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

The Canadian Cattlemen’s Association and the Canadian Pork Council, representing some 100,000 producers, are reportedly calling on their government to bring legal challenges under the North American Free Trade Agreement and WTO rules to the new country-of-origin labeling (COOL) law that took effect in the United States on October 1, 2008. According to the beef and pork producers, the law has begun shutting their livestock out of U.S. markets, where domestic and foreign animals must now be segregated in feedlots and packing plants. Origination documentation and disease-free tags are also apparently adding to producer costs. The Canadian producers claim that some companies are refusing to import Canadian cattle altogether and others will slaughter them only on certain days, a situation that threatens to cost the Canadian producers some $800 million annually. In a letter to Canada’s prime minister, the Cattlemen’s president reportedly said, “Our preliminary estimate is that COOL is reducing…

The Office of U.S. Trade Representative has issued a request for comments about potential alternative products imported from the European Union (EU) that are under consideration for the imposition of increased duties. The action arises from an ongoing dispute with the EU over its refusal to allow imports of U.S. meat and meat products produced from animals treated with artificial growth hormones. According to the U.S. Trade Representative, “The [World Trade Organization] found over 10 years ago that the EU’s ban on U.S. beef was not supported by science and was thus inconsistent with WTO rules. When the EU failed to bring its measures into compliance with its WTO obligations, the United States imposed tariffs on certain imports from the EU, as authorized by the WTO. Since that time, we have been trying to resolve this dispute with the EU without changing the composition of tariffs. It is now time…

Cornell University researchers have reportedly developed a nanoscale application that could lead to rapid testing for bovine spongiform encephalopathy (BSE). The U.S. Department of Agriculture’s Cooperative State Research, Education and Extension Service (CSREES), which partly funded the project, recently highlighted the National Research Initiative (NRI) as a step toward improving the safety of the food supply. “A better method of prion detection is necessary to allay public fears, ensure the safety of the nation’s food supply, and enhance international trade,” stated a CSREES press release. The preliminary testing device is based on a nanotechnology device known as a resonator created by Harold Craighead and his colleagues at Cornell University in conjunction with Richard Montagna at Innovative Biotechnologies International, Inc. “When prions bind to the resonator’s silicon sensor, it changes the vibrational resonant frequency of the device,” according to CSREES. This sensor is able to detect prions in saline solution “at…

Researchers in Kansas and Missouri report that chronic medication use in children increased over a three-year period across all therapies studied, with the prevalence rate for type 2 antidiabetic agents doubling. Emily Cox, et al., “Trends in the Prevalence of Chronic Medication Use in Children: 2002-2005,” Pediatrics, November 2008. The study involved a sampling of commercially insured children, ages 5 to 19, and medications for asthma, attention-deficit disorder, depression, diabetes, high blood pressure, and high cholesterol. The researchers suggest that the increasing use of type 2 antidiabetic drugs was driven by 166 percent and 135 percent increases in prevalence among girls aged 10 to 14 and 15 to 19, respectively. Type 2 diabetes was once known as adult-onset diabetes, because it is linked to obesity, but it is appearing more in children. The study concludes with a call for more research into the factors responsible for the trends, “including growth in…

This article examines the effect of “shaky consumer spending” on the organic industry, which is “starting to show signs that a decades-long sales boom may be coming to an end.” New York Times reporter Andrew Martin states that, according to the Nielsen Co., organics sales growth has declined from 20 percent per year in recent years to 4 percent in the latest four-week period ending October 4. “If a slowdown continues,” he writes, “it could have broad implications beyond the organic industry, whose success has spawned a growing number of products with values-based marketing claims, from fair trade coffee to hormone-free beef to humanely raised chickens.” Industry experts apparently anticipate that as organics begin to lose less committed consumers, products marketed to children will nevertheless “continue to thrive because they appeal to parents’ concerns about health.” In addition, shoppers have become more selective about their purchases, “buying four or five products…

The Grocery Manufacturers Association, American National Standards Institute and other organizations are co-sponsoring a conference titled “Bolstering Consumer Confidence: Identifying Essential Third Party Food Safety Audit Criteria,” December 2-3, 2008, in Washington, D.C. Among the conference speakers is the administrator of the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS), who will discuss “his agency’s perspective on third party audits and the issue of country equivalency.” Other sessions will address Food and Drug Administration requirements for a comprehensive third party audit, harmonizing the global food safety system, and World Trade Organization concerns about private standards and third-party certification.

According to a news source, nine families whose babies developed kidney problems allegedly as a result of drinking milk tainted with melamine have filed individual lawsuits against the Sanlu Group, one of China’s largest milk companies. Each child developed kidney stones, and six reportedly remain hospitalized. The families are seeking the equivalent of US$2,000 for each child as compensation. Even though the families live in different provinces, the lawsuits were all filed in the northern city of Shijiazhuang, where the company is based. No judge has yet agreed to hear any of the milk cases in court, and a number of lawyers have apparently been pressured by government officials not to represent families seeking damages. See The New York Times, October 31, 2008.

A California appeals court has determined that a misreading of prior case law led a trial court judge to erroneously overturn a jury verdict in favor of a plaintiff who alleged that she was made ill from exposure to campylobacter at defendant’s restaurant. Sarti v. Salt Creek Ltd., No. G037818 (Cal. Ct. App., 4th App. Dist., Div. 3, decided October 27, 2008). So ruling, the court reinstated $725,000 in economic damages and $2.5 million in noneconomic damages and allowed the plaintiff to recover her costs on appeal. The trial court granted the defendant’s motion for judgment notwithstanding the verdict, after determining, under a heightened causation standard, that reasonable inferences alone cannot prove a food poisoning case. The appeals court exhaustively analyzes the court’s reasoning in Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003 (1977), and shows how the court in that case misread prior case law “to preclude the use…

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has scheduled a workshop for December 12, 2008, to discuss possible regulatory language that would apply to foods or crops with added nutrients that exceed levels considered safe under Proposition 65. According to OEHHA’s notice, “this set of regulations, if adopted, will only apply to chemicals that are already on the Proposition 65 list, or that are added to the list in the future. The exposure level established in these potential regulations for a listed chemical would not limit the amount of the chemical that can be added to any particular product and would not restrict the sale or availability of any food product or supplement. Instead, these levels could be used by businesses subject to the [Safe Drinking Water and Toxic Enforcement] Act to determine when a warning is required for an exposure to the listed chemicals in question in a food…

The USDA has issued a proposed rule that will amend the livestock provisions of the National Organic Program by providing greater detail about pasture and ruminant animals and “clarify the replacement animal provision for dairy animals.” Comments must be submitted on or before December 23, 2008. The Federal Register notice provides a history of the rule’s development and summarizes the content of the thousands of comments the agency received on an advanced notice of proposed rulemaking published in 2006. According to the agency, “[s]upport for strict standards and greater detail on the role of pasture in organic livestock production was nearly unanimous with just 28 of the over 80,500 comments opposing changes to the pasture requirements.” Among the changes are (i) defining “crop” to include pastures, sod and cover crops; (ii) defining “livestock” as “Any bee, cattle, sheep, goats, swine, poultry, equine animals used for food or in the production…

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