The U.S. Food and Drug Administration (FDA) has released its Food Code Reference System (FCRS), a searchable database that provides information for industry about FDA’s positions and responses to questions related to the FDA Food Code. With an aim “to promote nationwide consistency and increase transparency about the Food Code,” FCRS contains entries that clarify issues such as (i) storing foods that require temperature control for safety; (ii) food establishment design and food equipment cleaning; (iii) bare hand contact with ready-to-eat foods; and (iv) preventing food contamination. FDA plans to add entries that are “important to the uniform application of the Food Code and that may have implications across all jurisdictions that regulate food establishments.” These entries will reflect questions previously answered by FDA as well as responses to future inquires that FDA receives. The Retail Food Protection Team in FDA’s Center for Food Safety and Applied Nutrition (CFSAN) will…
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The U.S. Food and Drug Administration (FDA) has issued a final rule, effective April 14, 2014, amending its food additive regulations to allow the use of ionizing radiation on crustaceans (e.g., crab, shrimp, lobster, crayfish, and prawns) to control foodborne pathogens and extend shelf life. In response to a petition first filed in 2001, FDA concluded that use of irradiation to treat chilled or frozen raw, cooked or partially cooked crustaceans, or dried crustaceans, with or without spices, minerals, inorganic salts, citrates, citric acid and/or calcium disodium EDTA used in accordance with applicable laws and regulations, is safe, provided that the absorbed dose does not exceed 6.0 kGy. At this dose, FDA notes, ionizing radiation will reduce but not entirely eliminate, the number of illness-causing microorganisms in or on crustaceans. The agency also observes that irradiation is not a substitute for proper food-handling practices and that crustaceans treated with ionizing…
Researchers with Cornell University and the Yale Rudd Center for Food Policy and Obesity have reportedly found that eye contact with cereal box spokes-characters “increased feelings of trust and connection to the brand, as well as choice of the brand over competitors.” Aviva Musicus, et al., “Eyes in the Aisles: Why is Cap’n Crunch Looking Down at My Child?,” Environment and Behavior, 2014. After analyzing 65 cereals in 10 grocery stores, the study’s authors claimed that cereals marketed to children were generally placed on the bottom two shelves and displayed characters featuring “a downward gaze at an angle of 9.67 degrees,” while those marketed to adults were generally placed on the top two shelves and displayed characters featuring a slightly upward gaze at an angle of 0.43 degrees. In addition, the study reported that participants asked to evaluate sample cereal boxes were more likely to choose one brand over another…
A study examining the link between parental body mass index (BMI) and autism spectrum disorders (ASDs) has reportedly claimed that paternal obesity “is an independent risk factor for ASDs in children.” Pal Suren, et al., “Parental Obesity and Risk of Autism Spectrum Disorders,” Pediatrics, April 2014. Noting that previous research focused only on the role of maternal pre-pregnancy obesity in neurodevelopmental disorders, the study’s authors relied on data from 92,909 children enrolled in the Norwegian Mother and Child Study to estimate the relative risk of ASDs using logistic regression models. The results evidently showed that “maternal obesity (BMI ≥30) was only weakly associated with ASD risk, whereas paternal obesity was associated with an increased risk of autistic disorder and Asperger disorder.” In particular, the study reported that (i) the risk of autistic disorder was 0.27 percent in children of obese fathers and 0.14 percent in children of normal-weight fathers, and…
The Natural Resources Defense Council (NRDC) has issued a report claiming that the U.S. Food and Drug Administration’s (FDA’s) generally recognized as safe (GRAS) process for identifying food additives not required to undergo premarket approval is flawed and calling for legislation to change the process. According to NRDC, minimal FDA supervision and “a gaping loophole that allows companies to simply declare as safe hundreds of chemicals added to our foods—without any notification to the FDA or the public,” mar the U.S. food safety protection system. Under federal law, substances added to food are deemed food additives subject to FDA’s premarket approval unless they are considered GRAS by qualified experts or otherwise excluded from the food additive definition. While food companies can notify the agency that experts have made a GRAS determination, the law does not required them to do so. NRDC claims that it has identified “275 chemicals from 56…
