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

In a July 3, 2008, letter to the Corn Refiners Association, the FDA has indicated that products containing high-fructose corn syrup (HFCS) may be labeled “natural” if the synthetic fixing agent that is used in the HFCS production process does not come into contact with the high dextrose equivalent corn starch hydrolysate, which undergoes enzymatic reaction to produce HFCS. The fixing agent apparently holds the enzyme in place on a column and any unreacted agent is removed by washing before the starch hydrolysate is added. Thus, “we would not object to the use of the term ‘natural’ on a product containing the HFCS produced by the manufacturing process described” by a representative of the Archer Daniels Midland Co., who met with FDA at the request of the Corn Refiners Association in April 2008. The agency added, “we would object to the use of the term ‘natural’ on a product containing…

According to a news source, a federal court in New Jersey has dismissed claims that the manufacturer of a beverage containing high-fructose corn syrup (HFCS) deceived the public by promoting the product as “all natural.” The court apparently based its ruling on federal preemption, leaving it to the Food and Drug Administration (FDA) to define the terms “natural” and “all natural.” U.S. District Judge Mary Cooper reportedly stated, “This court will not determine that which the FDA, with all of its scientific expertise, has yet to determine, namely how the terms ‘natural’ and ‘all natural’ should be defined and whether either may be used on the label of a beverage containing HFCS. Instead, this court will allow the FDA, which has already set forth specific requirements for what must be included on beverage labels, to decide whether such a determination is necessary and warranted.” The ruling specifically applies to Snapple®…

Researchers at the John Hopkins Bloomberg School of Public Health have reportedly concluded that obesity may increase the risk of developing adult-onset dementia. Beydoun, M. A., Beydoun, H. A. & Wang, Y., “Obesity and central obesity as risk factors for incident dementia and its subtypes: a systematic review and meta-analysis,” Obesity Reviews, May 2008. The authors conducted a meta-analysis of 10 previously published studies examining the relationship between dementia or its subtypes and various measures of body fat. A pooled analysis from seven of these studies indicated that baseline obesity increased the risk of Alzheimer’s disease by 80 percent on average, according to the Bloomberg School of Public Health. In addition, researchers found that underweight participants were also at a greater risk of dementia or related conditions. “Our analysis of the data shows a clear association between obesity and an increased risk for dementia and several clinical subtypes of the disease,”…

An FDA administrator has reportedly told a media source that the agency “would object to the use of the term ‘natural’ on a product containing HFCS [high fructose corn syrup].” Food NavigatorUSA.com revealed in an April 2, 2008, article that its reporters had inquired about HFCS using an FDA system designed to assist manufacturers with the labeling process. According to Food Navigator, FDA Supervisor Geraldine June of the Office of Nutrition, Labeling and Dietary Supplements replied in an email that, “The use of synthetic fixing agents in the enzyme preparation, which is then used to produce HFCS, would not be consistent with our (…) policy regarding the use of the term ‘natural.’” “Moreover,” June added, “the corn starch hydrolysate, which is the substrate used in the production of HFCS, may be obtained through the use of safe and suitable acids or enzymes. Depending on the type of acid(s) used to obtain…

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.…

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