A fractured Fifth Circuit Court of Appeals has determined that claims alleging violation of the Packers and Stockyards Act of 1921 must be supported by proof of injury, or likelihood of injury, to competition. Wheeler v. Pilgrim’s Pride Corp., No. 07-40651 (5th Cir., decided December 15, 2009). The issue arose from a complaint filed by certain poultry “growers,” alleging under the Act that another grower “was given a contract [with defendant] on preferable terms.” The district court and a Fifth Circuit panel concluded that the Act did not require a showing of adverse effect on competition and allowed the claims to proceed. The appeals court, in a 9-7 decision, reversed, finding the district court erred in denying defendant’s motion for summary judgment. Four judges joined the majority opinion but authored a concurrence to more clearly discuss the statutory interpretation principles at issue in the case. The dissenting judges, relying on…
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The Office of Environmental Health Hazard Assessment (OEHHA) of California’s Environmental Protection Agency has proposed implementing Proposition 65 (Prop. 65) food warnings as a pilot program that will expire in 4-5 years. The proposal was presented during the agency’s last informal stakeholder meeting before final regulatory language is drafted. Under Prop. 65, warnings must be provided on products containing chemicals known to the state to cause cancer or reproductive harm. OEHHA has been considering for some time how manufacturers and retailers can provide warnings to consumers about the chemicals in foods that are on the Prop. 65 list. Comments may be submitted until January 29, 2010. The pilot program will allow the agency “to make some basic assumptions about the level of participation and coverage of the program, and then test them out over the ‘pilot’ period.” Under the proposal, manufacturers would make product-specific information available to retailers through a central…
EU ambassadors this week signed an agreement with Latin American and U.S. officials to end “a 15-year dispute over EU banana imports,” according to a December 15, 2009, press release, which described the impasse as “the longest trade dispute in history.” The European Union has apparently agreed to “gradually cut its import tariff on bananas from Latin America from €176 per tonne to €114,” in addition to providing €200 million to African and Caribbean banana-exporting countries “to help them adjust to stiffer competition from Latin America.” In return, Latin American countries will “not demand further cuts” and the United States has consented to drop its World Trade Organization (WTO) complaint against Europe’s banana importation practices. “This dispute on bananas has soured global trade relations for too long,” stated EU Agriculture and Rural Development Commissioner Mariann Fischer Boel, who noted that the accord was “well-balanced” and likely to further European objectives…
U.S. Department of Agriculture (USDA) Secretary Tom Vilsack recently announced an agreement with dairy producers “to accelerate adoption of innovative manure-to-energy projects,” with the goal of reducing greenhouse gas (GHG) emissions by 25 percent by 2020. USDA has vowed to work with farmers and the Innovation Center for U.S. Dairy to develop and implement anaerobic digester technology, “a proven method of converting waste products, such as manure, into electricity.” According to USDA, only 2 percent of U.S. dairies that are candidates for a profitable digester are currently utilizing the technology, which can generate enough electricity to power 200 homes. The agency’s memorandum of understanding reportedly pledges to “increase the number of anaerobic digesters supported by USDA programs,” as well as develop “new technologies to help dairies reduce greenhouse gas emissions.” “Use of manure to electricity technology is a win for everyone because it provides an untapped source of income for…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has published a supplemental proposed rule that would “require nutrition labeling of the major cuts of single-ingredient, raw meat and poultry products, unless an exemption applies.” FSIS proposed a similar rule in January 2001, and this notice responds to public comments already submitted and “explains how the Agency intends to proceed with a final rule.” Under the proposal, the nutrition facts label would contain information about serving size, calorie content, fat, saturated fat, cholesterol, sodium, carbohydrates, fiber, protein, and vitamins. Additional public comments are solicited and must be submitted by February 16, 2010.
The U.S. Department of Agriculture’s (USDA’s) National Organic Program has reportedly closed its investigation of Target Corp. for erroneously including in newspaper advertisements organic labeling on Silk® soy milk products. The Cornucopia Institute, which charged the retailer with violating federal organic regulations, apparently made public a letter obtained from the USDA indicating that Target admitted the error and is reviewing its processes to ensure the mistake is not repeated. Further details about the institute’s complaint appear in issue 324 of this Update. The organic industry watchdog has been taking a number of initiatives to bring to the public’s attention that the company making Silk® soy milk switched this year from organic to conventional soy beans. See Star Tribune, December 14, 2009; Cornucopia News, December 2009.
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), responding to a directive issued by the Ninth Circuit Court of Appeals, has prepared a draft environmental impact statement (EIS) on genetically engineered (GE) alfalfa. The agency has preliminarily determined that granting GE alfalfa nonregulated status will have “no significant impact on the human environment.” The draft, which runs more than 1,400 pages, will be available for a 60-day public comment period once it is published in the Federal Register. The agency will conduct four public meetings on the proposed EIS; they will take place in January and February 2010 in Las Vegas, Nevada; Kearney, Nebraska; Lincoln, Nebraska; and Washington, D.C. The GE crop at issue is referred to as Roundup Ready® alfalfa, engineered to be resistant to the herbicide glyphosate. The Ninth Circuit enjoined Monsanto from selling the GE seed and farmers from planting it until APHIS…
According to the Food and Drug Administration (FDA), a food importer from Virginia, who was sentenced to five years in prison for conspiring to import falsely labeled catfish from Vietnam to avoid paying import tariffs, has been barred from importing food into the United States for the next 20 years. This action apparently marks the first time the agency used its debarment authority under a law allowing the FDA to “debar a person from importing an article of food or offering such an article for import into the United States if that person has been convicted of a felony for conduct relating to the importation into the United States of any food.” The law also allows debarment in instances of the importation of adulterated food posing “a threat of serious adverse health consequences or death to humans or animals.” FDA reported that Peter Xuong Lam, president of Virginia Star Seafood…
The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) has issued a report criticizing the U.S. Food and Drug Administration’s (FDA’s) food facility registry and traceability standards. According to the report, “FDA requires each domestic food facility to provide information for the registry,” including contact information for the facility, the owner or operator, and the parent company, and an emergency contact. After sampling 130 selected domestic food facilities, OIG concluded that (i) “Seven percent . . . either failed to register or failed to cancel their registration with FDA, as required”; (ii) “Almost half . . . failed to provide accurate information for the registry”; (iii) “FDA regulations do not ensure that the registry contains certain information that may be needed to locate a facility in an emergency”; and (iv) “Over half of the managers . . . were unaware of FDA’s registry requirement.” OIG has…
Representative Dennis Kucinich (D-Ohio) has introduced a bill (H.R. 4310) that would amend the tax code to deny “any deduction for advertising and marketing directed at children to promote the consumption of food at fast food restaurants or of food of poor nutritional quality.” The proposal defines “food of poor nutritional quality” as food “determined by the Secretary (in consultation with the Secretary of Health and Human Services and the Federal Trade Commission) to provide calories primarily through fats or added sugars and to have minimal amounts of vitamins and minerals.” Among those advertising-related expenses that could not be deducted would be travel (including meals and lodging), “goods or services of a type generally considered to constitute entertainment, amusement, or recreation or the use of a facility in connection with providing such goods and services,” gifts, and other promotion expenses. The bill, which has four co-sponsors, was referred to the…
