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…
Category Archives Legal Literature
University of Kansas School of Law Professor Andrew Torrance discusses in this article the promises of synthetic biology, which takes genetic engineering (GE) one step further by designing organisms from scratch, and its potential perils. Dubbed “synagriculture,” the new technology is apparently being developed by those dedicated to sharing, spreading and pooling innovative biotechnologies and eschewing patent, copyright, trademark, and trade secrecy to protect inventions. Part of the Do-It-Yourself biology movement, synagriculture, according to the author, represents a democratization of GE crop and livestock development, which some contend has given agricultural companies too much control over farmers. After reviewing an array of GE legal issues, Torrance concludes, “it would be well and wise for the law to prepare itself to reexamine the brave new world of synagriculture with brand new eyes.”
University of Chicago Economics Professor Gary Becker and Seventh Circuit Court of Appeals Justice Richard Posner have posted comments on their blog about New York Mayor Michael Bloomberg’s proposed ban on sugary drinks larger than 16 ounces. Becker concludes that “even when consumer decisions are not in their self-interest, it is questionable whether that provides sufficient grounding for government efforts to regulate and tax these decisions.” His most fundamental concern is that government bureaucrats may not “generally understand why consumers make defective decisions” or whether particular polices will effectively address the issue. He argues, “One should require evidence that the great majority of obese adult individuals do not make the connection with health before trying to restrict their consumption.” And he points out that if 16-ounce drinks are no longer available in New York, consumers may then substitute two 10-ounce drinks and thus increase their total consumption. Justice Posner agrees “that one…
Part II of the American Bar Association’s (ABA’s) Nanotechnology Project, this recently released book comprehensively considers, by product category, how the Food and Drug Administration (FDA) reviews nanotechnology-based products. Shook, Hardy & Bacon Agribusiness & Food Safety Attorney James Andreasen was among those practitioners contributing to the work. Among the chapters are “Color Additives,” “Food Additives and Related Substances,” “Dietary Supplements,” “Food and Animal Feed Products,” and “Biological Products.” They address “how FDA can, and to some extent, has, regulated nanomaterials in products falling under its multiple areas of responsibility,” and (i) identify “products that already feature nanomaterials”; (ii) review “FDA’s regulatory program for the specific product category (such as particular pre-market and post-market controls)”; and (iii) discuss “how that program might apply to nanomaterials.”
In an article titled “Government Can Regulate Food Advertising to Children Because Cognitive Research Shows That It Is Inherently Misleading,” two attorneys and a communications professor assert that the First Amendment is no bar to the regulation of “junk food” ads targeting children younger than 12 because they lack the ability to understand the advertisers’ intent. Because children are unable to effectively comprehend advertising, according to the authors, any commercial messages directed toward them are “inevitably misleading.” The research and article were supported in part by a Robert Wood Johnson Foundation grant. The article first cites research about the amount of time children spend watching TV as well as “more than sixty published studies” purportedly linking TV exposure and obesity. It also discusses the numbers of “low-nutrient, calorie-dense” products advertised to children daily on TV and notes that the most heavily advertised food brands are also promoted online through advergames…
In an article supported, in part, by the Robert Wood Johnson Foundation, authors Jennifer Harris and Samantha Graff suggest that the findings of psychological research about the subliminal effects of food advertising on young people should be considered when advertisers defend their practices by invoking the First Amendment’s commercial speech doctrine. Harris, who is affiliated with Yale University’s Rudd Center for Food Policy, and Graff, with Public Health Law & Policy in Oakland, California, contend that U.S. Supreme Court First Amendment jurisprudence is premised on the understanding that consumers use the free flow of commercial information to make logical decisions. “The commercial speech doctrine is built on a rational choice theory of behavior,” they claim. But because advertisers often resort to newer forms of advertising using “implicit messages” intended to “covertly” influence behavior and because young people are purportedly unable to resist food advertising or consider the content rationally, the…
This article considers how those marketing honey in the European Union (EU) may proceed after the European Court of Justice in September 2011 determined that honey with trace amounts of pollen from genetically modified (GM) corn must undergo a full safety authorization before it can be sold to consumers. Highly critical of the court’s opinion, the author suggests that because it is based on a faulty factual premise involving how honey is produced and harvested, other courts would not necessarily be bound by its interpretation of Regulation (EC) No. 1829/2003, because a proper factual background would present a different case. He calls for amendments to the relevant regulations that would exempt honey from their requirements or establish an upper limit for pollen from GM crops in honey. The author also suggests that honey will be subject to authorization and labeling requirements only if GM-pollen is present and detected. But he…
University of Turin Law Professor Margherita Poto explores the food safety laws in the People’s Republic of China (PRC) and the Special Administrative Region of Hong Kong to set the stage for discussing how their regulatory systems may be sufficiently advanced to address the potential challenges posed by the use of nanotechnology in the food sciences. Her article appears in a special edition of the European Journal of Law & Technology devoted to nanotechnology issues. According to Poto, existing risk analysis rules, registration and traceability requirements and premarket approval should adequately ensure the safety of “nano-foods.” She contends, “Mainland China and Hong Kong are seriously committed to strengthen their regulatory framework in order to protect consumers from unsafe food and this commitment can involve the field of nano-foods, as an integrant part of the novel foods regulation. The regulatory framework may allow PRC, as well as Western countries, to reach…
Glenn Lammi, chief counsel for the Washington Legal Foundation’s Legal Studies Division, has published an article suggesting that if “regulation-by-litigation practitioners” can convince the public and policymakers that “certain foods or substances in foods are ‘addictive,’” lawsuits against food companies are sure to follow. Lammi discusses a November 27 “60 Minutes” report in which a professional flavoring company employee agreed with Morley Safer that the company was “trying to create an addictive taste.” The article also cites studies purportedly showing that foods high in fats and sugars are as addictive as cocaine. According to Lammi, obstacles to such litigation remain. “Liability claims based on consumers’ ‘addiction’ to certain foods would still face substantial hurdles,” he writes, “such as the need to show how an allegedly addictive substance in food caused a plaintiff to become dangerously overweight. Causation is much different from correlation. Lawyers would have to discount the many other…
The most recent issue of the Minnesota Journal of Law, Science & Technology includes an article titled “Food Advertising and Childhood Obesity: A Call to Action for Proactive Solutions.” Co-authored by online law instructor Roseann Termini and Widener University School of Law students Thomas Roberto and Shelby Hostetter, the article explores whether food advertising is related to the epidemic of child obesity and what can be done to reduce its purported effects. Contending that government regulation of food advertisements directed at children is necessary because “children lack the cognitive skills to discern actual nutritional information amidst a veil of attention grabbing marketing techniques,” the authors discuss what regulatory options would best police the industry. While they note the constitutional issues raised by bans or limitations on commercial advertising, the authors apparently see no impediments to government overseeing and enforcing “the internal policies of food manufacturers,” aggressive enforcement of established youth…
