In a recent article for Law360, Shook, Hardy & Bacon Class Actions & Complex Litigation Co-Chair Jim Muehlberger and Agribusiness & Food Safety Associate Jeff Lingwall discuss the new wave of putative class action litigation against food and nutraceutical companies brought by plaintiffs bearing product test results that allegedly indicate deviations from labeled amounts. They explain U.S. Food and Drug Administration (FDA) standards for evaluating nutrition labeling and attendant provisions of the Federal Food, Drug, and Cosmetic Act/Nutrition Labeling and Education Act, advocating anticipatory measures by companies, given the advent of product testing websites, crowdfunded research and the increased scrutiny of the dietary supplement industry. Such measures, they say, include ensuring that (i) production processes (and those of any contract manufacturers) produce FDA-compliant test results and (ii) performing regular product testing to assure compliance with nutrition labeling per FDA-testing procedures. Issue 557
Category Archives Legislation, Regulations and Standards
The Federal Trade Commission (FTC) has filed an administrative complaint arguing that a proposed merger of US Foods and Sysco would violate antitrust laws, resulting in higher prices and diminished service for the companies’ customers. In re Sysco Corp., No. 9364 (FTC, filed February 19, 2015). The complaint asserts that a merger of Sysco and US Foods, the largest broadline foodservice distributors in the United States, would account for 75 percent of the national market for broadline distribution services. The sale of 11 US Foods distribution centers to another distributor would not counteract the significant competitive harm caused by the merger, FTC argues. “This proposed merger would eliminate significant competition in the marketplace and create a dominant national broadline foodservice distributor,” Debbie Feinstein, the director of FTC’s Bureau of Competition, said in February 19, 2015, press release. “Consumers across the country, and the businesses that serve them, benefit from the…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced a May 7, 2015, meeting of its Developmental and Reproductive Toxicant Identification Committee (DARTIC) to consider the addition of bisphenol A (BPA) to the list of chemicals known to the state to cause reproductive toxicity. Citing the availability of new epidemiological and toxicological data, DARTIC will assess “whether BPA has been clearly shown by scientifically valid testing according to generally accepted principles to cause female reproductive toxicity.” OEHHA has also made available hazard identification materials on BPA and female reproductive toxicity and requested public comments by April 6, 2015. After adding BPA to the list of reproductive toxicants under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) in April 2013, OEHHA delisted the substance following a court injunction. In January 2015, the court ruled that the agency could list BPA under Prop. 65…
The 14-member committee charged with developing the federal government’s "2015 Dietary Guidelines for Americans” has issued its report containing recommendations for promoting consumption of foods and beverages that assist in maintaining a healthy weight and preventing disease. The U.S. Department of Health and Human Services (HHS) and Department of Agriculture (USDA) are soliciting written comments about the committee’s report as well as offering the opportunity to provide oral comments at a March 24, 2015, public meeting in Bethesda, Maryland. Recommendations include following a diet low in saturated fat, added sugars and sodium, i.e., “less than 2,300 mg dietary sodium per day (or age-appropriate Dietary Reference Intake amount), less than 10 percent of total calories from saturated fat per day, and a maximum of 10 percent of total calories from added sugars per day.” The committee discourages consumption of sugar-sweetened beverages. Issue 556
U.S. Sens. Barbara Boxer (D-Calif.), Richard Blumenthal (D-Conn.) and Rep. Peter DeFazio (D-Ore.) have reintroduced a proposed bill that would require the Food and Drug Administration to initiate labeling rules for foods that contain genetically engineered (GE) ingredients. “Some in the food and chemical industry say adding this very small piece of information to food labels will confuse people, will alarm people,” Boxer said. “Well, that argument is a familiar one. It’s been raised by almost every single industry when they want to avoid giving consumers basic facts about the product they’re buying.” The Genetically Engineered Food Right-to-Know Act reportedly has wide-ranging support from more than 120 public health, consumer and environmental organizations. The congressional lawmakers introduced similar legislation in the 113th Congress. See The Hill and Press Release of Congressman Peter DeFazio, February 12, 2015. Issue 555
