A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update. In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the…
Category Archives Issue 609
Responding to a request from the German Federal Institute for Risk Assessment, the European Food Safety Authority’s (EFSA’s) Panel for Contaminants in the Food Chain (CONTAM Panel) has published a statement on the presences of microplastics and nanoplastics in food, particularly seafood. According to the CONTAM panel, microplastics range in size from 0.1 to 5,000 μm and are either manufactured to that size (primary microplastics) or fragmented (secondary microplastics). Nanoplastics, which range in size from approximately 1 to 100 nm (0.001–0.1 μm), “originate from engineered material or can be produced during fragmentation of microplastic debris.” After reviewing the scientific literature, the panel concludes that more work is needed to develop and standardize analytical methods for microplastics and nanoplastics “in order to assess their presence, identity and to quantify their amount in food.” As the statement notes, “Occurrence data are limited. In contrast to microplastics no methods or occurrence data in…
The European Food Safety Authority (EFSA) has launched a new working group “to evaluate new scientific evidence on the potential effects of bisphenol A (BPA) on the immune system.” Prompted by a Dutch National Institute for Public Health and the Environment report on new studies “describing pre- and perinatal effects of BPA on the immune system,” EFSA’s Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids plans to issue a scientific statement on BPA and immunotoxicity at its September 13-15, 2016, plenary meeting. See EFSA News Release, June 20, 2016. Issue 609
At the behest of the Robert Wood Johnson Foundation (RWJF), the National Academies of Sciences, Engineering and Medicine (NAS) has issued a report examining “the approaches to data collection, analysis, and interpretation that have been used in recent reports on obesity prevalence and trends at the national, state, and local level, particularly among U.S. children, adolescents, and young adults.” Titled Assessing Prevalence and Trends in Obesity: Navigating the Evidence, the report reviews the literature to date, providing “a framework for assessing and interpreting published reports,” as well as “recommendations for improving future data collection efforts and filling data gaps.” Given the various challenges presented by data collection—such as inconsistencies among data sources; insufficient sample size; discrepancies between measured and self-reported data index; and the limitations inherent in trend estimates and interpretations—NAS offers the Assessing Prevalence and Trends (APT) Framework to help stakeholders, policymakers and other “end users” compare various studies…
The Alcohol and Tobacco Tax and Trade Bureau (TTB) has proposed wine labeling revisions to address concerns about the accuracy of labeling information for wines that contain more than 7-percent alcohol by volume but are exempt from label approval requirements. According to TTB, the regulations that govern wine labeling include (i) 27 CFR 24, which requires wine containers to feature “the name and address of the wine premises where bottled or packed; the brand name; the alcohol content; the kind of wine; and the net contents of the container,” and (ii) 27 CFR 4, which governs “the use of one or more grape variety names as a type designation, the use of type designations of varietal significance, the use of vintage dates, and the use of appellations of origin on wine labels,” such as the use of American viticultural area (AVA) names. Wines not intended for interstate or foreign commerce,…
Shook Partner Bert Ocariz served as an arbitrator in a dispute between Fresh Del Monte Produce Inc. and Inversiones y Procesadora Tropical SA that concluded with an award of $32 million to Del Monte. Del Monte Int'l GmbH v. Inversiones y Procesadora Tropical SA, No. 20097/RD (Int'l Chamber of Commerce). Del Monte argued that the Costa Rican pineapple producer had continued to cultivate its MD-2 pineapple after its contract lapsed in 2013. Ocariz and the other arbitrators found that although a 2002 settlement agreement held the MD-2 was in the public domain, the pineapple grower continued to use the same crops and seeds provided by Del Monte after the companies’ contractual relationship had concluded. The award includes $26.1 million in damages, interest and attorney’s fees as well as costs of $2.5 million. Issue 609
