The National Organic Program has issued final guidance for accredited certifying agents and certified and exempt organic operations to clarify federal regulations about substances used in the post-harvest washing, packing and storage of organic products. The document specifically addresses: “(1) What substances may be used for post-harvest handling; (2) the difference between ‘post-harvest handling of raw agricultural commodities’ and ‘further processing’; and (3) the regulatory requirements for facility pest management.” See Federal Register, January 15, 2016. Issue 590
Category Archives Issue
In the law of product liability, lawyers representing manufacturers have underutilized the broad prohibition on “category liability.” Shook Public Policy Partners Victor Schwartz and Cary Silverman explain this doctrine and show how a Mississippi trial court judge applied it to dismiss design defect claims against respirator manufacturers in a Bloomberg BNA Product Safety & Liability Reporter article. Category liability arises when there is no true reasonable alternative design for a lawful product. For example, it is inappropriate to compare the safety of a convertible with an open roof design to a car with a solid roof design. Roller skates should not be compared to rollerblades. Bicycles and motorcycles should not be compared to tricycles and scooters. In the Mississippi litigation, plaintiffs presented elastomeric respirators (sealed to face with inhalation/exhalation valves, cleaned and reused) as a safer alternative to disposable respirators (known as N-95s). A perceptive trial court judge applied category…
An animal study examining the purported link between high sucrose intake and the development of mammary gland tumors has attributed the effect in part “to increased expression of 12-lipoxygenase (12-LOX) and its arachidonate metabolite 12-hydroxy-5Z,8Z,10E,14Z-eicosatetraenoic acid (12-HETE).” Yan Jiang, et al., “A Sucrose-Enriched Diet Promotes Tumorigenesis in Mammary Gland in Part through the 12-Lipoxygenase Pathway,” Cancer Research, January 2016. University of Texas MD Anderson Cancer Center researchers used several mouse models--“including a mouse mammary gland tumor model that carries a MMTV/unactivated neu transgene, a human triple-negative breast cancer cell (MDA-MB-231) orthotopic mouse model, and a breast cancer lung metastasis mouse model (injected with 4T1 mouse breast cancer cells)”--to identify a potential mechanism by which a sucrose-enriched diet contributes to tumor genesis and metastasis. The study reports that 50 to 58 percent of mice on a sucrose-enriched diet developed mammary tumors, compared to 30 percent on a starch-control diet. It also…
Plain food packaging for snack foods decreases purchase intention and brand perception but increases actual consumption among some consumers, according to French and Belgian researchers. Carolina O.C. Werle, et al., “Is plain food packaging plain wrong? Plain packaging increases unhealthy snack intake among males,” Food Quality and Preference, December 2015. Billed as the first to examine “the impact of plain packaging on consumers’ perceptions and actual consumption of unhealthy food items,” the study used brand- and plain-packaged M&M’s® to explore the effects of plain packaging on (i) product and brand attitudes as well as the intention to consume an unhealthy snack, (ii) food intake once consumers have sampled the product, and (iii) food intake when plain packaging is combined with low-fat claims. The results evidently indicate plain food packaging “negatively impacts product and brand attitudes as well as intention to consume an unhealthy snack when consumers only evaluate the packaging.”…
“Cancer and Diet: The Latest on Processed Meats, Fats and More” is the title of a January 15, 2016, live forum hosted by the Harvard T.H. Chan School of Public Health. Webcast faculty, including Harvard Professors Walter Willett and Frank Hu, will discuss the World Health Organization’s classification of processed meat as a “Group 1” carcinogen and the 2015-2020 Dietary Guidelines for Americans, among other topics. Willett and Hu were quoted in a January 8 Time article about the role of food industry influence on the new guidelines. Issue 589
