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

A Swiss study of factors that consumers consider when deciding whether to accept or reject innovative food technologies suggests that nanotechnology would be more acceptable than genetic modification (GM). Michael Siegrist, “Factors Influencing Public Acceptance of Innovative Food Technologies and Products,” Trends in Food Science and Technology (forthcoming 2008). Reviewing the literature on the subject, researcher Michael Siegrist found that the processes used to make food are significant considerations for modern consumers. For example, chemical changes involving the addition of an ingredient are viewed as reducing a product’s naturalness, an “all-important” factor, while physical processes, such as grinding, are not. Thus, Siegrist reportedly concludes, “This reasoning suggests that consumers may be more willing to accept nanotechnology food than GM food. Since the former most likely will not be perceived as tampering with nature, few people will have a moral impetus to oppose this technology now.” While trust in the food industry…

This article examines the latest squabble at the U.S. Department of Agriculture and Food and Drug Administration over the circumstances under which food products can properly be labeled “natural.” Noting that a number of chicken producers inject their “all natural” birds with salt water and broth, a practice some call fraudulent, journalist Andrew Bridges reports that even Michael Jacobson, executive director of the Center for Science in the Public Interest, finds the issue confusing; he was quoted as saying, “It’s worth bringing in the rabbis to analyze these situations because it’s complicated, it’s subtle. You can argue from both sides. It has fine distinctions.” Petitions, comments and lawsuits have been filed over the matter involving foods ranging from poultry, beef and pork to soft drinks and other products containing high-fructose corn syrup. The final word is given to a Consumers Union scientist and policy analyst who observed, “The ‘natural’ thing…

A poultry producers coalition has reportedly launched a campaign to end “natural” labeling claims for chickens enhanced with water, salt or binding agents such as carrageenan. Sanderson Farms, Inc., Foster Farms and Gold’n Plump Poultry have asked USDA, which is currently redrafting its rules on “natural” claims, to exclude chicken products that are mechanically injected or tumbled with a marinade solution to improve appearance and moisture retention. The current definition specifies only that products cannot contain artificial ingredients and must be “minimally processed.” The Center for Science in the Public Interest (CSPI) contends that “some unscrupulous poultry producers add as much as 15 percent saltwater–and then have the gall to label such pumped-up poultry products ‘natural.’” U.S. Representatives Dennis Cardoza (D-Calif.) and Charles Pickering (R-Miss.) claimed in a recent press release that approximately 33 percent of fresh chicken sold to consumers was altered via injection or “vacuum tumbling.” They also argued…

The Center for Science in the Public Interest (CSPI) has reportedly dropped plans to sue Cadbury-Schweppes for marketing 7UP® as “all natural” despite the presence of high-fructose corn syrup in its product. The beverage company apparently issued a statement indicating that it will highlight those ingredients “for which there is no debate” over whether they are natural. CSPI warned the company in May 2006 that it was planning to file a lawsuit and had been in negotiations over the matter. CSPI Litigation Director Steve Gardner was quoted as saying, “We look forward to seeing exactly which words the company uses to describe its ingredients on labels and on marketing materials, but trust they won’t imply that high-fructose corn syrup is ‘natural.’” CSPI has also announced that the group “may file previously announced lawsuits against Coca-Cola and Nestlé (over Enviga, a deceptively labeled green tea drink positioned as a weight-loss aid) and…

Identifying themselves as “observant Jews,” three named plaintiffs have filed a putative class action lawsuit against a hot dog producer in Cook County, Illinois, alleging that its 100 percent beef claims breach an express warranty, violate the Uniform Commercial Code’s provisions on conforming goods, and constitute consumer and common law fraud. Gershengorin v. Vienna Beef, Ltd., No. 06CH25277 (Cook County, Illinois, filed Nov. 20, 2006). According to the complaint, “Vienna Beef knowingly omits informing the consumer public that Vienna Beef is using pork intestine as casing for its Natural Casing Beef hotdogs.” The plaintiffs, who claim they have been injured emotionally by the company’s fraudulent advertising campaign, are bringing the action on behalf of all U.S. residents who consumed a “Natural Casing Beef” hot dog manufactured by Vienna Beef that actually contained pork intestine casing. The complaint asserts that questions of law and fact common to the class members include…

