A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.” The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on…
Following the Irish Environmental Protection Agency’s (EPA’s) decision to allow genetically modified (GM) potato trials in County Carlow, a group of environmentalists and organic producers reportedly mounted a legal challenge under the Aarhus Convention which allows environmental legal issues to be pursued under a “non-prohibitively expensive order.” According to a press report, Mr. Justice Gerard Hogan indicated that he lacked jurisdiction to make such an order, but gave the group leave to provide short notice to the EPA of its intention to challenge the costs issue. Ratified in June 2012 and not yet evidently part of Irish law, article 9 of the convention apparently gives those challenging “critical environmental decisions” the ability to be heard in court without the threat of large legal costs if they lose. EPA’s consent to the GM trials is reportedly subject to eight conditions that include reporting requirements and trial management, and the land will be…
The City of Lakewood, Colorado, has reportedly adopted an ordinance that will subject soft drinks and candy to a 3 percent city sales tax. The tax code change was apparently considered and approved during the city council’s August 27, 2012, meeting. The ordinance is intended to align the city’s taxation of food with the state by exempting sales of food for immediate consumption from sales tax, while taxing soda and candy. According to a news source, the change takes effect in 30 days. See ABC7News, TheDenverChannel.com, August 28, 2012.
The Center for Food Safety has issued a paper critical of the draft report prepared by the U.S. Department of Agriculture’s (USDA’s) Advisory Committee on Biotechnology and 21st Century Agriculture (AC21), which was scheduled to meet August 27-28, 2012, to discuss the draft. According to the advocacy organization, USDA “has increasingly strayed from its role as ‘enhanc[er of] economic opportunities for US farmers and ranchers,’ by continuing to allow genetically engineered (GE) seeds, pollen, and plants to contaminate our nation’s farms without restraint.” In particular, the center calls AC21’s “co-existence” approach to organic, conventional and GE farming “a thinly veiled attempt to sanction allowable amounts of GE contamination in food by establishing a universal GE contamination threshold.” The paper contends that compensating conventional and organic farmers whose crops are contaminated by drifting GE pollen will not address the losses sustained when other countries ban all U.S. seed and crop imports. “Even…
Citizens for Health has filed a citizen’s petition with the Food and Drug Administration (FDA) requesting that the agency amend its high fructose corn syrup (HFCS) regulations. The requested changes would require food producers (i) using HFCS, to identify its concentration f ructose on product labels (e.g., HFCS with 42 percent fructose would be labeled “high fructose corn syrup 42”), and (ii) manipulating the mount of fructose in HFCS “to a different concentration than a standardized blend of 42 or 55,” to also incorporate the concentration into he ingredient name (e.g., HFCS with 90 percent fructose would be labeled “high fructose corn syrup 90”). Citizens for Health also asked that FDA initiate enforcement actions against food companies using HFCS with fructose in amounts other than 42 or 55 percent because these are the concentrations FDA has apparently designated as generally recognized as safe. According to the petition, numerous online articles…
New York University researchers using the Avon Longitudinal Study of Parents and Children with data on more than 11,000 children have purportedly found a consistent association between antibiotic exposure in the first six months of life with “elevations in body mass index with overweight and obesity from ages 10 to 38 months.” L. Trasande, et al., “Infant antibiotic exposures and early-life body mass,” International Journal of Obesity, August 21, 2012 (online). The researchers suggest that the administration of antibiotics during early life, “a critical period for gut colonization,” may disrupt “ancient patterns of intestinal colonization.” U.S. farmers since the late 1940s have apparently given low-dose antibiotics to domesticated mammalian and avian species to hasten weight gain with the understanding that “alterations in the microbiota change ‘feed efficiency.’” Thus, the researchers explored the possibility of similar effects in human children. According to lead researcher Leonardo Trasande, “Microbes in our intestines may…
The Yale Rudd Center for Food Policy & Obesity has posted its fall 2012 speakers schedule, noting that the center “welcomes speakers from different disciplines to present and discuss their work and its implications for the study of obesity and food policy.” Among those on the roster are Harvard Business School Assistant Professor Jason Riis, “Field Studies of Consumer Behavior in Food Retail Settings,” September 12; University of Washington Clinical Professor James Krieger, “Using Policy and Systems Changes to Create Healthy Environments at the Local Level,” October 10; Northwestern University Psychology Professor Ellen Wartella, “Media Characters: The Unhidden Persuaders in Food Marketing to Children,” October 17; Mathematica Policy Research Senior Fellow Ronette Briefel, “National Data to Inform Childhood Obesity Prevention Strategies: Beverage, Dietary, and Activity Practices at Home and School,” November 7; and University of Pennsylvania Media & the Developing Child Director Amy Jordan, “Testing the Effectiveness of Public Service…
Yale University Psychology Professor Kelly Brownell has published a collection of essays with co-editor Mark Gold, Food and Addiction: A Comprehensive Handbook, that, according to Amazon.com “brings scientific order to the issue of food and addiction, spanning multiple disciplines to create the foundation for what is a rapidly advancing field and to highlight needed advances in science and public policy. The book assembles leading scientists and policy makers from fields such as nutrition, addiction, psychology, epidemiology, and public health to explore and analyze the scientific evidence for the addictive properties of food.” New York University Nutrition Professor Marion Nestle calls the work “an instant classic.” She notes that the edited pieces included in the book range from “the seriously scientific to the thoroughly anecdotal.” Asking whether food is “addictive in ways similar to alcohol or cocaine,” Nestle states, “In some ways yes, maybe, and no. Read it and decide for…
According to news sources, the Dusseldorf Regional Court has refused a request for preliminary injunction filed by Nestlé seeking to stop competitors from selling capsules that fit its Nespresso™ coffee makers in Germany. The court reportedly ruled that Nestlé’s patent for the machine does not extend to capsules sold at a lower price by two other Swiss firms. Defendants Ethical Coffee and Betron market their products in a number of European countries as “usable for Nespresso machines.” The rival capsules are about a third less expensive than the Nestlé capsules. The company, which has aggressively defended its Nespresso™ business—worth $3.6 billion worldwide—can apparently either ask the court for a full civil-trial process or appeal the ruling. See The New York Times, Associated Press and Bloomberg, August 16, 2012.
A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
