The World Health Organization (WHO) has published an October 2016 report claiming that “taxing sugary drinks can lower consumption and reduce obesity, type 2 diabetes and tooth decay,” according to a concurrent press release. Titled Fiscal Policies for Diet and Prevention of Noncommunicable Diseases (NCDs), the report collates information gathered during a May 2015 technical meeting of fiscal-policy experts who evidently concluded that “there is reasonable and increasing evidence that appropriately designed taxes on sugar-sweetened beverages would result in proportional reductions in consumption, especially if aimed at raising the retail price by 20% or more.” The report summarizes the effect of fiscal policies—including food and beverage taxes, nutrient-focused taxes and subsidies—on health outcomes in Denmark, Ecuador, Egypt, Finland, France, Hungary, Mauritius, Mexico, Philippines, Thailand and the United States. “Some of the challenges faced in implementation include a lack of appropriate capacity for tax administration, tax set at low levels that…
Members of the European Parliament have backed by a 559 to 31 vote, with 26 abstentions, a non-binding resolution asking the EU to “further harmonize the safety requirements for food contact materials [FCMs], which are largely used in everyday life in the form of food packaging, kitchen utensils and tableware.” According to a news release, “Only four out of listed 17 food contact materials are currently covered by specific safety measures foreseen in existing EU framework legislation: plastics, ceramics, regenerated cellulose and ‘active and intelligent’ materials.” In particular, the report on the implementation of the Food Contact Materials Regulation ((EC) No 1935/2004) calls on the Commission to consider identifying bisphenol A (BPA) as one of the substances classified as a substance of very high concern (SVHC) under REACH regulations. It also asks the European Commission to prohibit the use of bisphenol S (BPS) in FCMs “as a substitute for Bisphenol…
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) has completed a report reviewing nine allegations of misconduct asserted by Josh Tetrick, head of Just Mayo producer Hampton Creek, against the American Egg Board (AEB). The report concludes that AEB staff and board members engaged in inappropriate conduct, including failing to adhere to USDA guidelines, targeting a specific company and sending inappropriate emails. The report found substantiation for five of Tetrick’s nine allegations: (i) AEB employees exchanged inappropriate emails about Tetrick, including references such as, “Can we pool our money and put a hit on him?” and “old buddies from Brooklyn pay him a visit”; (ii) an AEB executive accepted a consultant’s offer to contact Whole Foods Market Inc. in an effort to persuade the company to stop stocking Just Mayo, although the consultant never actually contacted the company; (iii) a public relations expert conducted market research on egg-replacement products,…
The White House has issued a policy directive intended to promote “authorized engagements with Cuba to advance cooperation on areas of mutual interest, and increase travel to, commerce with, and the free flow of information to Cuba.” To this end, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security have announced amendments to the Cuban Assets Control Regulations and Export Administration Regulations that will lift restrictions on travelers bringing Cuba-origin alcohol, cigars and other products back to the United States for personal use. According to the announcement, OFAC considers “personal use” of imported merchandise “to include giving the item to another individual as a personal gift, but not the transfer of the item to another person for payment or other consideration.” In addition, the new rules permit a range of specific healthcare, humanitarian, trade, and commerce transactions, and…
A consumer has filed a putative class action against Dave’s Gourmet, Inc. alleging the company deceives its customers by listing evaporated cane juice (ECJ) on its sauce labels rather than the U.S. Food and Drug Administration’s (FDA’s) preferred term, sugar. Kazemi v. Dave’s Gourmet, Inc., No. 16-5269 (N.D. Cal., filed September 14, 2016). The complaint asserts that the plaintiff and other members of the putative class “would have paid less for the Products or would not have purchased the Products had they known that the Products’ listing of ECJ as an ingredient claim was false, misleading, and deceptive.” For alleged violations of California’s and Florida’s consumer-protection statutes, the plaintiff seeks class certification, injunctions, restitution, damages and attorney’s fees. Issue 618
