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

This article addresses one possible explanation for a phenomenon that New York Times journalist John Tierney refers to as “the American obesity paradox,” which he describes as the failure of America’s health food obsession to curb obesity rates. Tierney and Pierre Chandon, an assistant marketing professor with the Institut Européen d’Administration des Affaires (INSEAD), asked separate groups of New York City residents and tourists to estimate the calories of two nearly identical meals from Applebee’s. The first meal contained a salad and a soft drink; the second meal was identical, but added a 100-calorie package of crackers labeled “Trans Fat Free.” The U.S. residents overestimated the calories in the first meal, but underestimated them in the second one. “Just as Dr. Chandon predicted, the trans-fat-free label on the crackers seemed to imbue them with a health halo that magically subtracted calories from the rest of the meal,” writes Tierney, who…

Inquirer staff writer Tom Avril opens his piece by focusing on a nutritionist who advised consumers to drink orange juice as a boost to the immune system when Forbes.com wrote an article in 2007 about preventing colds and the flu and turned to her for a quote. Apparently, nutritionist Lisa Hark was being paid by the Florida orange industry to promote its product when she gave the advice. According to Avril, such corporate ties are not unusual, and he notes how the federal government formed a new 13-member panel this year to review dietary guidelines, including six members who “have received funding from the food or pharmaceutical industries.” Most of the article details Hark’s ties to other corporations and questions whether she was qualified to make some nutrition recommendations she provided on their behalf. Kelly Brownell, director of the Rudd Center for Food Policy and Obesity at Yale University, is…

The City University of New York Campaign Against Diabetes and the Public Health Association of New York City (PHANYC) have published a report, titled Reversing Obesity in New York City: An Action Plan for Reducing the Promotion and Accessibility of Unhealthy Food, that aims to educate policy makers, advocates and health professionals about food policy issues. Focused on lowering obesity rates in New York City, the report asks local government to: (i) “create local healthy food zones” in schools, churches, health centers, and other public institutions; (ii) “use zoning laws to reduce density of unhealthy food outlets”; (iii) “strengthen oversight of deceptive health claims in food advertising”; (iv) “discourage racial/ethnic targeting of unhealthy food advertisements”; (v) “tax unhealthy food such as sweetened soda and other beverages”; (vi) “support counter-advertising campaigns against unhealthy foods”; and (vii) “restrict advertising and promotion of unhealthy food.” In addition, CUNY Campaign Against Diabetes and PHANYC…

The Center for Science in the Public Interest (CSPI) has issued its annual Outbreak Alert! report, which claims that “a pound of fish and shellfish is 29 times more likely to cause illness than the safest food category, a pound of dairy foods.” According to CSPI, their database has tracked 1,140 foodborne illness outbreaks linked to fin fish, mollusks, and shrimp and lobsters. The group has attributed “a plurality of seafood outbreaks” to naturally occurring toxins such as scombrotoxin and ciguatoxin, but noted the impact of Vibrio bacteria and noroviruses. “Because foodborne illness is drastically underreported, because much foodborne illness does not occur in outbreaks, and because it is so difficult to prove which food caused an outbreak, CSPI’s data represents [sic] just the tip of the iceberg,” stated the watchdog in a November 25, 2008, press release. See FoodNavigator-USA.com, November 26, 2008.

The Center for Science in the Public Interest (CSPI) has published new data on the levels of sodium in processed foods. CSPI apparently found that of the more than 500 products tested in 2005 and retested for this report, “[t]he average sodium content of 528 has remained essentially constant, increasing by a slight 0.6 percent. About as many products (109) increased by more than five percent as decreased (114) by that percentage. And there were almost twice as many (29) products that increased by 30 percent or more as decreased by that percentage (18).” CSPI calls on restaurateurs and food processors to “lower the sodium content of their foods for the sake of their customers’ health and to avoid unflattering publicity.” The advocacy group also calls on the federal government to set sodium limits for processed foods and for the Food and Drug Administration to change salt’s regulatory status from “Generally…

