The Tenth Circuit Court of Appeals has determined that a 2008 E. coli outbreak involving food prepared and served at a restaurant and a catered event constituted a single occurrence under the relevant insurance policies, thus reversing a magistrate judge’s conclusion that there were two occurrences and application of the policies’ aggregate limits rather than their “per occurrence” limits. Republic Underwriters Ins. Co. v. Moore, No. 11-5075 (10th Cir., decided July 20, 2012). The outbreak apparently infected 341 individuals, and one person died. When it appeared that the policy limits would be exceeded, the insurers brought this interpleader action, requesting that the court declare that the “per occurrence” limits applied, providing $3 million in coverage. Agreeing with the insurance companies, the Tenth Circuit stated, “[h]ere, all the injuries were proximately caused by the restaurant’s ongoing preparation of contaminated food. Hence, there was but one occurrence. It does not matter that…
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Chilean Senator Guido Girardi has reportedly filed a formal complaint with the country’s Ministry of Health, alleging that fast-food companies have violated a new ban on using toys and other giveaways to market children’s meals. According to media sources, the complaint claims that several fast-food restaurants have flouted the law, along with other food manufacturers that purportedly use crayons, stickers and similar incentives to market products which appeal to children. Girardi has asked the Ministry of Health to enforce sanctions if the companies named in the complaint do not begin complying with the toy ban. “These businesses know that this food damages the health of children and they know that the law is in effect. They’re using fraudulent and abusive means,” said Girardi, who apparently drafted the law. “These corporations threatened that if the law was approved there would be no more money for children’s foundations, the sick, or athletes, but…
As part of an ongoing food additive assessment, the European Food Safety Authority (EFSA) has requested additional scientific data on aspartame “related to 5-benzyl-3,6-dioxo-2-piperazine acetic acid (DKP) and other primary or secondary degradation products from aspartame.” Asked by the European Commission in 2011 to reevaluate the safety of aspartame as a food additive, EFSA’s Scientific Panel on Food Additives and Nutrient Sources Added to Food initially called for aspartame data by September 30, 2011, but has since determined that there is further need for “data on products which can be formed from aspartame in different types of foodstuffs, in particular on [DKP], depending [for example] on pH, temperature and storage time.” As a result, EFSA has delayed its findings and instead requested data on “the presence and levels of DKP found in aspartame-containing foodstuffs (including beverages) found on the market” as well as “the formation of DKP and other primary…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) and U.S. Environmental Protection Agency (EPA) have announced the availability of a guideline “for conducting microbial risk assessment (MRA).” Intended for government risk assessors and other public stakeholders, the guidance seeks to promote transparency and consistency between the two agencies as they conduct risks assessments of food- and water-borne disease. According to a July 31, 2012, EPA press release, the MRA guideline for the first time “lays out an overarching approach to conducting meaningful assessments of the risks to Americans posed by pathogens in food and water.” The agency has also touted the measure as a way to improve the quality of data “collected by public health scientists charged with protecting Americans from pathogen-related risks in food and water.” “This guidance contributes significantly to improving the quality and consistency of microbial risk assessments, and provides greater transparency to stakeholders…
The U.S. Department of Agriculture’s National Organic Program (NOP) has issued a final rule revising the National List of Allowed and Prohibited Substances with regard to the use of tetracycline, formic acid and attapulgite during the production and processing of organic crops and food ingredients. According to NOP, the most recent iteration of the National List permitted the use of tetracycline “for fire blight control only” in apple, pear and other organic fruit crops until October 21, 2012. The final rule has amended the National List to specify that the substance can be used to control fire blight in apple and pear crops only and to extend the expiration date until October 12, 2014. In addition, NOP has added formic acid to the National List “solely for use as a pesticide within honeybee colonies” to suppress infestations of Varroa mites and approved attapulgite, a substance generally regarded as safe by the…