A New York federal court has stayed a proposed class action alleging Kind LLC misleads consumers by describing its products as “all natural” and free of genetically modified organisms. In re Kind, No. 15-2645 (S.D.N.Y., order entered September 15, 2016). The court noted that the U.S. Food and Drug Administration (FDA) requested comments on the use of the term “natural” in food labeling in November 2015 and closed the comment period in May 2016, suggesting that FDA is “prepared to address the core issues in this case.” The plaintiffs voluntarily dismissed their claims that Kind’s use of “healthy” on its labels was misleading following FDA’s determination that it would permit Kind to use the term as the agency considers redefining it. Details on that determination appear in Issue 604 of this Update. Issue 618
The U.S. Environmental Protection Agency (EPA) has announced a settlement with Whole Foods Inc. after a year-long investigation into the company’s hazardous-waste disposal at facilities in five states. According to EPA, the investigation uncovered that Whole Foods did not properly make hazardous waste determinations—as required by the Resource Conservation and Recovery Act—and mishandled spent lamps. Under the settlement terms, Whole Foods will correct the violations, pay $3.5 million and “promote hazardous waste compliance in the retail industry as part of a supplemental environmental project.” That project will aim to educate Texas retailers—”particularly smaller businesses”—about hazardous waste laws and the importance of maintaining compliance. “All companies must follow the law and be responsible stewards of their hazardous waste, from generating it to safely disposing of it,” an EPA administrator was quoted as saying in a September 20, 2016, press release. “Whole Foods is correcting these violations and will ensure their stores…
In a lawsuit brought by the Natural Resources Defense Council (NRDC) alleging failure to meet a deadline to set limits on perchlorate levels in drinking water, a New York federal court has issued an order adopting the U.S. Environmental Protection Agency’s (EPA’s) preferred language to admit the failure. Nat. Res. Def. Council v. EPA, No. 16-1251 (S.D.N.Y., order entered September 19, 2016). An EPA attorney reportedly admitted in court that the agency had missed the deadline of February 11, 2013, to set limits on perchlorate in drinking water after announcing its intention to propose regulations two years prior. NRDC and EPA then submitted proposed orders admitting the failure, and the court adopted EPA’s language without further discussion. See Law360, September 20, 2016. The court’s order finds that (i) EPA triggered a non-discretionary duty to propose a maximum contaminant level goal by February 11, 2013; (ii) EPA failed to propose that goal…
Shook Partner Frank Cruz-Alvarez and Associate Ravika Rameshwar have authored an article for the Washington Legal Foundation’s Legal Pulse discussing a New York federal court’s dismissal of a class action centered on infant formula marketed as organic. The complaint alleged that Abbott Laboratories, Inc. represented its Similac® Advance® as organic despite containing ingredients prohibited in organic products by the U.S. Department of Agriculture (USDA). Cruz-Alvarez and Rameshwar provide an overview of the case and detail the relevant provisions of the Organic Foods Production Act of 1990, which establishes that a product can be labeled “organic” if a USDA-accredited agency certifies it as such. The court compared the infant formula allegations to a U.S. Court of Appeals for the Eighth Circuit case challenging the organic label of milk and reached an analogous conclusion: the state laws supporting the complaint challenged the federal law’s certification determination and were thus preempted. Accordingly, the…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced the addition of furfuryl alcohol to the list of chemicals known to the state to cause cancer in accordance with Proposition 65 (Prop. 65) regulations. OEHHA describes furfuryl alcohol as “formed in foods during thermal processing and as a result of the dehydration of sugars,” noting that the U.S. Environmental Protection Agency (EPA) has formally identified the chemical as one that causes cancer. In particular, OEHHA cites the 2014 EPA report titled Cancer Assessment Document, Evaluation of the Carcinogenic Potential of Furfural and Furfuryl Alcohol, as satisfying “the formal identification and sufficiency of evidence criteria in the Proposition 65 regulations for furfuryl alcohol.” Issue 618