Finding a lack of standing, a D.C. federal court has dismissed Food & Water Watch’s lawsuit alleging that the U.S. Department of Agriculture’s (USDA’s) New Poultry Inspection System (NPIS) is inconsistent with the Poultry Products Inspection Act (PPIA), which requires USDA to ensure that poultry products are wholesome, unadulterated and properly marked, labeled and packaged. Food & Water Watch v. Vilsack, No. 14-1547 (D.D.C., order entered February 9, 2015). The NPIS reduces the number of USDA inspectors at the slaughter line of poultry production facilities, “freeing up [USDA Food Safety and Inspection Service] resources to conduct offline inspection activities that are more important for food safety, such as verifying compliance with sanitation and [other] requirements, or conducting Food Safety Assessments.” Food & Water Watch challenged the NPIS as consumers of poultry, arguing that the USDA inspection label indicated to them that a federal employee had inspected the poultry and that…
Challengers to the U.S. Department of Agriculture’s country-of-origin labeling (COOL) rules requiring meat products to indicate where the animals were born, raised and slaughtered reportedly will not continue to pursue their claims, according to a stipulation of dismissal. Am. Meat Inst. v. USDA, No. 13-1033 (D.C., stipulation filed February 9, 2015). The meat and poultry groups lost their First Amendment challenge to the mandatory labeling rules in the D.C. Circuit Court and were later denied a rehearing. The stipulation comes after a World Trade Organization (WTO) ruling against the United States in favor of Canada and Mexico, which argue that the rules discriminated against their livestock producers. “While we remain disappointed with the court’s ruling on country of origin labeling (COOL), we agree with the World Trade Organization’s assessment that the U.S. rule is out of compliance with its trade obligations to Canada and Mexico,” North American Meat Institute CEO…
At the request of the Hellenic Food Authority, the European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM Panel) has issued a scientific opinion on the public health risks associated with the presence of nickel (Ni) in food—especially vegetables—and drinking water. Citing the established tolerable daily intake (TDI) of 2.8 µg Ni/kg body weight (bw) per day, the CONTAM Panel concluded that chronic dietary exposure to nickel represents a concern for the general population and that consumers already sensitized to nickel through dermal contact may develop eczematous flare-up skin reactions at the current levels of acute dietary exposure levels. The CONTAM Panel relied on a total of 18,885 food samples and 25,700 drinking water samples to estimate dietary exposure to nickel, finding that the following food groups were the main contributors across age categories: (i) grain and grain-based products; (ii) non-alcohol beverages (except milk-based beverages); (iii)…
The European Food Safety Authority (EFSA) has announced a March 5, 2015, stakeholder meeting to discuss its draft opinion on the safety of caffeine. Authored by the agency’s Nutrition Unit, the draft opinion finds, among other things, that “single doses of caffeine up to 200 mg and daily intakes of up to 400 mg do not raise safety concerns for adults.” It also considers the following: (i) “caffeine consumption during pregnancy, and adverse health effects on the fetus”; (ii) “acute and long-term effects of caffeine consumption on the central nervous system (e.g. sleep, anxiety, behavioral changes) in adults, adolescents, and children”; (iii) “long-term adverse effects of caffeine consumption on the cardiovascular system in adults”; (iv) “acute effects of caffeine consumption in ‘energy drinks’ and risk of adverse health effects in adolescents and adults involving the cardiovascular and central nervous systems, particularly when consumed within short periods of time, at high…
The U.S. Food and Drug Administration (FDA) has issued the results of a study finding that dark chocolate products may contain milk that is not declared on other labels. According to a February 11, 2015, consumer update, the agency tested dark chocolate bars for the presence of milk after dividing them into categories based on their labeling: (i) those that included precautionary statements such as “may contain milk” or “may contain traces of milk”; (ii) those labeled “dairy-free” or “allergen-free”; (iii) those that made no mention of milk on the label; and (iv) those with inconsistent labels—for example, a “vegan” product with a label indicating the possible presence of milk traces. The results evidently identified milk in (i) two of the 17 dark chocolates labeled “dairy-free” or “allergen-free”; (ii) 55 of the 93 products that gave no clear indication of the presence of milk in the products; and (iii) all…
