This article comprehensively summarizes the events and proceedings that led Whole Foods Market, Inc. to agree in March 2009 to settle Federal Trade Commission (FTC) charges that its merger with Wild Oats Markets, Inc. violated antitrust laws. According to freelance journalist Jenna Greene, the two-year fight ultimately cost Whole Foods $28 million and resulted in a D.C. Circuit Court of Appeal’s decision “that some fear will make it too easy for the FTC to effectively block future mergers.” She quotes an unnamed antitrust expert who opined, “so long as their lawyers don’t get up there and fall asleep at the podium,” the FTC will win is merger challenges. Apparently, a week after the Whole Foods settlement, a $1.4 billion merger between CCC Holdings and Mitchell International collapsed after it was enjoined by a federal district judge who cited the new Whole Foods standard.
Category Archives Legislation, Regulations and Standards
Food & Water Watch has called on supporters to tell the Food and Drug Administration (FDA) that they do not want milk protein concentrates (MPCs) in their dairy products. According to the advocacy group, unregulated imports of inexpensive MPCs “are driving down the price of domestically produced milk and putting American dairy farmers out of business.” Food & Water Watch also claims, “No one in the government is checking to make sure that they’re safe to eat, and now FDA is thinking about letting them be used to make yogurt.” FDA is apparently considering an industry proposal to change yogurt’s “standard of identity” to allow the use of MPCs. The organization explains in its call for action how MPCs are created and then used as an additive in processed cheeses, frozen dairy desserts, crackers, and energy bars. While most MPCs used in the United States are apparently imported, “MPCs have…
The U.S. Department of Agriculture’s National Organic Standards Board (NOSB) has announced a public meeting slated for May 4-6, 2009, at The Washington Plaza Hotel in Washington, D.C. NOSB committees will present recommendations to the full board for a vote concerning (i) the use or prohibition of 13 petitioned substances for the National List of Allowed and Prohibited Substances; (ii) revisions to the NOSB policy and procedures manual and the Guide for New NOSB Members; (iii) guidance for accredited certifying agents regarding the use of the 100 percent label claim on processed products and the strengthening of the on-farm implementation of the principals of biodiversity and conservatism; (iv) guidance to the National Organic Program (NOP) regarding compliance with the Peer Review requirements of the Organic Foods Production Act and the organic regulations; (v) guidance on standards for the management of bivalves; and (vi) a change to the definition of nonagricultural…
A new U.S. Government Accountability Office (GAO) report claims that a lack of cooperation among federal agencies has contributed to an increase in seafood supply chain fraud. GAO faults Customs and Border Protection, the National Marine Fisheries Service and the Food and Drug Administration for failing to agree on key roles and responsibilities, identify a common goal, and establish joint strategies. “As a result, the agencies have not taken advantage of opportunities to share information that could benefit each agency’s efforts to detect and prevent seafood fraud, nor have they identified similar and sometimes overlapping activities that could be better coordinated to use limited resources more efficiently,” the report states. See foodproductiondaily.com, March 25, 2009.