The U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) has determined that genetically engineered (GE) sugar beets are “no longer considered a regulated article under our regulations governing the introduction of certain genetically engineered organisms.” According to the agency, the crop, which is engineered to tolerate the herbicide glyphosate and is known as “Roundup Ready®, is “unlikely to pose a plant pest risk and, in fact, is not a plant pest.” Thus, the crop is no longer subject to federal GE regulation. The determination ends a lengthy dispute that began when organic farmers claimed that APHIS failed, when deregulating the crop in 2005, to properly consider the crop’s propensity to cross-pollinate nearby fields of conventional sugar beets and the likelihood that herbicide resistant weeds would also result from planting the GE crop. A federal court agreed and ordered the preparation of an environmental impact statement (EIS).…
FDA has issued a request for comments on a proposed information collection that will add the manufacturers of certain beers as respondents to its labeling regulations and seeks Office of Management and Budget approval of allergen labeling for these beers. The agency explains that after the Alcohol and Tobacco Tax and Trade Bureau determined that certain beers, which are made from substitutes for malted barley, such as sorghum, rice or wheat, do not meet the definition of “malt beverage” and are thus not subject to its regulations, the Food and Drug Administration (FDA) prepared draft guidance to assist these manufacturers in complying with its labeling regulations. On the basis of the labeling regulations discussed in the guidance, the agency provides estimates of the average burden per disclosure for each regulation— that is, “12 respondents will each label 2 products annually, for a total of 24 labels” and “the manufacturers will…
The Government Accountability Office (GAO) has issued a July 26, 2012, report criticizing the Food and Drug Administration’s (FDA’s) efforts to implement a comprehensive food advisory and recall process. As directed by the FDA Food Safety Modernization Act, GAO reportedly assessed the agency’s ability to order recalls and effectively inform consumers and retailers about food safety issues, concluding that although FDA has established internal procedures “describing the steps it will take to order a food recall ... these procedures are not yet public and the agency has not issued regulations or industry guidance to clarify its ordered food recall process.” In particular, the report faults FDA for failing to fashion “a comprehensive food recall communication policy and related implementation plans.” Noting that recent foodborne illness outbreaks have drawn national attention to food supply safety issues, GAO argues that FDA has not yet drafted measures to better manage its communication challenges or…
Representative John Carter (R-Texas) has introduced a bill (H.R. 6174) that would change the nutrition disclosure requirements for chain restaurants and other food outlets enacted in the Affordable Care Act that was recently upheld as constitutional by the U.S. Supreme Court. Under the proposal, (i) delivery and take-out restaurants would be able to post calorie information on their websites; (ii) pizza shops would be allowed to provide calorie-per-slice labeling rather than whole-pizza totals and could publish average totals instead of calorie data for every possible combination of ingredients; (iii) stores would be protected from lawsuits where the nutrient disclosures are “within acceptable allowances” including “allowances for variation in serving size, inadvertent human error in formulation of menu items, and variations in ingredients”; and (iv) the term “restaurant” would be redefined to mean “a retail food establishment that derives more than 50 percent of its total revenue from the sale of…
A Yale University Rudd Center for Food Policy and Obesity study has compared the U.S. food industry’s “Facts Up Front” labeling scheme to the “Multiple Traffic Light” system used in the United Kingdom, concluding that consumers found both front-of-package systems easier to use than no labels at all, while an enhanced Traffic Light system yielded “the best overall performance.” Christina Roberto, et al., “Facts Up Front Versus Traffic Light Food Labels,” American Journal of Preventative Medicine, July 2012. Researchers asked 708 adults in an Internet-based survey to compare the nutrient levels of foods as well as estimate saturated fat, sugar, sodium, fiber and protein contents using one of five systems: (i) no label; (ii) Traffic Light; (iii) Traffic Light “plus information about protein and fiber (Traffic Light+)”; (iv) Facts up Front; or (v) Facts Up Front “plus information about ‘nutrient to encourage’ (Facts Up Front+).” The results evidently indicated that respondents…
