The Food and Drug Administration (FDA) has issued a warning letter to CEO John Glessner of Ohio Fresh Eggs, after finding that it had shipped nearly 800 cases of eggs from farms that had tested positive for Salmonella. The Ohio company is reportedly linked to the egg producer involved in a massive egg recall in 2010; Glessner apparently has ties to Hillandale Farms of Iowa whose owner Jack DeCoster apparently provided most of the funds to purchase Ohio Fresh Eggs from a previous owner. The company has reportedly characterized the shipment as a mistake and was quoted as saying, “Our farm cooperated fully with FDA to ensure a swift and complete recall of those eggs from our customer, and we are thankful no illnesses were reported.” See Des Moines Register, March 1, 2011.
The Government Accountability Office (GAO) has issued a March 2011 report identifying 34 areas, including agriculture, “where agencies, offices, or initiatives have similar or overlapping objectives or provide similar services to the same populations; or where government missions are fragmented across multiple agencies.” Commissioned by Congress, this first annual report also summarizes 47 areas where lawmakers or regulators could further reduce the cost of government. These results reflect both new research undertaken by GAO and previously compiled reports, such as the February 16, 2011, edition of the High-Risk Series covered in Issue 382 of this Update. When it comes to the agriculture sector, according to GAO, “[t]he fragmented federal oversight of food safety has caused inconsistent oversight, ineffective coordination, and inefficient use of resources.” The report notes that 15 federal agencies “collectively administer at least 30 food related laws,” with the U.S. Department of Agriculture (USDA) overseeing meat, poultry, processed egg…
The parties to obesity-related litigation, brought on behalf of several teenagers against fast-food giant McDonald’s Corp. in 2002, have filed a stipulation of voluntary dismissal with prejudice. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., stipulation filed February 25, 2011). The action followed entry of an order in December 2010 scheduling pretrial discovery and motions filing and briefing for the individual claims remaining in this putative class action. A court refused to certify the action as a class in October. Pelman was closely watched by industry and consumer advocates as it made several trips before the Second Circuit Court of Appeals that ultimately narrowed the issues for trial. It was expected to be groundbreaking litigation that would allow access to industry documents which plaintiffs’ interests believed could be used to bring a flood of litigation against companies they blame for the nation’s increasing incidence of obesity. The experience of litigators opposing…
In an academic analysis, a Tufts University researcher has reportedly called for “strong legislation” to protect Canadians from continued exposure to bisphenol A (BPA) in light of Canada last year becoming the first country to declare the chemical a toxic substance. Laura Vandenberg, “Exposure to bisphenol A in Canada: invoking the precautionary principle,” Canadian Medical Association Journal, February 2011. Although noting that Canadians have half the levels of BPA in their bodies as Americans—reasons for which may include the absence of Canadian BPA production plants—Vandenberg suggests that the lack of a BPA ban in Canada puzzles consumers. “Health Canada continues to maintain that bisphenol A is safe at current exposure levels and does not pose any risk to the general population; regulations to remove bisphenol A from all food-contact sources, or ban it completely, are not yet forthcoming, presenting a conflict that is likely to confuse the public,” Vandenberg wrote.…
Highlighting the California lawsuit that seeks to stop McDonald’s from marketing “Happy Meals” to children, a March 2011 Inside Counsel article cautions corporate counsel to pay attention to such litigation, because, frivolous or not, the case marks a growing national focus on health and governmental initiatives to impose reforms on the food industry. Additional information about the case appears in Issue 375 of this Update. Author and managing editor Ashley Trent quotes Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Madeleine McDonough, who questioned whether the lawsuit could be certified as a class. “There are so many individual issues,” she said. “What kind of advertising did [putative class members] actually see? What’s the proof that they actually relied on the advertising? What are the reasons they ate at McDonald’s? What did they eat? What kind of control did the parents exercise?” Other legal experts questioned the strength of the lawsuit’s substantive…
