A federal court in Missouri has denied the motion to dismiss filed by a food-safety company responsible for auditing conditions at the Jensen Farms cantaloupe facility some six weeks before the U.S. Food and Drug Administration inspected the farm and found the Listeria strains associated with a nationwide outbreak that allegedly sickened the plaintiff. West v. Frontera Produce Ltd., No. 13-0943 (W.D. Mo., decided November 7, 2014). Primus Group, Inc. had argued that it owed no duty to the plaintiff, but the court disagreed, citing Missouri case law, which is consistent with the Restatement (Second) of Torts, Section 324A, allowing liability for third persons who render services that should be recognized “as necessary for the protection of a third person or his things.” According to the court, the plaintiff sufficiently stated a cause of action against the defendant, “given that Primus assumed a duty pursuant to contract and the performance of that duty…
Category Archives U.S. Government and Regulatory Agencies
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) has determined that KK179 alfalfa, a genetically engineered (GE) crop that was created “to express reduced levels of guaiacyl lignin, a major subunit component of total lignin that slows the digestion of cellulose in livestock, as compared to conventional alfalfa at the same stage of growth,” is unlikely to constitute a plant pest, thus granting Monsanto Co. and Forage Genetics International’s petition for nonregulated status. APHIS found no significant impact following several opportunities for public comment on the petition and the preparation of an environmental assessment. See Federal Register, November 10, 2014. Issue 545
The U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) has approved for commercial planting a new variety of potato genetically engineered (GE) for low acrylamide and reduced black spot bruise. The potatoes in question use a technique known as RNA interference to silence genes involved in bruising and the production of acrylamide, which USDA defines as “a human neurotoxicant and potential carcinogen that may form in potatoes and other starchy foods under certain cooking conditions.” Submitted by J. R. Simplot Co., the petition for Innate™ potatoes (E12, E24, F37, J3, J55, J78, G11, H37, and H50) underwent plant and environmental risk assessments as well as a review period that generated more than 40,000 public comments—many of them identical raising concerns about “potential effects on conventional potato production, export markets, and plant fitness.” After reviewing all available data, APHIS issued a final environmental assessment with a finding…
The Center for Science in the Public Interest (CSPI) has submitted a request to the U.S. Food and Drug Administration (FDA) under the Freedom of Information Act for “the data collected by the Center for Veterinary Medicine under its Raw Milk Drug Residue Survey.” According to CSPI, FDA conducted the survey in 2012 “because excess and sometimes illegal drugs are more frequently found in animals from dairy farms at slaughter plants than animals coming from other sources.” CSPI’s review of drug testing reports in 2011 purportedly revealed that “animals coming from dairy farms accounted for 67 percent of reported drug residue violations at slaughter” and that, in some cases, “the reported residues were for drugs that are not approved for use in cattle.” While FDA informed consumer groups that it would make the raw data available when its report is released, it has yet to release the survey results. CSPI attorney…
The Center for Food Safety and two other public interest organizations have filed a lawsuit against the U.S. Food and Drug Administration (FDA) seeking to overturn its approval of 11 animal drugs containing ractopamine hydrochloride on the ground that the agency failed to undertake the analysis purportedly required under the National Environmental Policy Act (NEPA) before approving them. Ctr. for Food Safety v. Hamburg, No. 14-4932 (N.D. Cal., filed November 6, 2014). The Center previously petitioned FDA to reduce the allowable levels of ractopamine, administered in animal feeds to boost growth and leanness in meat production, and to study its potential effects on human health and animal welfare. Information about the petition appears in Issue 466 of this Update. The complaint sets forth the effects these drugs allegedly have on livestock, like pigs, and on the environment. The plaintiffs claim that the company that makes ractopamine has acknowledged the “risk…
Days after the U.S. Federal Trade Commission (FTC) filed a lawsuit to enjoin Gerber Products Co. from claiming that its Good Start® Gentle infant formula helps reduce allergies in children, a consumer filed a putative class action in Arizona federal court alleging the same facts. Werthe v. Gerber Prods. Co., No. 14-8216 (D. Ariz., filed November 3, 2014). Additional information about FTC’s lawsuit against Gerber appears in Issue 543 of this Update. Like the FTC complaint, the consumer action alleges that Gerber advertises the partially hydrolyzed whey protein (PHWP) in its Good Start® Gentle formula as reducing the risk of atopic dermatitis in infants. As a result, Gerbercharges “a significant premium” over other infant formulas, the plaintiff asserts. The complaint cites Gerber’s labeling, which allegedly promises thatits product is the “1st & Only Routine Formula to Reduce the Risk of Developing Allergies” and that it “Meets FDA [U.S. Food and Drug…
The D.C. Circuit Court of Appeals has denied the requests of meat-producer interests to rehear arguments in a case challenging the U.S. Department of Agriculture’s (USDA’s) country-of-origin labeling (COOL) rules as a violation of First Amendment rights. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered October 31, 2014). Under the regulations, amended in May 2013, retailers of “muscle cuts” are required to list on product labels the countries of origin and production as to each step of production—born, raised or slaughtered. Additional details about the en banc ruling upholding the regulations appear in Issue 532 of this Update. USDA amended the rules to address an adverse World Trade Organization (WTO) determination that they discriminated against Canadian and Mexican livestock producers. The effort was unsuccessful, as WTO again ruled in favor of Canada and Mexico. Information about that decision appears in Issue 542 of this Update. Issue 544
The U.S. Government Accountability Office has issued a report related to its review of the federal government’s oversight of pesticide residues in food. More specifically, the report discusses the congressional watchdog’s analysis of Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA) Food Safety and Inspection Service and USDA Agricultural Marketing Service pesticide residue data, the data’s reliability, and the agencies’ methods for sampling foods for testing. Among other things, GAO recommends improvements in FDA’s methodology and disclosure of the limitations in both agencies’ monitoring and data collection efforts. Issue 544
Sazerac Co. has recalled its Fireball Cinnamon Whiskey from Sweden, Norway and Finland because some batches contain levels of flavoring chemical propylene glycol that exceed European limits. The company says that it mistakenly shipped batches to Europe that were intended for the United States, where the U.S. Food and Drug Administration (FDA) allows higher levels for the Generally Recognized As Safe ingredient. The recall drew media attention to the regulation discrepancy, with many noting that industrial-grade propylene glycol is used in antifreeze. The company clarified October 29, 2014, that it uses food-grade propylene glycol, which it says is also used in many other consumable products, including salad dressing, beer, ice cream, and cake. Sazerac called the ingredient “ideal for use in a large variety of flavors to give most of today’s food and beverages their distinctive taste. Flavor companies use it to carry flavor ingredients through to the final product,…
Food & Water Watch and the Center for Food Safety (CFS) have reported that AquaBounty Technologies has been fined $9,500 USD for violating environmental regulations in Panama and call for the U.S. Food and Drug Administration (FDA), which is assessing the safety of the company’s genetically engineered (GE) salmon, to terminate its review and deny AquaBounty’s pending application to sell GE fish in the United States. The Panamanian National Environmental Authority apparently ruled on October 23, 2014, that AquaBounty failed to secure the permits needed for water use and water discharge before commencing operations. The decision came in response to a complaint filed in 2013 by the environmental organization Centro de Incidencia Ambiental. CFS senior attorney George Kimbrell said, “AquaBounty has not been able to follow the law, because it lacks the capacity, sophistication, will, or all of the above. This decision is also even further proof that FDA is…