After a two-month trial, San Francisco Superior Court Judge Robert Dondero late last week ruled that California cannot require the manufacturers of Chicken of the Sea, StarKist and Bumble Bee tuna to warn consumers that their products contain mercury and mercury compounds. California Attorney General Bill Lockyer filed the lawsuit in June 2004 under the state antitoxics law Proposition 65, which requires businesses to warn the public about exposure to chemicals “known to the state to cause cancer or reproductive toxicity.” The law does not apply to chemicals that occur naturally in food. Press reports indicate the court ruled that (i) Prop. 65 is preempted by a March 2004 Food and Drug Administration joint consumer advisory on methylmercury in fish and shellfish; (ii) low levels of mercury contained in tuna products do not merit warnings; and (iii) tuna is exempt from Prop. 65 requirements because mercury in fish is naturally occurring.…

“Americans are largely unaware of GM foods, both of its presence in their lives and of its wide application in food production,” according to a survey conducted by the Rutgers Food Policy Institute. Less than one-half of survey respondents (48 percent) knew that GM foods are available in supermarkets, and less than one-third of them (31 percent) believed they had ever eaten GM products. Other survey findings showed that participants want food labeling to clearly indicate pesticide use, GM status and country of origin. See Associated Press, March 24, 2005.  

Energy intake from the consumption of soft drinks in the United States increased some 135 percent between 1977 and 2001, according to a new study published in the October issue of the American Journal of Preventive Health. Data from the study were derived from three food surveys of more than 73,000 Americans that included age groups ranging from 2-year-olds to senior citizens. The study found that daily calories from soft drinks and fruit drinks nearly tripled between 1977 and 2001, rising from 2.8 percent to 7 percent of the total caloric intake in the daily diet. Overall, this amounted to a 278-calorie average daily increase. Young adults aged 19-39 reportedly drank the most soft drinks, boosting consumption from about 4 to almost 10 percent. Milk consumption over the same period, however, dropped. Overall, Americans derived 38 percent less of their daily calories from milk. The authors, researchers from the University of…

According to the president for the Physicians Committee for Responsible Medicine (PCRM), a nonprofit vegan group founded in 1985, recent, unpublicized studies have suggested that “cheese, chocolate, sugar, and meat all spark the release of opiate-like substances that trigger the brain’s pleasure center and seduce us into eating them again and again.” Neal Bernard also discusses research showing (i) “participants moving to a vegetarian diet have a harder time giving up cheese than almost any other food”; (ii) “the principal protein in cheese, casein, breaks apart during digestion to produce abundant amounts of morphine-like compounds called casomorphins”; and (iii) naxolone, an opiate blocker used to treat morphine and heroin overdoses, reduces the desire for chocolate, sugar, cheese, and meat suggesting that their attraction does indeed come from druglike effects caused within the brain.” Bernard asserts that “just as Big Tobacco intentionally manipulated the addictive qualities of its products, Big Food…

This article discusses obesity-related litigation that has been instituted since the U.S. surgeon general declared in December 2001 that obesity and overweight are responsible for some 300,000 deaths annually. Tobacco-control activists John Banzhaf and Richard Daynard, who are quoted in the article, apparently did not think much of such litigation when the idea first surfaced. They now expect, however, that media attention will give rise to increasing attorney interest and the filing of other cases. Plaintiffs’ lawyer John Coale, described as “a veteran of tobacco and gun litigation,” evidently believes that the food industry’s Achilles’ heel is the targeting of children through Saturday morning television commercials, contracts to serve fast food and soft drinks in schools, and promotional initiatives involving toys. Tort reform advocate and Shook Partner Victor Schwartz reportedly predicts that it will take about five years of discovery in obesity-related litigation for plaintiffs’ lawyers to find “documents that, if…

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