California Assembly Member Mike Gatto (D-Glendale) has introduced a bill (A.B. 14) that would require the labeling of food grown using recycled or treated water from oil and gas field activities. “No one expects their lettuce to contain heavy chemicals from fracking wastewater,” Gatto said. “Studies show a high possibility that recycled oil field wastewater may still contain dangerous chemicals, even after treatment.” The proposed label would state: “Produced using recycled or treated oilfield wastewater.” See Press Release of Assembly Member Mike Gatto, August 17, 2015. Issue 576
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U.S. Sens. Dianne Feinstein (D-Calif.), Kirsten Gillibrand (D-N.Y.) and Elizabeth Warren (D-Mass.) have authored an August 17, 2015, letter expressing concern that the U.S. Department of Health and Human Services, U.S. Department of Agriculture and U.S. Department of Defense have not yet responded to an executive order establishing a Presidential Advisory Council on Combatting Antibiotic-Resistant Bacteria. According to the letter, which claims that food animal production accounts for 75 percent of “medically important antibiotics sold each year,” the appointed agencies have failed to provide a formal response or approve nominations for advisory council members. In particular, the senators ask that the final council include at least three experts from outside the food industry. “As noted in our December 2014 letter, representatives from industrial animal producers associations and the veterinary drug industry have publically voiced doubts about the need to reduce antibiotic use in animals and about the impact that the…
The U.S. Food and Drug Administration (FDA) has published a July 31, 2015, warning letter targeting the use of whole stevia leaf in food and beverages. Issued to Ten Ren Tea Co. of San Francisco, Ltd., the letter claims that tea products containing “Stevia leaf, tea bag cut” are adulterated under the Federal Food, Drug, and Cosmetic Act “because they bear or contain an unsafe food additive.” “Any substance added to a conventional food, such as your Ten Ren Chrysanthemum Tea and Hibiscus Spice Tea, must be used in accordance with a food additive regulation, unless the substance is the subject of a prior sanction or is generally recognized as safe (GRAS) among qualified experts for its use in foods [21 CFR 170.30(g)],” notes the agency, which has only permitted highly-refined stevia preparations in specific applications. “[W]e are not aware of any basis to conclude that Stevia leaf is GRAS…
The University of Connecticut Rudd Center for Food Policy & Obesity has issued a report claiming that food companies “disproportionately target their TV advertising for fast food, candy, sugary drink and snack brands to black and Hispanic consumers.” Focusing on restaurant, food and beverage companies that spent at least $100 million on advertising in 2013 as well as participants in the Children’s Food and Beverage Advertising Initiative, the report reviews the number of advertisements for fast food, sugar-sweetened beverages, snack foods, dairy products, 100-percent juice, water, fruits and vegetables that appeared on “Spanish-language TV and black-targeted TV programming.” The authors also used syndicated market research data from Nielsen to compile media spending by brand and product, in addition to estimating “exposure to TV advertising by black, Hispanic, and all children and adolescents in 2013.” In particular, the report notes that 26 companies spent $675 million in food-related advertising on Spanish-language…
A consumer has filed a lawsuit against Fifth Generation, Inc. alleging that its Tito’s Handmade Vodka® is not “handmade” as claimed on the label because it is produced through a mechanized process. Wilson v. Fifth Generation, Inc., No. 15-561 (M.D. Ala., filed August 5, 2015). The complaint joins a number of other lawsuits alleging similar facts and claims against Tito’s Handmade Vodka®. Fifth Generation has filed a motion to dismiss a similar lawsuit in Massachusetts federal court, arguing that the claims have “no basis in law or common sense” and no reasonable person could believe that a product sold nationally “was made exclusively in human hands in some backwoods, ad hoc operation, without any mechanical equipment.” Emanuello v. Fifth Generation, Inc., No. 15-11513 (D. Mass., motion filed August 5, 2015). In May and July 2015, courts dismissed lawsuits targeting “handmade” claims made on Maker’s Mark® labels, finding that the “handmade” claim “obviously cannot…
Environmental group As You Sow has filed a 60-day notice of intent to sue the manufacturer of Soylent, a food substitute product, for alleged failure to warn that the powder contains lead and cadmium exceeding levels considered safe under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The product at issue is Soylent 1.5, which As You Sow alleges contains 12 to 25 times the safe-harbor level of lead and four times the safe-harbor level of cadmium, according to two samples reportedly tested by an independent laboratory. “These heavy metals accumulate in the body over time and, since Soylent is marketed as a meal replacement, users may be chronically exposed to lead and cadmium concentrations that exceed California’s safe harbor level (for reproductive harm),” As You Sow CEO Andrew Behar said in an August 12, 2015, press release. “With stories about Silicon Valley coders sometimes eating three…
A California federal court has denied a plaintiff’s attempt to obtain Bigelow’s financial records in a putative class action alleging that the company mislabeled its tea. Khasin v. R.C. Bigelow Inc., No. 12-2204 (N.D. Cal., order entered August 12, 2015). The plaintiff argued that the records would help him calculate what portion of the profits he would seek. The court sided with Bigelow, which argued that “its profits and costs are irrelevant because the proper measure of restitution in a food labeling case is the price premium attributable to the challenged label (the difference between the product as labeled and the product as received), not its profits.” The court then cited a similar decision in another food labeling lawsuit with the same plaintiff. Issue 575
The U.S. Judicial Panel on Multidistrict Litigation has consolidated 11 putative class actions against Kind LLC alleging that its snack bars are misleadingly marketed as “healthy” despite a high saturated fat content and low levels of nutrients. Kind LLC “All Natural” Litigation, MDL No. 2645 (S.D.N.Y., transfer order entered August 7, 2015). The court found that the actions involved common questions of fact, and all parties favored centralization except one plaintiff who did not oppose the motion. The lawsuits were filed after the U.S. Food and Drug Administration sent a letter to Kind warning against the use of “healthy” on several of its products. Details about the first of these lawsuits appear in Issue 562 of this Update. Issue 575
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety, National Oceanic and Atmospheric Administration and the U.S. Food and Drug Administration have announced a September 24, 2015, public meeting in College Park, Maryland, to discuss draft U.S. positions for consideration at the 34th Session of the Codex Committee on Fish and Fishery Products (CCFFP) slated for October 19-24 in Alesund, Norway. The CCFFP develops global standards for fresh, frozen (including quick frozen) or otherwise processed fish, crustaceans and molluscs. Agenda items at the September gathering will include draft codes of practice for processing of fish sauce and processing of fresh and quick-frozen raw scallops as well as proposed food additive provisions in standards for fish and fishery products. See Federal Register, July 30, 2015. Issue 575
The U.S. Department of Agriculture (USDA) is soliciting nominations for five open slots on the National Genetic Resources Advisory Council (NRGAC), a subcommittee of the National Agricultural Research, Extension, Education, and Economics Advisory Board. NRGAC members are charged with recommending policies for collecting, maintaining and utilizing genetic resources as well as considering approaches for their conservation. The agency is specifically looking for three candidates with scientific backgrounds (i.e., agricultural sciences, environmental sciences, natural resource sciences, health sciences, nutritional sciences) and two candidates representing the general public. The deadline for nominations is August 28, 2015. See Federal Register, August 10, 2015. Issue 575
