined to regulate the use of “natural” in food labeling. The cookie company also argued that its inclusion of all ingredients on the label was clear and not misleading, but the court found it “plausible that a consumer might rely on the ‘all natural’ representation without scrutinizing the ingredients or, alternatively, that a consumer might incorrectly believe that sugar, canola oil, dextrose, corn starch, and citric…
Posts By Shook, Hardy & Bacon L.L.P.
The Dutch National Institute for Public Health and the Environment (RIVM) has released the first part of its bisphenol A (BPA) report, which provides an overview of regulatory and scientific developments through March 2014. Slated for publication in 2015, the second part of the report will assess the European Food Safety Authority’s final opinion on the risks of BPA exposure for consumers; a Scientific Committee on Emerging and Newly Identified Health Risks assessment of patients exposed to BPA; and two advisory reports from the Dutch Health Council on prenatal BPA exposure and BPA analogues. In addition to summarizing what is known about BPA’s environmental impact, the current report addresses human BPA exposure via consumer products, food, medical devices, and inhalation during the manufacture of BPA-containing epoxy resins. Based on this overview, RIVM concludes that despite various studies associating BPA with adverse immune effects, obesity, diabetes, and prostate cancer, “[t]here is still…
The U.K. Advertising Standards Authority (ASA) has upheld complaints against a TV commercial claiming that Kellogg’s “Special K Multi Grain Porridge” contained “30% less fat than other porridges.” According to ASA, which received complaints from PepsiCo Inc. and 14 other competitors, Kellogg Marketing and Sales Co. (UK) Ltd. argued that the advertisement’s reduced-fat comparative claim complied with the Annex to EC Regulation 1924/2006 on Nutrition and Health Claims Made on Food. To this end, Kellogg provided ASA and Clearcast with the data and methods used to conduct product comparisons under this regulation. The company reportedly explained that all varieties of Special K porridges contained 5.5 percent fat or less, whereas the top 75 percent of porridge products on the market contained an average fat content of 7.84 percent. “Kellogg also pointed out than none of the products included in the comparison had a fat content of 5.5% or less,” noted…
The Department for Environment, Food and Rural Affairs (DEFRA) and Food Standards Agency on September 4, 2014, issued a final report evaluating U.K. food supply networks and containing recommendations for government action to address any weaknesses. The government commissioned the report from University of Belfast Professor Chris Elliott following a 2013 incident known as “Horsegate” in which various beef products were found to be adulterated with undeclared horse meat. In response to the report’s eight major recommendations, the government has vowed to establish a Food Crime Unit by the end of 2014. Supported by a number of state, local, federal, and international law enforcement agencies, the Unit will reportedly focus its initial efforts on gathering intelligence about the nature and risks of food fraud. Other actions the government reportedly plans to implement go from setting up a network of food analytical laboratories to using standardized testing methodologies and creating a…
The Food and Drug Administration (FDA) is reportedly taking measures to bolster intra-agency program processes based on a comprehensive review of the scientific capacity and management of the Chemical Safety Program across the Center for Food Safety and Applied Nutrition (CFSAN) and Center for Veterinary Medicine (CVM). FDA plans to address improvements in the principal categories of science, communication and collaboration, and training and expertise. Among other things, the agency intends to (i) update the agency’s Toxicological Principles for the Safety Assessment of Food Ingredients (Redbook); (ii) establish consistent methodologies for safety and risk assessments within and across CFSAN offices and between CFSAN and CVM; (iii) increase collaboration on emerging issues with other federal agencies; and (iv) create an experts database to help identify potential collaborators both inside and outside the agency. See FDA Constituent Update, August 28, 2014. Issue 537
The U.S. Department of Agriculture’s National Organic Program has announced a public meeting of the National Organic Standards Board (NOSB) on October 28-30, 2014, in Louisville, Kentucky. The meeting will include recommendations from the board’s six subcommittees on a wide range of topics, including “substances petitioned to the National List of Allowed and Prohibited Substances (National List), substances on the National List that require NOSB review before their 2015 and 2016 sunset dates, updates from working groups on technical issues, and amendments to guidance on organic policies.” In particular, the Handling Subcommittee intends “to take up the issue of whether to prohibit BPA [bisphenol A] in packaging material used for organic foods in light of mounting evidence that it may be harmful.” To this end, NOSB plans to prioritize research dedicated to finding “suitable alternatives for the linings of cans used for various organic products such as tomatoes, beans and…
The U.S. Department of Agriculture and Food and Drug Administration have scheduled an October 28, 2014, public meeting in Washington, D.C., to solicit comments about draft positions to be considered at the 36th Session of the Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU) of the Codex Alimentarius Commission in Bali, Indonesia, on November 24-28. Issues on the October 28 meeting agenda include a (i) discussion paper on biofortification, (ii) proposed draft revision of the Codex General Principles for the Addition of Essential Nutrients to Foods, (iii) proposed draft revision of the list of food additives, and (iv) a proposal to review the Codex Standard for Follow-Up Formula. See Federal Register, September 10, 2014. Issue 537
The U.S. Environmental Protection Agency (EPA) has published preliminary materials for the Integrated Risk Information System (IRIS) toxicological review of diisononyl phthalate (DINP), a plasticizer used in food-contact materials.Slated for discussion at the IRIS Bimonthly Public Science Meeting to be held October 29-30, 2014, in Arlington, Virginia, the preliminary materials include (i) “a planning and scoping summary,” (ii) “information on the approaches used to identify pertinent literature,” (iii) “results of the literature search,” (iv) “approaches for selection of studies for hazard identification,” (v) “presentation of critical studies in evidence tables and exposure-response arrays,” and (vi) “mechanistic information for DINP.” In addition to feedback on these general topics, EPA has specifically requested public comment and discussion on “DINP-induced liver effects, including spongiosis hepatis”; “the evidence for DINP-induced male reproductive toxicity; “the relevance of the xenograft and ex-vivo tissue studies”; the human relevance of animal studies associating mononuclear cell leukemia with DINP…
The Centers for Disease Control and Prevention (CDC) has published a September 2014 Vital Signs report claiming that nine in 10 U.S. children “eat more sodium than recommended.” Noting that children ages 6-18 years consume an average of 3,300 mg sodium per day, CDC estimates that 43 percent of children’s daily sodium intake “comes from just 10 common food types: pizza; bread and rolls; cold cuts and cured meats; sandwiches like cheeseburgers; snacks, such as chips; cheese; chicken patties, nuggets, and tenders; pasta mixed dishes, such as spaghetti with sauce; Mexican mixed dishes, such as burritos and tacos; and soup.” The agency is urging the federal government to apply new nutrition standards that aim to halve the sodium content of some foods served in schools by 2022. It also asks food manufacturers to replace sodium “with alternatives like spices, herbs, and vegetables,” and to gradually reduce the sodium content of…
A group of U.S. senators and a group of U.S. representatives, all Democrats, each sent an identical letter to Federal Trade Commission (FTC) Chair Edith Ramirez calling for a report on 2014 food and beverage marketing expenditures aimed at children. They found it “unacceptable” that FTC “is not actively working on projects focused on food marketing to children,” pointing out that data gathered during 2014 and compiled into a report could serve as a five-year follow-up to a similar 2012 report on 2009 data. “A follow up report would help policy makers, public health practitioners, industry representatives, and the public understand how food marketing directed at children and adolescents has changed over the last five years and provide a critical opportunity to evaluate the continued role of such marketing in regards to the health of our nation’s children.” The senators who signed the letter were Sens. Tom Harkin (D-Iowa), Richard Durbin…