The Canadian government has reportedly filed a complaint with the World Trade Organization (WTO), challenging the U.S. country-of-origin labeling (COOL) law. According to a news source, Canada alleges that COOL will impose unnecessary costs on meatpackers that use Canadian livestock and could lead to additional and more stringent labeling requirements in other countries. Canadian Trade Minister Stockwell Day was quoted as saying, “We believe that the country-of-origin legislation is creating undue trade restrictions to the detriment of Canadian exporters.” The complaint initiates a consultation period, which, if unsuccessful, could lead to resolution by a WTO dispute settlement panel. Canadian beef and pork producers recently called on the government to institute such action; further details about their concerns appear in issue 281 of this Update. See Meatingplace.com, December 2, 2008.

The federal government has sued a California dairy that ships raw milk to other states, claiming that the company falsely labels its products as “pet food” to exploit a purported loophole in the law about raw milk distributed in interstate commerce and makes claims that its products can treat or prevent a host of diseases without Food and Drug Administration (FDA) approval. U.S. v. Organic Pastures Dairy Co. LLC, No. 08-00692 (E.D. Cal., filed November 20, 2008). The complaint requests that the dairy be permanently enjoined from shipping (i) products across state lines whether labeled as “for human consumption or pet food” and (ii) “products with labeling that makes them drugs” under federal law. According to the complaint, the FDA issued the defendants a warning letter in February 2005, stating that distribution of raw milk in interstate commerce violates the law and that failure to comply could lead to product…

According to a press report, the D.C. Circuit Court of Appeals has refused the request of Whole Foods Market, Inc. that the court reconsider, en banc, a July 2008 decision by a three-judge appellate court panel reviving the Federal Trade Commission’s antitrust challenge to the company’s merger with Wild Oats Markets, Inc. More information about the panel’s divided ruling appears in issue 269 of this Update. The commission will conduct administrative hearings on the merger in February 2009. While the merger was completed in August 2007, the commission could apparently try to stop further integration of the companies’ operations or require Whole Foods to sell some properties. In a statement, Whole Foods reportedly indicated its intent to vigorously defend the administrative proceedings, “even though we believe it is an unfair process and a violation of the company’s due process rights.” See Dow Jones Newswires, November 21, 2008. Meanwhile, a Chicago…

The Kansas Department of Agriculture this week held its final hearing on a regulation that would ban labels advertising a dairy product as “rBGH free,” “rBST free” or “artificial growth hormone free.” As of January 2010, the measure would also require products marketed as “derived from cows not supplemented with growth hormones” to carry disclaimer language stating, “the FDA has determined that no significant difference has been shown between milk derived from rBST-supplemented and non-rBST-supplemented cows.” The department proposed the rules to reduce consumer confusion on the issue, but organic and environmental groups have since formed a coalition to lobby against the regulation. According to the Center for Food Safety, “94 dairy farmers; consumer, farm and agricultural groups; public health, animal protection and environmental organizations; food processors; and retailers” signed a letter to Kansas Governor Kathleen Sebelius (D), claiming that the “proposed rule puts unnecessary obstacles in the way of…

Toronto’s city council has approved a ban on the sale and distribution of bottled water at city facilities, making it the largest city in the world to impose such a ban. The council also approved a measure requiring shoppers to pay five Canadian cents for plastic bags and business owners to offer reusable bags and carry-out containers. Environmental concerns have apparently spurred the initiatives, which come on the heels of a complaint filed by environmental interests in Canada against Nestlé accusing it of misleading the public by claiming that its bottled water is “the most environmentally responsible consumer product in the world.” A company spokesperson reportedly stood by the claim, saying that most water bottles are recycled and that bottled water takes less water to produce than soft drinks, sliced bread or a can of vegetables. See Globe and Mail, December 1, 2008; Wikinews Shorts, December 4, 2008.

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