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

This op-ed article examines the widespread presence of melamine in U.S. agriculture, claiming that despite China’s highly publicized problems with the industrial plasticizer, “what the American consumers and government agencies have studiously failed to scrutinize is how much melamine has pervaded our own food system.” James McWilliams, a history professor at Texas State University at San Marcos, argues that the recent spate of melamine-related incidents “points to the much larger relationship between industrial waste and American food production.” He notes that melamine is routinely added to domestic fertilizers “because it helps control the rate at which nitrogen seeps into the soil,” where it then accumulates as salt crystals that mix with other nutrients essential to crops. In addition, McWilliams warns that the “Byzantine reality” of global food networks makes it nearly impossible to ensure that all imported products are safe. McWilliams recommends that even as it scrutinizes China’s promise to…

The UK Soil Association has reportedly urged veterinarians to limit their penicillin use after health officials found that cows from one unidentified English farm are carriers of extended-spectrum betalactamase (ESBL) E. coli, a rare antibiotic-resistant strain of the disease. Although the organic watchdog noted that the government has asked the farmer and his family to follow strict hygiene procedures, regulators have not placed any restrictions on the movement or sale of the infected herd. “The government often calls on doctors to prescribe antibiotics less often. But similar advice needs to be given to veterinary surgeons and farms,” stated a policy advisor for the Soil Association, which, as of 2009, will also no longer certify organic farms that treat their livestock with a class of antibiotics known as cephalosporins. See FoodProductionDaily.com, November 19, 2008.

In a continuing series on the purported health effects of bisphenol A (BPA), a chemical widely used in plastic food storage containers and metal food cans, the Milwaukee Journal Sentinel has reported that all of the 10 “microwave safe” containers tested at the newspaper’s request leached BPA when heated in a microwave or conventional oven. While food companies advise worried parents to avoid microwaving food in plastic containers with the recycling number 7 stamped on the bottom, researchers apparently found that even those stamped with 2 and 5 leached the chemical. The highest bisphenol A levels reportedly leached from a can of liquid infant formula and a plastic food-storage container. Food company officials apparently responded to the findings by claiming that the low levels leached are insignificant. According to the Journal Sentinel, several peer-reviewed studies show harm to animals at levels similar to those detected in the newspaper’s tests, which…

The Produce Safety Project of the Pew Charitable Trusts has issued a report following its review of the government response to this summer’s Salmonella Saintpaul outbreak that affected thousands of consumers in many states and was never definitively linked to a source, although tomatoes and jalapeno peppers were alternately blamed. Citing specific examples of confusing, uncoordinated and poorly planned communiqués from multiple government agencies, the report calls for more post-mortem study of the government’s response to clarify its shortcomings and inform future efforts. Noting that federal agencies pointed to tomatoes as the cause of the outbreak, but that no contaminated tomato was ever found, the Pew report suggests that the error not only failed to adequately protect consumers but also cost the agricultural industry millions in losses and could have long-term impacts as consumers lose confidence in the safety of “fresh produce in general and fresh tomatoes in particular.” The…

According to a news source, the lawsuit instituted by the Sugar Association to challenge the marketing of the artificial sweetener Splenda® as “made from sugar so it tastes like sugar” has been resolved through a confidential settlement agreement. The trade organization alleged that McNeil Nutritionals’ product promotion deliberately misinformed consumers who would be led to believe that Splenda® contained sugar. A Sugar Association spokesperson reportedly said, “The sugar industry is very satisfied with the settlement and with what they believe will be the outcome of the settlement in terms of marketing of the product.” According to a McNeil spokesperson, the tag line is still in use. See Foodnavigator-usa.com, November 18, 2008.

A multidistrict litigation (MDL) court in New Jersey has entered an order approving the settlement of claims that pet food contaminated with melamine and cyanuric acid sickened and killed thousands of cats and dogs in the United States. In re Pet Food Prods. Liab. Litig., MDL No. 1950 (D.N.J., filed November 18, 2008). In its 65-page opinion, the court certified the class for settlement purposes and approved an award of $24 million to the plaintiffs and nearly $6.4 million in attorney’s fees. The court also denied a motion to intervene, overruled several objections and granted a motion to strike a separate motion for attorney’s fees. Pet owners will be eligible for documented economic damages, such as veterinary bills, cremation, burial services, costs of new pets, and healthy pet screenings. Claims without documentation will be paid up to a maximum of $900 for each claimant. If the claims exceed the available funds,…

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has scheduled a public workshop on December 3, 2008, to discuss how food retailers can provide warnings about foods containing chemicals that are listed under Proposition 65 as chemicals known to the state to cause cancer or reproductive hazards. The agency formed a workgroup to address the matter and has drafted “operating principles” based on its input. Among the concepts the agency is considering are a central “clearinghouse” of warning messages created by food manufacturers, point-of-sale pamphlets, cash-register-receipt warnings, on-product warning labels, or shelf signs. Public comments can be submitted during the workshop or in writing until January 16, 2009.

Food activist Marion Nestle reports in her “What to Eat” blog that the USDA’s National Organic Standards Board has approved a rule to allow “farmed carnivorous fish to eat meal and oil derived from sustainably wild-caught fish.” The board’s decision means that wild fish cannot be classified as organic, but farm-raised fish can be considered organic even if they eat fish meal made with wild fish. Citing Food Chemical News, Nestle notes that the board also approved the use of open net pens in organic aquaculture with restrictions to prevent farmed fish from escaping and the recycling of nutrients. “Net pens would only be allowed in specified areas to avoid lice contamination.” Consumers Union reportedly criticized the proposal at a press conference held before the board meeting at which the vote was taken, focusing on the use of “net cages,” which purportedly allow waste and disease from fish farms to…

FDA has reportedly opened the first of several overseas offices in Beijing, China, where eight U.S. officials described as “inspectors and senior technical experts in foods, medicines and medical devices” will work with Chinese regulators to improve export safety. FDA plans to launch two additional branches in Shanghai and Guangzhou, as well as expand its presence in India and Latin America. The agency will also train and certify third-party inspectors to ensure the safety of products bound for the U.S. market. FDA has lately come under fire for failing to “[keep] pace with the growing number of food firms,” according to the U.S. Government Accountability Office, which said federal regulators have “little assurance that companies comply with food-labeling laws and regulations.” Furthermore, China’s reputation has suffered both domestically and abroad as reports of melamine-tainted infant formula and agricultural products continue to surface. “We're opening up a new era, not just new…

EPA has published a notice seeking public comment on a petition filed by a number of environmental and consumer interest groups calling on the agency to classify nano-silver as a pesticide, require “formal pesticide registration of all products containing nanoscale silver, analyze the potential human health and environmental risks of nanoscale silver, [and] take regulatory actions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) against existing products that contain nanoscale silver.” Comments must be submitted by January 20, 2008. According to the notice, potentially affected parties are those businesses “engaged in the manufacturing of pesticides and other agricultural chemicals.” The petitioners, including the International Center for Technology Assessment, Friends of the Earth, Food & Water Watch, and the Consumers Union, apparently note that “scientists have identified that nanoscale materials can have fundamentally different properties from the non-nanoscale or bulk forms of the same compounds, and that these unique properties…

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