A California appeals court has determined that canned tuna sold in the state does not need a mercury warning label under Proposition 65 (Prop. 65) for reproductive toxicity because the mercury is naturally occurring and thus falls within a Prop. 65 exemption. People ex rel. Brown v. Tri-Union Seafoods, LLC, No. A116792 (Cal. Ct. App., decided March 11, 2009). A trial court ruled in 2006 that the labels were not required because (i) federal law preempts state action on methylmercury in fish; (ii) the trace levels of mercury in canned tuna were too insignificant to require warnings; and (iii) the mercury is naturally occurring. Further information about that ruling appears in issue 170 of this Update. The appeals court specifically considered and based its ruling on the last basis for decision only, finding that substantial evidence supported the trial court’s determination as to the source of mercury contamination in fish.…
Category Archives Issue 296
A Johns Hopkins Bloomberg School of Public Health study has reportedly found evidence that houseflies living near poultry operations could contribute to the spread of drug-resistant bacteria among humans. Researchers collected flies and poultry-litter samples from farming operations in the coastal regions of Maryland, Delaware and Virginia, which has “one of the highest densities of broiler chickens per acre in the United States.” Slated for publication in the April 2009 issue of Science and the Total Environment, the results showed similar strains of antibiotic-resistant Enterococci and Staphylococci in both the flies and the litter, leading the study authors to speculate that “flies in intensive production areas could efficiently spread resistance organisms over large distances.” “The findings demonstrate another potential link between industrial food animal production and exposures to antibiotic resistant bacteria,” states a March 16, 2009, press release issued by the school’s Center for a Livable Future.
Mineral-water bottles made with PET, or polyethylene terephthalate, a chemical used in many food and beverage containers, particularly those marked with the number 1 inside a triangle, have been found to leach an unknown estrogen-mimicking chemical. Martin Wagner & Jörg Oehlmann, “Endocrine Disruptors in Bottled Mineral Water: Total Estrogenic Burden and Migration from Plastic Bottles,” Environmental Science & Pollution Research, March 10, 2009. Research from the Johann Wolfgang Goethe University in Frankfurt, Germany, is apparently the first to find consistent contamination from PET bottles, once thought to be a better alternative to plastic bottles containing bisphenol A. The researchers have been unable to identify the substance causing the hormonal activity in exposed snails, but PET evidently contains minute amounts of antimony, which does have estrogenic effects. Mollusks cultured in PET bottles apparently exhibited significantly increased reproductive output. A news source indicates that the study authors are concerned about their findings because…
New York Times columnist Nicholas Kristof recently published two op-ed pieces claiming that high-density pig farms have contributed to an increase in methiciliin-resistant Staphylococcus aureus (MRSA) in rural communities. A March 12, 2009, article titled “Our Pigs, Our Food, Our Health” examines the case of a family physician in northwestern Indiana, where patients reportedly began contracting MRSA at unusually high rates. Although the doctor suspected that the town’s hog farms were linked to the outbreak, he died of a heart attack or aneurysm—possibly the result of his own exposure to MRSA—before concluding his investigation. Yet, Kristof notes that other researchers have documented cases of people developing or carrying MRSA after working on pig farms. He points to a University of Iowa study that apparently found MRSA in 45 percent of pig farmers and 49 percent of pigs tested for the disease. “The larger question is whether we as a nation have…
In a letter to investors, a Sunoco spokesperson reportedly stated that the gas and chemical maker will not sell bisphenol A (BPA) to companies for use in food and beverage containers for children younger than age 3. Referring to the company’s plan to require customers to guarantee that BPA will not be used in this way, Sunoco’s head of public relations, Thomas Golembeski, was quoted as saying, “We will no longer sell BPA to customers who cannot make this promise.” Environmental advocates reportedly called the initiative a “sea change” for a company that once purportedly defended the chemical and appears now to be acknowledging concern about BPA’s safety. See Journal Sentinel, March 12, 2009.