According to media sources, documentarian Morgan Spurlock recently screened his latest film about advertising and product placement at the 2011 Sundance Film Festival, with plans for a general audience release in April 2011. Best known for “Super Size Me,” a film critical of the fast-food industry, Spurlock’s “POM Wonderful Presents: The Greatest Movie Ever Made” apparently “unmasks the marketing process to bring audiences behind closed doors directly into the pitch meetings and marketing presentations which ultimately inform our everyday entertainment decisions,” according to a press release issued by film sponsor POM Wonderful®. Financed entirely by product placement, the film reportedly explores the world of co-promotion “with humor and insight,” although Advertising Age also noted a focus on “advertising’s wrongs,” such as “the marketers’ hooks in children,” and new techniques such as neuromarketing. “I felt the best way to examine the ever-growing debate of brand integration in film and television was…
The World Anti-Doping Agency (WADA) has reportedly requested information from China concerning the country’s use of steroids in raising cattle after some athletes blamed tainted beef for their positive drug tests. Noting that he is awaiting a response from the Chinese minister for a “full explanation of what happens in the industry,” WADA director general David Howman said, “there seems to be some evidence that some beef in China may have been stimulated in their growth by the use of steroids.” A WADA-accredited lab in Cologne, Germany, apparently discovered that 22 of 28 returning travelers from China tested positive for low levels of agency-banned clenbuterol, a livestock-bulking substance that builds muscle and burns fat. In related developments, the Spanish cycling federation recently cleared the Tour de France champion who had blamed his positive clenbuterol test on contaminated meat from Spain, and a German table tennis player was cleared after blaming…
The director of legal initiatives for Yale University’s Rudd Center for Food Policy and Obesity has authored an article on front-of-package (FOP) food and beverage labeling that calls for “new directions for research and regulation.” Jennifer Pomeranz, “Front-of-Package Food and Beverage Labeling: New Directions for Research and Regulation,” American Journal of Preventative Medicine, March 2011. Claiming that “food labels have become unwieldy from a consumer, health, and regulatory perspective,” Jennifer Pomeranz’s article explores the current state of “FOP schemes, health and nutrition claims, and enforcement activity,” and makes specific research recommendations for each context. In particular, it notes several areas—such as health and nutrition claims—that appear ripe for regulation and where additional scientific evidence could overrule First Amendment objections. “When the FDA and industry finalize their FOP schemes, research will be needed to assess their scientific validity, their efficacy for consumer use and comprehension, and whether a mandatory FOP scheme is necessary,”…
A British Columbia resident who operates a “cowshare” that produces and distributes raw milk to members has filed a lawsuit against the provincial government challenging a regulation that prohibits the sale of milk that has not been pasteurized. Jongerden d/b/a Home on the Range v. The Queen, No. S-111196 (Sup. Ct., British Columbia, filed February 23, 2011). According to the complaint, the plaintiff has been cited for packaging and distributing raw milk for human consumption and was further cited for contempt when she continued to sell the milk after labeling it as “not for human consumption.” The plaintiff contends that raw milk has beneficial health effects and that the ultra vires regulation has prevented her from obtaining and consuming raw milk from a lawful source.
The Environmental Protection Agency (EPA) issued two decisions allowing the sale of ethanol blends above 10 percent, referred to as E15, for use in model year 2001 and newer vehicles. Both decisions have been challenged in court, and the agency has filed a response to a motion filed by food industry interests asking the court to accelerate the briefing schedule. GMA v. EPA, No. 10-1380 (D.D.C., opposition filed February 17, 2011). EPA asked the court considering the actions to instead adopt a consolidated briefing schedule that allows both decisions to be addressed, in the interest of preserving judicial resources. In a footnote, EPA suggests that the food industry parties may lack standing to challenge the agency’s E15 waiver. Apparently, EPA regulations give “only fuel and fuel additive manufacturers” the ability to register E15, and they are already represented in a challenge to EPA’s action. EPA also notes, “given that several steps…
