The Center for Progressive Reform has issued a paper titled “Protecting the Public from BPA: An Action Plan for Federal Agencies.” Contending that the chemical bisphenol A (BPA), which is used extensively in food contact materials, has negative health effects in low doses and that federal agencies have failed, to date, to regulate it, the center outlines short-term and long-term actions they should take. Among other matters, the paper suggests that the Food and Drug Administration use its new mandatory recall authority under the Food Safety Modernization Act to “recall certain foods containing toxins such as BPA, if the health hazard concerns become too great and traditional regulatory methods ineffective at protecting the public.” The paper also recommends that the Environmental Protection Agency (EPA) update its Integrated Risk Information System, which contains toxicological profiles on industrial chemicals, “to include current data to reflect the risks that have recently come to light,…
A recent study has reportedly raised concerns about whether exposure to perfluorinated compounds (PFCs) compromises vaccine effectiveness in children. Philippe Grandjean, et al., “Serum Vaccine Antibody Concentrations in Children Exposed to Perfluorinated Compounds,” Journal of the American Medical Association, January 2012. Approved for use in some food contact applications such as microwavable paper, PFCs “have emerged as important food contaminants,” according to the study’s authors, who gathered data from 587 participants in a prospective birth cohort study based in the Faroe Islands. According to a January 24, 2012, Harvard School of Public Health press release, “The results showed that PFC exposure was associated with lower antibody responses to immunizations and an increased risk of antibody levels in children lower than those needed to provide long-term protection.” In particular, the authors noted that “a two-fold greater concentration of three major PFCs was associated with a 49% lower level of serum antibodies…
U.S. researchers have reportedly discovered methicillin-resistant Staphylococcus aureus (MRSA) in retail pork samples “at a higher rate than previously identified,” raising questions about the organism’s “overall ecology and transmission” in the food supply. Ashley O’Brien, et al., “MRSA in Conventional and Alternative Retail Pork Products,” PLoS One, January 2012. Conducted by the Institute for Agriculture and Trade Policy (IATP) and the University of Iowa College of Public Health, the study examined 395 fresh pork cuts collected from 36 stores in Iowa, Minnesota and New Jersey, in addition to comparing products “from conventionally-raised swine and swine raised without antibiotics.” According to the analysis, researchers isolated S. aureus in 256 pork samples (64.8 percent) and MRSA in 26 samples (6.6 percent) but discovered “no significant difference” in prevalence between conventional and alternative pork products. The study notes, however, that 26.9 percent of MRSA isolates were a “livestock-associated” strain known as ST398 (t034, t011) as…
A National Academies National Research Council panel has issued a report acknowledging the progress made by the National Nanotechnology Initiative in researching the environmental and potential health effects of engineered nanomaterials (ENM), but criticizing an overall failure to link research with strategies to prevent and manage risks. Headed by Jonathan Samet, who teaches at the University of Southern California Keck School of Medicine and has long researched, written about and crusaded against tobacco smoke and the industry, the panel calls for the development of a strategic research plan “independent of any one stakeholder group, [with] human and environmental health as its primary focus.” The report advocates that four research categories be addressed within five years: “identify and quantify the nanomaterials being released and the populations and environments being exposed”; “understand processes that affect both potential hazards and exposure”; “examine nanomaterial interactions in complex systems ranging from subcellular to ecosystems”; and…
Spike, LLC, a company that makes and distributes energy drinks, has filed a lawsuit against the company it hired to destroy 18 pallets of products that Spike determined should be removed from the marketplace as unfit for sale, claiming that the recycling company failed to destroy the products and, in fact, sold them “thereby undercutting Spike’s sales.” Spike, LLC v. Nationwide Recycling, LLC, No. 12CV00111 (Wis. Cir. Ct., Waukesha Cty., filed January 10, 2012). Seeking compensatory and treble damages, attorney’s fees, and interest, the plaintiff alleges conspiracy; breach of contract; property loss through fraudulent misrepresentation; misrepresentation: intentional deceit; misrepresentation: strict responsibility; misrepresentation: negligence; and conversion. According to the complaint, Spike paid the company $10,000 to destroy 13,617 cases of energy drink products, which had a value of about $900,000.