The Union of Concerned Scientists recently criticized the Food and Drug Administration (FDA) for failing to solicit public and scientific input before it approved “the first commercialization both of a drug from a genetically engineered [GE] animal and of the animal itself.” According to the Union, FDA has allowed a Massachusetts company to raise a herd of GE goats capable of producing milk that contains a human protein used to prevent blood clots. The consumer advocacy group has accused the agency of violating its promise to open a public comment period and to gather feedback from an FDA advisory committee before permitting the company to market the goats. “Under the FDA’s process, there were no discussions of the safety or ethical implications of the approval, nor were regulations developed to keep the goats and their milk from contaminating the food supply,” opined the Union in its March 2009 Food &…
German courts in Bavaria have reportedly been considering issues raised in a lawsuit filed by an amateur beekeeper who was forced to destroy his honey after it was found to be contaminated with pollen from a nearby field trial of genetically modified (GM) corn. Beekeeper and handyman Karl Heinz Bablok, aware that his hives were near GM cornfields, apparently had samples of honey tested and found that 7 percent of the pollen was from the GM crops. An Augsburg court ordered him to stop selling or giving away his honey, so he sued the Bavarian State Research Center for Agriculture to recover his costs and lost sales of about US$12,900. Now before a third court, the case reportedly raises significant GM-related issues: if Bablok wins, the GM corn would be discredited; if the court decides that Bablok’s honey is not subject to licensing regulations under the European Union food law,…
A federal court in the District of Columbia has dismissed a lawsuit filed by California almond growers, handlers and grower-handlers against the U.S. Department of Agriculture (USDA) challenging an agency regulation that requires handlers to treat raw almonds grown and sold in the United States to reduce the risk of Salmonella contamination. Koretoff v. Vilsack, No. 08-1558 (D.D.C., decided March 9, 2009). Without addressing the merits of the complaint, the court granted the USDA’s motion to dismiss, finding that the plaintiffs failed to exhaust their administrative remedies, which would have required petitioning the USDA secretary before bringing their action in court, as mandated by statute. Since September 2007, all domestic almonds intended for sale in the United States must be pasteurized by either proplylene-oxide fumigation or steam heat. Growers and handlers reportedly complain that unpasteurized raw almonds demand higher prices, up to 40 percent more, and that foreign suppliers, who are…
Judge Richard Posner, writing for a Seventh Circuit Court of Appeals panel, has determined that the government failed to prove that the defendant misbranded food by changing the “best when purchased by” date on bottled salad dressing that he then resold. U.S. v. Farinella, Nos. 08-1839, 08-1860 (7th Cir., decided March 12, 2009). A jury convicted the defendant of wire fraud and of introducing into interstate commerce a misbranded food with intent to defraud or mislead, and he was sentenced to five years of probation, including six months of home confinement, and to pay a $75,000 fine and forfeit his gains in excess of $400,000. According to the court, the defendant bought 1.6 million bottles of Henri’s Salad Dressing in May 2003, and they were labeled with “best when purchased by” dates ranging from January to June 2003. The defendant resold the dressing in discount stores, but pasted over the…
The Federal Circuit Court of Appeals has determined that a U.S. Department of Agriculture (USDA) Salmonella rule, which interfered with an egg producer’s sales for about two years, was not a compensable taking under the Fifth Amendment. Rose Acre Farms, Inc. v. U.S., No. 07-5169 (Fed. Cir., decided March 12, 2009). The case involved emergency regulations adopted in 1990 that restricted the sale of eggs from farms identified as infected with a type of Salmonella bacteria. The regulations diverted the eggs from three of Rose Acre’s farms from the table to other uses, such as in cake mixes, for 25 months and thus purportedly reduced the company’s profits. The company brought several lawsuits against the government, and the various issues raised were appealed several times. This appeal involved the “takings” issue only and was before the Federal Circuit for the second time. Under the Fifth Amendment, the government must compensate private…
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