Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough will participate in the American Conference Institute’s (ACI’s) “FDA & USDA Compliance Boot Camp: An In-Depth and Comprehensive Course on Regulatory Requirements for the Food and Beverage Industry,” scheduled for October 3-4, 2012, in Chicago. Joining a faculty of expert in-house counsel, regulatory officials and seasoned practitioners, McDonough will address “Preemption Fundamentals: Overview of Recent Case Decisions and How to Successfully Assert Federal Preemption.”
Category Archives Issue 446
A recent study has reportedly claimed that two species of shiner fish exposed to bisphenol A (BPA) were more likely to mate in mixed-species pairings. Jessica Ward and Michael Blum, “Exposure to an environmental estrogen breaks down sexual isolation between native and invasive species,” Evolutionary Applications, July 2012. After collecting specimens from rivers throughout Georgia, scientists evidently used a controlled environment to study the effects of short term BPA exposure on both the red shiner fish (Cyprinella lutrensis), an invasive species, and the native blacktail shiner fish (Cyprinella venustra). Their results allegedly showed that males exposed to BPA lost some of their distinctive coloring, leading females to more frequently choose mates not of their own species. “Until now studies have primarily focused on the impact to individual fish, but our study demonstrates the impact of BPA on a population level,” explained one of the study’s authors in a July 11,…
Yale University Rudd Center for Food Policy and Obesity’s Kelly Brownell has provided a “Perspective” article for PLoS Medicine’s ongoing series about “Big Food.” Titled “Thinking Forward: The Quicksand of Appeasing the Food Industry,” the July 3, 2012, article contends that public-health efforts to collaborate with the food industry to address obesity are a mistake. According to Brownell, “The food industry has had plenty of time to prove itself trustworthy,” but because food companies “must sell less food if the population is to lose weight, . . . this pits the fundamental purpose of the food industry against public health goals.” Brownell calls for the industry to be regulated. “Left to regulate itself, industry has the opportunity, if not the mandate from shareholders, to sell more products irrespective of their impact on consumers. Government, foundations and other powerful institutions should be working for regulation, not collaboration.” Another article in the…
“The fact is, organic food has become a wildly lucrative business for Big Food and a premium-price-means-premium-profit section of the grocery store,” writes Times correspondent Stephanie Strom in this July 7, 2012, article about perceived conflicts of interest on the National Organic Standards Board (NOSB). According to Strom, who tracks the consolidation of organic brands under larger corporations, “[t]he industry’s image—contented cows grazing on the green hills of family-owned farms—is mostly pure fantasy. Or rather, pure marketing. Big Food, it turns out, has spawned what might be called Big Organic.” Strom argues that Big Organic has “come to dominate” the 15-member NOSB, which determines the national list of nonorganic ingredients permitted in “certified organic” products. In particular, she claims that some seats reserved for farmers or scientific experts have gone to corporate executives or other representatives from large organic food processors with a stake in promoting their own production methods.…
The World Trade Organization Appellate Body has partially rejected the U.S. Office of the Trade Representative’s (USTR’s) appeal in a dispute with Canada and Mexico over “country of origin” labeling (COOL) for beef and pork products. After WTO’s Dispute Settlement Panel ruled in November 2011 that specific provisions of the U.S. COOL program provided less favorable treatment to Canadian and Mexican livestock, USTR appealed the ruling on the ground that COOL does not impose unfavorable treatment of imported products because it “requires meat derived from both imported and domestic livestock to be labeled under the exact same set of circumstances.” Additional details about the appeal appear in Issue 433 of this Update. In upholding the Dispute Panel’s assessment, the WTO Appellate Body agreed that “the COOL measure treats imported livestock differently than domestic livestock,” in part because it creates “an incentive in favor of processing exclusively domestic livestock and a…
University of Kansas School of Law Professor Andrew Torrance discusses in this article the promises of synthetic biology, which takes genetic engineering (GE) one step further by designing organisms from scratch, and its potential perils. Dubbed “synagriculture,” the new technology is apparently being developed by those dedicated to sharing, spreading and pooling innovative biotechnologies and eschewing patent, copyright, trademark, and trade secrecy to protect inventions. Part of the Do-It-Yourself biology movement, synagriculture, according to the author, represents a democratization of GE crop and livestock development, which some contend has given agricultural companies too much control over farmers. After reviewing an array of GE legal issues, Torrance concludes, “it would be well and wise for the law to prepare itself to reexamine the brave new world of synagriculture with brand new eyes.”
The European Union (EU) General Court has affirmed a ruling of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and dismissed the application of a beverage company to register “Royal Shakespeare” as a word mark for its scotch whiskey. Jackson Int’l Trading Co. Kurt D. Brühl GmbH & Co. KG v. OHIM, Case T-60/10 (Gen. Ct., decided July 6, 2012). According to the court, the Royal Shakespeare Co. had registered “Royal Shakespeare Company” three years before Jackson International sought to register its mark, the theater company’s mark has a reputation before the public at large and not among an elite as argued by Jackson International, and the beverage maker’s use of the mark would take “unfair advantage of the distinctive character or the repute of the earlier trade mark.”
A federal court in Wisconsin has reportedly approved a consent decree between the U.S. government a Wisconsin livestock operation that allegedly violated federal drug laws by failing to maintain adequate animal treatment records, using new animal drugs illegally and failing to adequately distinguish between medicated and non-medicated animals for sale for use as human food. The Food and Drug Administration (FDA) initially warned the owner of Nolan Livestock in 2004 that a U.S. Department of Agriculture inspection revealed the presence of an illegal antibiotic in the edible tissues of its dairy cows. Under the consent decree, the owner must cease operations and then resume only when it has documented to FDA’s satisfaction that it has corrected the problems observed and has instituted appropriate procedures to prevent a recurrence. See U.S. Department of Justice News Release, June 26, 2012; FDA News Release, July 10, 2012.
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
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