The Office of the U.S. Trade Representative has announced that the United States will file an appeal in a dispute with Mexico before the World Trade Organization (WTO) over U.S. labeling provisions that allow producers meeting dolphin-safe requirements to label their products accordingly. One of the U.S. conditions challenged by Mexico provides that this label cannot be used if dolphins are purposefully chased and encircled to catch tuna. In September 2011, WTO handed Mexico a partial victory, finding that the U.S. measures were more trade-restrictive than necessary to achieve a legitimate objective. Additional information about the dispute appears in Issue 409 of this Update. According to a Trade Representative spokesperson, “Our dolphin-safe labeling measures for tuna products provide information for American consumers as they make food purchasing decisions for their families. Our decision to appeal the WTO ruling in this case demonstrates the commitment of the United States to our…
A federal court in the District of Columbia has determined that the U.S. Department of Agriculture (USDA) had the authority to and properly promulgated a rule “requiring that almonds produced domestically be pasteurized or chemically treated against bacteria.” Koretoff v. Vilsack, No. 08-1558 (D.D.C., decided January 18, 2012). So ruling, the court granted USDA’s motion for summary judgment. Further information about the challenge brought by U.S. almond growers appears in Issue 274 of this Update. The almond rule was adopted in response to Salmonella outbreaks traced to raw almonds in 2001 and 2004. USDA adopted it under the authority of the Agricultural Marketing Agreement Act of 1937 and the California Almond Marketing Order (Almond Order), promulgated in 1950. At issue in the dispute between the U.S. almond growers and USDA was whether safety regulations are encompassed by the law’s use of the term “quality,” over which USDA specifically has regulatory…
A federal court in Iowa has denied a motion seeking to preliminarily enjoin the Food and Drug Administration (FDA) from enforcing regulations prohibiting the interstate sale of raw milk. Farm-to-Consumer Legal Defense Fund v. Sebelius, No. 10-4018 (N.D. Iowa, decided January 23, 2012). The plaintiffs, who either produce or consume raw milk, filed their motion under the All Writs Act, claiming that FDA has taken enforcement actions against third parties in other jurisdictions while the plaintiffs’ lawsuit challenging the validity of the rules is pending and that such action usurps the court’s jurisdiction to decide whether the interstate sale of raw milk is legal. According to the court, “[t]he plaintiffs have not cited, and I have not found, any authority for the proposition that the first federal court to entertain a challenge to a federal regulation has the power to forestall enforcement of that regulation by a federal agency in other…
The Seventh Circuit Court of Appeals has turned aside a challenge to an Indiana law that prevents an alcoholic beverage retailer from shipping wine to its customers via motor carrier. Lebamoff Enters., Inc. v. Huskey, No. 11-1362 (7th Cir., decided January 17, 2012). The retailer claimed that the law was preempted by the Federal Aviation Administration Authorization Act of 1994 and that it violated the dormant Commerce Clause of the U.S. Constitution. Writing for the panel, Judge Richard Posner explained that the Twenty-First Amendment, which confers core powers on the states to regulate the sale of alcoholic beverages, places a thumb on the scale balancing state and federal interests. If the state interests are within those core powers, wrote Posner, there is a “‘strong presumption’ of validity.” According to the court, Indiana requires that drivers employed by liquor retailers be trained in the state’s alcohol laws and the recognition of…
A unanimous U.S. Supreme Court has determined that the Federal Meat Inspection Act (FMIA) and its regulations preempt a California law that required swine slaughterhouses to humanely euthanize nonambulatory animals and prohibited them from processing, butchering or selling the meat or products of nonambulatory animals for human consumption. Nat’l Meat Ass’n v. Harris, No. 10-224 (U.S., decided January 23, 2012). Details about the Ninth Circuit’s decision, which the Court reversed, appear in Issue 344 of this Update. Writing for the Court, Justice Elena Kagan stated that the FMIA includes an express preemption clause which “sweeps widely—and in so doing, blocks the applications of [the California law] challenged here. The clause prevents a State from imposing any additional or different even if nonconflicting—requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. And at every turn [the California law] imposes additional or different requirements on…
