The Center for Food Safety and Center for Environmental Health have filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) alleging that the agency has unlawfully delayed adopting implementing regulations under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., filed August 29, 2012). According to the complaint, FDA has missed seven statutory deadlines thus “failing to implement FSMA’s major food safety regulations.” Characterizing the failure as “an abdication of the agency’s fundamental responsibilities,” the plaintiffs claim that this delay “is putting millions of lives at risk from contracting foodborne illnesses.” They also sued the Office of Management and Budget, claiming that it has also missed statutory deadlines in failing to approve the implementing regulations that FDA has submitted for its review. The complaint recites Centers for Disease Control and Prevention estimates that one in six Americans…
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A federal court in California has granted in part the motion to dismiss filed by the defendant in a putative class action alleging that it falsely misrepresents its smoothie kits as “All Natural” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides.” Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., order entered August 25, 2012). Additional information about the case appears in Issue 432 of this Update. The court agreed with Jamba Juice that the plaintiff had failed to state a warranty claim under the Magnuson-Moss Warranty Act, because “the statement ‘All Natural’ is a general product description rather than a promise that a product is defect free.” Still, the court dismissed the plaintiff’s claim for breach of express warranty under the Act with leave to amend “to the extent some other basis may exist for this…
The Seventh Circuit Court of Appeals has determined that a Steak 'n Shake franchisee in Illinois was entitled to a preliminary injunction to stop the implementation of a new Steak 'n Shake policy for menu pricing and promotions. Stuller, Inc. v. Steak N Shake Enters., Inc., No. 11-2656 (7th Cir., decided August 24, 2012). The franchisee, in operation for more than 70 years, owns five restaurants and is the oldest Steak 'n Shake franchisee in the country. While Steak 'n Shake controls many aspects of restaurant management, some aspects are left to individual franchisees. Plaintiff Stuller, Inc. has had the ability to set menu prices throughout its history, but in June 2010, Steak 'n Shake demanded that all franchisees follow its menu pricing and promotions. Stuller brought a declaratory judgment action against Steak 'n Shake after the franchisor threatened to terminate Stuller’s franchises for refusing to implement the new policy. The…
A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.” The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on…
Following the Irish Environmental Protection Agency’s (EPA’s) decision to allow genetically modified (GM) potato trials in County Carlow, a group of environmentalists and organic producers reportedly mounted a legal challenge under the Aarhus Convention which allows environmental legal issues to be pursued under a “non-prohibitively expensive order.” According to a press report, Mr. Justice Gerard Hogan indicated that he lacked jurisdiction to make such an order, but gave the group leave to provide short notice to the EPA of its intention to challenge the costs issue. Ratified in June 2012 and not yet evidently part of Irish law, article 9 of the convention apparently gives those challenging “critical environmental decisions” the ability to be heard in court without the threat of large legal costs if they lose. EPA’s consent to the GM trials is reportedly subject to eight conditions that include reporting requirements and trial management, and the land will be…
The City of Lakewood, Colorado, has reportedly adopted an ordinance that will subject soft drinks and candy to a 3 percent city sales tax. The tax code change was apparently considered and approved during the city council’s August 27, 2012, meeting. The ordinance is intended to align the city’s taxation of food with the state by exempting sales of food for immediate consumption from sales tax, while taxing soda and candy. According to a news source, the change takes effect in 30 days. See ABC7News, TheDenverChannel.com, August 28, 2012.
The Center for Food Safety has issued a paper critical of the draft report prepared by the U.S. Department of Agriculture’s (USDA’s) Advisory Committee on Biotechnology and 21st Century Agriculture (AC21), which was scheduled to meet August 27-28, 2012, to discuss the draft. According to the advocacy organization, USDA “has increasingly strayed from its role as ‘enhanc[er of] economic opportunities for US farmers and ranchers,’ by continuing to allow genetically engineered (GE) seeds, pollen, and plants to contaminate our nation’s farms without restraint.” In particular, the center calls AC21’s “co-existence” approach to organic, conventional and GE farming “a thinly veiled attempt to sanction allowable amounts of GE contamination in food by establishing a universal GE contamination threshold.” The paper contends that compensating conventional and organic farmers whose crops are contaminated by drifting GE pollen will not address the losses sustained when other countries ban all U.S. seed and crop imports. “Even…
Citizens for Health has filed a citizen’s petition with the Food and Drug Administration (FDA) requesting that the agency amend its high fructose corn syrup (HFCS) regulations. The requested changes would require food producers (i) using HFCS, to identify its concentration f ructose on product labels (e.g., HFCS with 42 percent fructose would be labeled “high fructose corn syrup 42”), and (ii) manipulating the mount of fructose in HFCS “to a different concentration than a standardized blend of 42 or 55,” to also incorporate the concentration into he ingredient name (e.g., HFCS with 90 percent fructose would be labeled “high fructose corn syrup 90”). Citizens for Health also asked that FDA initiate enforcement actions against food companies using HFCS with fructose in amounts other than 42 or 55 percent because these are the concentrations FDA has apparently designated as generally recognized as safe. According to the petition, numerous online articles…
New York University researchers using the Avon Longitudinal Study of Parents and Children with data on more than 11,000 children have purportedly found a consistent association between antibiotic exposure in the first six months of life with “elevations in body mass index with overweight and obesity from ages 10 to 38 months.” L. Trasande, et al., “Infant antibiotic exposures and early-life body mass,” International Journal of Obesity, August 21, 2012 (online). The researchers suggest that the administration of antibiotics during early life, “a critical period for gut colonization,” may disrupt “ancient patterns of intestinal colonization.” U.S. farmers since the late 1940s have apparently given low-dose antibiotics to domesticated mammalian and avian species to hasten weight gain with the understanding that “alterations in the microbiota change ‘feed efficiency.’” Thus, the researchers explored the possibility of similar effects in human children. According to lead researcher Leonardo Trasande, “Microbes in our intestines may…
The Yale Rudd Center for Food Policy & Obesity has posted its fall 2012 speakers schedule, noting that the center “welcomes speakers from different disciplines to present and discuss their work and its implications for the study of obesity and food policy.” Among those on the roster are Harvard Business School Assistant Professor Jason Riis, “Field Studies of Consumer Behavior in Food Retail Settings,” September 12; University of Washington Clinical Professor James Krieger, “Using Policy and Systems Changes to Create Healthy Environments at the Local Level,” October 10; Northwestern University Psychology Professor Ellen Wartella, “Media Characters: The Unhidden Persuaders in Food Marketing to Children,” October 17; Mathematica Policy Research Senior Fellow Ronette Briefel, “National Data to Inform Childhood Obesity Prevention Strategies: Beverage, Dietary, and Activity Practices at Home and School,” November 7; and University of Pennsylvania Media & the Developing Child Director Amy Jordan, “Testing the Effectiveness of Public Service…
