The Federal Trade Commission (FTC) has apparently proposed amending its advertising guidelines to hold companies and paid word-of-mouth marketers, including bloggers and those on social networking sites, liable for making false statements to promote products. According to an FTC spokesperson, the proposal would bring the commission up to speed with evolving marketing practices. “The commission is attempting to update guidelines that are 30 years old so that they address current marketing techniques and in particular to address the issue of whether or not the safe harbor that’s currently allowed for ‘result not typical’-type disclaimers is still warranted,” he was quoted as saying. Meanwhile, a public comment submitted by the American Association of Advertising Agencies has reportedly urged FTC to reconsider “overly stringent amendments that will likely result in advertisers abandoning longstanding legitimate advertising techniques, such as consumer testimonials, and rejecting new media forms, such as blogs and viral marketing.” The…
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The D.C. Circuit Court of Appeals has determined that the owners of a dairy are not required to first exhaust administrative remedies before bringing a constitutional challenge to Agricultural Marketing Agreement Act amendments. Hettinga v. U.S., No. 07-5403 (D.C. Cir., decided April 3, 2009). The amendments codified certain rule changes that the Secretary of Agriculture made to a program that regulates payments from milk handlers (processors and distributors) to milk producers (farmers) and is intended to protect producers from price fluctuations. The plaintiffs sought an injunction against enforcement of the secretary’s rule, and, while that proceeding was pending before a federal court in Texas, Congress amended the law. The plaintiffs then filed a complaint in a D.C. district court alleging that “the Amendments are unconstitutional as a bill of attainder and a denial of due process and equal protection because only the Hettingas are subject to them.” The district court…
The Office of the Acting Deputy Undersecretary for Food Safety, U.S. Department of Agriculture and U.S. Food and Drug Administration have announced a public meeting on April 29, 2009, to discuss draft U.S. positions for the 18th Session of the Codex Committee on Residues of Veterinary Drugs in Foods (CCRVDF) slated for May 11-15, 2009, in Natal, Brazil. CCRVDF works to (i) establish “priorities for the consideration of residues of veterinary drugs in foods”; (ii) “recommend maximum levels of such substances”; (iii) “develop codes of practice as may be required”; and (iv) consider methods of sampling and analysis for the determination of veterinary drug residues in foods.” The session will include agenda items related to (i) the “registration of veterinary medicinal products”; (ii) “draft guidelines for the design and implementation of national regulatory food safety assurance programs”; and (iii) a “draft priority list of veterinary drugs requiring evaluation or reevaluation.”…
California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the deadline for public comment on its notice of intent to list 4- methylimidazole (4-MEI) as a chemical known to the state to cause cancer under Proposition 65 (Prop. 65). The new deadline is May 29, 2009. According to a news source, the proposed intent to list has generated significant opposition from grocers and other food industry representatives who argue that the chemical, which is found in foods such as wine, soy sauce and Worcestershire sauce after cooking, “is just the latest in a series of near-ubiquitous chemicals created as an unavoidable consequence of heating the natural constituents of foods.” Once a chemical is listed under Prop. 65, products containing the chemical cannot be sold without warnings. The industry groups reportedly contend, “listing 4-MEI can be expected to impact a wide swath of foods by producing warnings, changes in cooking methods,…
The U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) have announced the third meeting of the Dietary Guidelines Advisory Committee charged with revising the Dietary Guidelines for Americans 2005. Slated for April 29 and 30, 2009, the online meeting will include (i) presentations on topics such as “eating environment, economics, nutrient adequacy, and effects of various macronutrient meal plans on weight status”; (ii) progress updates from individual subcommittees; and (iii) plans for future work of the committee. Written comments pertinent to this meeting must be received by 5 p.m. on April 23, although comments will be accepted throughout the committee’s deliberation process. See Federal Register, April 14, 2009.