A new Centers for Disease Control and Prevention (CDC) report has determined that nearly 70 percent of the U.S. adult population should limit sodium intake to 1,500 mg/day. According to the CDC’s March 27, 2009, MMWR Weekly, the federal government recommended in 2005 that “all persons with hypertension, all middle-aged and older adults, and all blacks” should limit their sodium intake to 1,500 mg/day, and 69.2 percent of adults met these criteria in 2005-2006. The limit for adults without these characteristics remains at 2,300 mg/day, or about one teaspoon. Because CDC based its estimate of those in the group that should consume less salt on NHANES data, which do not include institutionalized individuals, the CDC cautions that their inclusion “likely would increase the percentage of the population for whom the recommended 1,500 mg/day sodium limit is applicable.” CDC notes, “Most of the sodium we eat comes from packaged, processed, store-bought,…
The U.S. Department of Health and Human Services (HHS) has reportedly commissioned a study showing that one-quarter of food facilities contacted by federal health investigators were unaware of laws requiring them to trace their suppliers. Authored by HHS Inspector General Daniel Levinson, the report also found that despite federal regulations, most food manufacturers and distributors were unable to identify the suppliers or recipients of their products. Levinson has apparently recommended that the Food and Drug Administration (FDA) seek greater authority from Congress to require and ensure that food facilities maintain adequate records. According to The New York Times, which obtained a copy of the report expected to be released at a congressional hearing next Thursday, the department’s findings may help explain why many small food makers continue to issue peanut-related recalls more than two months after the Peanut Corp. of America was implicated in a Salmonella outbreak linked to nine deaths…
The Union of Concerned Scientists recently criticized the Food and Drug Administration (FDA) for failing to solicit public and scientific input before it approved “the first commercialization both of a drug from a genetically engineered [GE] animal and of the animal itself.” According to the Union, FDA has allowed a Massachusetts company to raise a herd of GE goats capable of producing milk that contains a human protein used to prevent blood clots. The consumer advocacy group has accused the agency of violating its promise to open a public comment period and to gather feedback from an FDA advisory committee before permitting the company to market the goats. “Under the FDA’s process, there were no discussions of the safety or ethical implications of the approval, nor were regulations developed to keep the goats and their milk from contaminating the food supply,” opined the Union in its March 2009 Food &…
A federal court in the District of Columbia has dismissed a lawsuit filed by California almond growers, handlers and grower-handlers against the U.S. Department of Agriculture (USDA) challenging an agency regulation that requires handlers to treat raw almonds grown and sold in the United States to reduce the risk of Salmonella contamination. Koretoff v. Vilsack, No. 08-1558 (D.D.C., decided March 9, 2009). Without addressing the merits of the complaint, the court granted the USDA’s motion to dismiss, finding that the plaintiffs failed to exhaust their administrative remedies, which would have required petitioning the USDA secretary before bringing their action in court, as mandated by statute. Since September 2007, all domestic almonds intended for sale in the United States must be pasteurized by either proplylene-oxide fumigation or steam heat. Growers and handlers reportedly complain that unpasteurized raw almonds demand higher prices, up to 40 percent more, and that foreign suppliers, who are…
The Federal Circuit Court of Appeals has determined that a U.S. Department of Agriculture (USDA) Salmonella rule, which interfered with an egg producer’s sales for about two years, was not a compensable taking under the Fifth Amendment. Rose Acre Farms, Inc. v. U.S., No. 07-5169 (Fed. Cir., decided March 12, 2009). The case involved emergency regulations adopted in 1990 that restricted the sale of eggs from farms identified as infected with a type of Salmonella bacteria. The regulations diverted the eggs from three of Rose Acre’s farms from the table to other uses, such as in cake mixes, for 25 months and thus purportedly reduced the company’s profits. The company brought several lawsuits against the government, and the various issues raised were appealed several times. This appeal involved the “takings” issue only and was before the Federal Circuit for the second time. Under the Fifth Amendment, the government must compensate private…
The U.S. Department of Health and Human Services, Department of Agriculture, and Food and Drug Administration have announced an April 7, 2009, public meeting to discuss agenda items and draft positions for the Codex Alimentarius Commission’s 37th Session of the Codex Committee on Food Labeling (CCFL) slated for May 4-8, 2009, in Calgary, Canada. The CCFL “drafts provisions on labeling applicable to all foods; considers, amends if necessary, and endorses specific provisions on labeling of draft standards, codes of practice, and guidelines prepared by other Codex committees; studies specific labeling problems assigned to it by the commission; and studies problems associated with the advertisements of food with particular reference to claims and misleading descriptions.” In particular, the U.S. agencies are seeking public input about (i) draft codex standards for food labeling; (ii) the implementation of the World Health Organization’s Global Strategy on Diet, Physical Activity and Health; (iii) guidelines for the…