The former wife of billionaire Chobani, Inc. CEO Hamdi Ulukaya has alleged that he “boasted on occasions that he had obtained the formula for the Chobani brand of yogurt from [competitor] Fage by bribing a former employee of Fage. He traveled to Europe and bribed this individual with 30,000 Euros.” Giray v. Ulukaya, No. 652838-2012 (N.Y. Sup. Ct., N.Y. Cty., memorandum filed April 3, 2014). She made the allegation in a memorandum of law filed in support of her motion for injunctive relief in litigation seeking a determination that she is a 53 percent shareholder in defendant Euphrates, Inc., the assets of which, she claims, were used to create Chobani. Plaintiff Ayse Giray, a New York physician, also claims that she financed the formation of Euphrates “and is merely claiming what was acknowledged by defendants in writing. The yogurt was based upon a recipe he stole from a competitor, Fage.…
A federal court in California has determined that a consumer case alleging that Safeway was negligent for failing to notify customers of food recalls may proceed. Hensley-MacLean v. Safeway, Inc., No. 11-01230 (N.D. Cal., order entered April 7, 2014). According to the court, Safeway failed to justify a post-sale exception to California’s negligence law, which imposes a general duty of care. The plaintiffs claim that Safeway should—and could easily—notify customers of food recalls after they have purchased the recalled products because Safeway collects contact information from its loyalty card customers. Safeway argued that it had no duty to warn customers after they have taken the products out of the store. Rejecting the company’s argument, the court observed that Safeway could clearly foresee that its customers would consume the products purchased at its stores. The court also identified a number of previous decisions holding that the manufacturer’s duty extends beyond the…
A federal court in California has denied the motion to dismiss putative class claims that Mott’s LLP deceives consumers by placing “No Sugar Added” on its 100% Apple Juice label. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered April 8, 2014). Information about the court’s prior decision dismissing without prejudice most of the claims in the plaintiff’s first amended complaint appears in Issue 511 of this Update. As to the plaintiff’s second amended complaint, the court disagreed with the defendant’s argument that an ongoing U.S. Food and Drug Administration (FDA) rulemaking pertaining to Nutrition Facts label disclosures about the presence or absence of added sugars required dismissal of the action under the primary jurisdiction doctrine. While the court agreed that food regulation is within FDA’s purview, it stated, “plaintiff’s claims do not concern statements made on the apple juice’s Nutrition Facts label; rather, plaintiff’s claims relate to nutrient…
A federal court in California has granted beverage manufacturer Santa Cruz’s motion to dismiss a putative class action alleging that the “evaporated cane juice” (ECJ) listed on its beverage labels is merely sugar, thus violating the Food and Drug Administration’s (FDA’s) required use of an ingredient’s “common or usual name.” Swearingen et al. v. Santa Cruz Natural Inc., No. 13-4291 (N.D. Cal., order entered April 2, 2014). Finding that FDA had primary jurisdiction over the matter, the court cited a March 5, 2014, notice that the agency has reopened the comment period on its draft industry guidance pertaining to the use of the term ECJ on food labels. Details about FDA’s action appear in Issue 516 of this Update. According to the court, this notice clearly indicates that FDA is currently engaged in “active rulemaking on the issue” and intends to resolve the matter. Citing FDA’s superior resources to determine…
The Irwindale, California, City Council has reportedly voted 4-0 to declare that Huy Fong Foods, the maker of Sriracha hot sauce, is maintaining a public nuisance. If the council adopts an official resolution during its next meeting, the company will have some 90 days to mitigate the odor, blamed by local residents for their burning eyes and throats. The council’s action came despite assurances from the company’s lawyer that it planned to submit an action plan within the next two weeks and fix the odor problem by June 1. The South Coast Air Quality Management District has been conducting tests at the facility and claims that the problems could be resolved with active carbon filters. Irwindale has sued the popular hot sauce maker in superior court, claiming that the company breached its development agreement and created a public nuisance. The court granted the city’s request for a preliminary injunction requiring…
