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

Noting that Washington, D.C.-based industry lobbyist Rick Berman will be on her MSNBC-TV program during the week of October 5, 2009, Rachel Maddow this week discussed the most recent campaign Berman’s Center for Consumer Freedom has undertaken on behalf of the producers of high-fructose corn syrup (HFCS). Maddow showed viewers the clip of a new TV ad that directs those wanting to know more about how sugar and HFCS are the same to a website that Maddow said was, “brought to you by something called the Center for Consumer Freedom . . . headed by . . . Rick Berman, the D.C. public relations guy who runs these operations as nonprofits so they don’t have to disclose the names of the companies that fund them.” Maddow also said that the center “is not just here to convince you to stop worrying about sugar, they also link to their other sites like…

The Public Education Center’s (PEC’s) DC Bureau has published a two-part investigative report titled Fish and Paint Chips: The Science and Politics of Ocean Trash, which explores “how plastic and other debris in the world’s increasing pollutants could be channeling toxins straight onto our dinner plates through tainted seafood.” The first part considers research suggesting that once in the ocean, “small bits of plastic are thought to soak up chemicals from paint chips, old metal and other garbage and eventually end up in the guts of the fish we eat.” According to PEC, these floating plastic pellets can act as a “toxic sponge,” absorbing chemicals like polychlorinated biphenyls (PCBs), when passing through “five so-called pollution gyres – massive fields of waste collected by wind and ocean currents in the North Atlantic, South Atlantic, North Pacific, South Pacific and Indian oceans.” Although some experts are apparently reluctant to extrapolate human health…

The Centre for Science in the Public Interest (CSPI Canada) has issued a report claiming that excess sodium “likely kills more Canadians every year than any other chemical substance” added to food. Titled “Salty to a Fault: Varied Sodium Levels Show Lowering Salt in Processed Foods IS Feasible,” the report surveyed 318 foods and purportedly found that a majority of Canadian restaurants and perhaps most packaged foods sold in grocery stores contain unhealthy and unnecessarily high levels of sodium. It calls on Health Canada to set category-by-category sodium-reduction targets for foods, alleging that “salt remains largely untouched by food safety laws and is grossly underestimated as a public health risk by government officials who generally direct much more attention to substances that pose rare or more acute risks.” The report apparently found varying degrees of sodium among groups of comparable foods, citing as an example two restaurant french fry orders…

The Center for Science in the Public Interest (CSPI) has issued a paper claiming that a state tax on sugar-sweetened beverages “would yield billions of dollars in new revenue and counter the alarming risks of obesity, poor nutrition, and displacement of more healthful foods and beverages.” Echoing similar proposals published in the New England Journal of Medicine and by the Institute of Medicine, the CSPI report calls for “a modest new (or extra) tax of five cents per 12-ounce serving” that would nationally raise state revenues by “more than $7 billion annually, ranging from about $13 million in Wyoming to about $878 million in California.” The paper also includes a chart detailing “‘nickel-a-drink’ state revenue projections, based on national consumption data and pro rated for each state’s population.” “President Obama is exactly right when he says kids are drinking too much soda,” stated CSPI Executive Director Michael Jacobson in a September…

Starting from the premise that consumer enjoyment of food is linked directly to its color, this article discusses the types of substances that have been used over the centuries to change the appearance of food products and how various governments have tried to regulate their use. The earliest food coloring regulations in the United States were developed under pressure by dairy producers who were able, at one time, to persuade the legislatures of five states to pass laws requiring that margarine be dyed pink to compromise its acceptability in the marketplace. The author traces the history of U.S. laws regulating color additives, noting how debate has raged over the application of strict standards that bar the use of substances with even a 1 in a billion cancer risk to applying what the Food and Drug Administration has championed and called de minimis exceptions that would allow the use of color…

An Ohio appeals court has dismissed negligence, product liability, fraudulent concealment, and civil conspiracy claims filed against companies that supplied diacetyl to a flavoring company that employed two workers who allegedly contracted bronchiolitis obliterans, a debilitating lung disease, from exposure to the butter-flavoring chemical. Doane v. Givaudan Flavors Corp., No. C-080928 (Ohio Ct. App., decided September 25, 2009). Affirming the trial court’s grant of defendants’ motions for summary judgment, the appeals court found, among other matters, that the claims were barred by the statute of limitations and because the employer was a sophisticated purchaser with greater knowledge about the “dangers of diacetyl” than its suppliers.

The Center for Science in the Public Interest (CSPI) has filed a putative class-action lawsuit in a Connecticut court on behalf of an Arizona woman who allegedly had a severe allergic reaction from eating artificial chicken patties made with a Quorn Foods, Inc. fungus. Cardinale v. Quorn Foods, Inc., No. __ (Conn. Super. Ct., filed September 15, 2009). CSPI participated in another lawsuit raising similar allegations against the Connecticut-based company and Whole Foods Markets, Inc. in Texas, but those claims were apparently dismissed. According to CSPI, more than 1,000 consumers have contacted it to complain that eating foods containing the meat substitute, described in the complaint as “a proprietary processed, vat-grown, soil fungus, combined with flavorings, binders, and other substances,” causes nausea, vomiting, diarrhea, hives, difficulty breathing, or anaphylactic reactions. A CSPI press release characterizes the product as a “fibrous, proteinaceous paste.” The named plaintiff in the Connecticut litigation purportedly…

California residents have filed a putative class action against Pinnacle Foods Group, LLC in federal court, alleging that its frozen food products, if prepared as directed, will not “reach the ‘kill step’ temperature necessary to destroy dangerous bacteria.” Meaunrit v. The Pinnacle Foods Group, LLC, No. 09-4555 (N.D. Cal., filed September 28, 2009). They also claim that the company’s failure “to use appropriate quality control measures within its supply chain,” means that “almost every ingredient in these products is a potential carrier of pathogens, according to government and industry officials.” According to the complaint, “[s]ince there is no reasonable way to know whether Salmonella or other bacteria has [sic] been destroyed based on the design of these products, Plaintiffs and the class suffered harm due to Pinnacle’s conduct.” The named plaintiffs seek to represent a class of either California or U.S. residents, who bought “pot pie products under the Swanson and…

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) held a “pre-regulatory workshop” on September 25, 2009, to present to stakeholders its proposed warning program for exposures to Proposition 65 (Prop. 65) chemicals in foods sold at retail. According to a news source, industry representatives raised “significant” concerns over the draft proposal, which would require producers to place product-specific warning information on an internet database and retailers to access the information and select from a “menu” of options to communicate product warnings to the public. A spokesperson for the California Grocers Association reportedly complained that, as drafted, the existing plan would be impossible to comply with. She claimed that grocery stores should be able to make binders available to shoppers containing warning summaries for different foods. The effect on small grocers is also apparently an issue, and OEHHA counsel called on stakeholders to submit comments on how “small” retailers could…

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has announced the availability of a new general food defense plan developed by the Office of Data Integration and Food Protection, with input from small and very small establishments. FSIS has notified facilities identified in a 2008 survey as lacking a food defense program about the voluntary general plan, which aims to “reduce the chances of someone intentionally contaminating the food supply in order to kill or hurt people, disrupt [the] economy, or ruin [their] business.” Designed to reduce company liability, the general food defense plan includes sections on (i) outside security measures, (ii) inside security measures, (iii) personnel security measures, and (iv) incident report security measures. FSIS will also conduct a second food defense survey in December 2009. See Meatingplace.com, September 30, 2009.

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