The U.S. Department of Agriculture’s (USDA) Animal Plant Health Inspection Service has announced a public meeting on April 29 and 30, 2009, in Riverdale, Maryland, to address a proposed rule involving the interstate movement and environmental release of certain genetically engineered (GE) organisms. The comment period on the proposed rule has been extended to June 29, 2009. See Federal Register, April 13, 2009.
Federal Trade Commission (FTC) Chair Jon Leibowitz has reportedly named David Vladeck as director of the commission’s Bureau of Consumer Protection. Vladeck, who leaves the Georgetown University Law Center faculty, is apparently a 30-year veteran of the Public Citizen Litigation Group and, as such, is expected to pursue a consumer-protection agenda. Representatives of other public advocacy organizations are applauding the selection and have expressed their hope that “he will pay special attention to advertising and marketing to children.” Vladeck co-authored a law review article with former Food and Drug Administration Commissioner David Kessler to criticize the preamble to the FDA’s 2006 prescription drug labeling rule, which set forth a pro-preemption policy. In the article, titled “A Critical Examination of the FDA’s Efforts to Preempt Failure-to-Warn Claims,” the authors conclude, “it would be a mistake to preempt state-law failure-to-warn cases, which impose a complementary discipline on the marketplace.” See Advertising Age and…
Researchers from the Centers for Disease Control and Prevention (CDC) recently published a study identifying perchlorate in 15 brands of powdered infant formula (PIF), which included products made from cow’s milk with lactose; cow’s milk without lactose; soy milk; and synthetic amino acids (elemental). Joshua G. Schier, “Perchlorate Exposure From Infant Formula and Comparisons With the Perchlorate Reference Dose,” Journal of Exposure Science and Environmental Epidemiology, March 18, 2009. The study authors purportedly found that some PIF samples exceeded the daily reference dose of 0.7 µg/kg per day set by the Environmental Protection Agency. More than one half of the formulas would exceed the reference dose when reconstituted with drinking water contaminated with 4 µg/l of perchlorate, according to the study. The CDC researchers have reportedly claimed that the two brands with the highest perchlorate levels comprise approximately 87 percent of the powdered milk market in the United States. Scientists…
The U.S. Food Policy blog has posted a response to the announcement that Disney Food, Health & Beauty would begin marketing a line of “farm fresh” eggs branded with a rotating cast of cartoon characters. According to Disney Food, the available products will include Large, Extra Large, 18-pack Large, Disney Cage Free, and Disney Organic eggs, all produced by hens raised without hormones, steroids or antibiotics and fed Eggland’s Best patented feed containing “healthy grains, canola oil, and an all-natural supplement of rice bran, alfalfa, sea kelp, and vitamin E.” But the marketing plan has drawn criticism from one blog contributor, who blamed the egg supplier for furthering “the agrarian myth that people’s food is coming from an idealistic farm with a red barn” and who questioned the motives behind Disney’s foray into food marketing. “I side with Marion Nestle on the point that kids don’t need special ‘kid-friendly’ foods…
Campaign for a Commercial-Free Childhood (CCFC) has launched a letter-writing initiative to dissuade Burger King from using a “highly sexualized” television commercial to advertise its 99-cent SpongeBob Kids Meal. According to CCFC, the ad features Burger King’s mascot “singing a remix of Sir Mix-A-Lot’s 1990 hit song, ‘Baby Got Back,’ with the new lyrics, ‘I like square butts and I cannot lie,” intercut with images of Nickelodeon’s popular cartoon character dancing on a TV screen in the background. The consumer watchdog has also criticized Burger King for airing the commercial during the NCAA basketball finals. “It’s bad enough when companies use a beloved media character like SpongeBob to promote junk food to children, but it’s utterly reprehensible when that character simultaneously promotes objectified, sexualized images of women,” CCFC Director Susan Linn was quoted as saying. “That Burger King and Nickelodeon would sell kids meals by associating a beloved, male character…