New York University Professor Marion Nestle has penned an opinion article in the January 2016 edition of JAMA Internal Medicine criticizing industry-backed food studies. Pointing to research reviews posted on her Food Politics blog, Nestle alleges that 70 out of 76 industry-funded studies published between March and October 2015 “reported results favorable to the sponsor’s interest.” “In the studies I collected, companies or trade associations promoting soft drinks, dairy foods, eggs, breakfast cereals, pork, beef, soy products, dietary supplements, juices, cranberries, nuts, and chocolates supported the study itself, the investigators, or both,” she said in the commentary. “These studies all found significant health benefits or lack of harm from consuming the foods investigated, results that can be useful for deflecting criticism of a company or promoting its products.” Based on her findings, Nestle urges journals to consider whether submitted work promotes public health or food marketing. “Journal editors should ensure…
A plaintiff has filed two similar lawsuits against H.J. Heinz Co. and Rockstar, Inc. alleging the companies’ products wrongfully bear “Made in the USA” label claims because they contain “foreign ingredients.” Alaei v. Rockstar, Inc., No. 15-2959 (S.D. Cal., filed December 31, 2015); Alaei v. H.J. Heinz Co., No. 15-2961 (S.D. Cal., filed December 31, 2015). Heinz 57® sauce, one complaint argues, is misrepresented as manufactured in the United States because some of its ingredients, including “turmeric, tamarind extract, and jalapenos, among other ingredients,” are “not from the United States.” Similarly, Rockstar’s Sugar Free beverage, described as “Made in the USA” on the label, contains “various amounts of taurine, guarana seed extract, and milk thistle extract, which, among other ingredients in Defendants’ products, are not from the United States.” These foreign ingredients, the complaint argues, are problematic because they are not subject to the same strict regulatory requirements and “are…
A consumer has filed a proposed class action against Trader Joe’s Co. alleging the company sells 5-ounce cans of store-brand tuna filled with only 3 ounces of product. Magier v. Trader Joe’s Co., No. 16-0043 (S.D.N.Y., filed January 5, 2016). According to the complaint, “Independent testing by the U.S. National Oceanic and Atmospheric Administration (NOAA) determined that, over a sample of 24 cans, 5-ounce cans of Trader Joe’s Albacore Tuna in Water Salt Added contain an average of only 2.61 ounces of pressed cake tuna when measured precisely according to the methods specified by [the federal statute].” The complaint further alleges similar NOAA test results for six other Trader Joe’s tuna products, amounting to breach of warranties, unjust enrichment, negligent misrepresentation, fraud and violations of New York’s consumer-protection statute. The plaintiff seeks class certification, declaratory judgment, compensatory and punitive damages, an injunction, attorney’s fees and a jury trial. Issue…
Chipotle Mexican Grill has reportedly been served with a grand jury subpoena as part of a U.S. Attorney’s Office and Food and Drug Administration criminal investigation into a California norovirus outbreak in August 2015 that sickened more than 200 people. The company’s fare was also linked to a norovirus outbreak in Massachusetts in December 2015. Chipotle’s food safety practices face additional scrutiny over an ongoing E. coli outbreak that has resulted in the closure of 43 Chipotle locations in Washington and Oregon and reports of related illnesses in several other states. See The New York Times, January 6, 2016. In a January 6 Form 8-K filing with the U.S. Securities and Exchange Commission, Chipotle reported a 14.6 percent drop in fourth quarter 2015 sales and non-recurring expenses related to its foodborne illness incidents of $14 to $16 million. Meanwhile, Pomerantz LLP announced on January 8 that it has filed a…
The nonprofit advocacy group Physicians Committee for Responsible Medicine (PCRM) has brought suit in the U.S. District Court for the Northern District of California seeking to prevent the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) from adopting a recommendation of the 2015 Dietary Guidelines Advisory Committee (DGAC). The DGAC is a joint committee formed by USDA and HHS that recommended the agencies drop from the newly issued 2015-2020 Dietary Guidelines for Americans the advice that healthy individuals limit their daily dietary cholesterol consumption to 300 milligrams per day. PCRM seeks to permanently enjoin the agencies from incorporating the recommendation into the guidelines and to instead maintain current recommended daily limits. The complaint alleges the data underlying the DGAC’s recommendation is not “fairly balanced” within the meaning of the Federal Advisory Committee Act because it omits evidence unfavorable to the egg industry. Rather, PCRM contends that the DGAC…
