Shook, Hardy & Bacon Of Counsel Jim Andreasen has co-authored an article providing an update on the American National Standards Institute’s (ANSI’s) draft national standard for sustainable agriculture. The article appears in the January 2010 issue of the American Bar Association’s (ABA’s) Agricultural Management Committee Newsletter. This committee is part of the ABA’s Section of Environment, Energy, and Resources. The article outlines the draft standard’s development to date and the potential impact it could have once finalized. According to the article, the draft “as initially proposed would promote a non-GMO [genetically modified organism], organic, and fair trade (i.e., fair labor) standard for agriculture that exceeds nearly all existing organic and nonorganic practices in U.S. agriculture.” The draft has undergone a number of changes, including a narrowing of its scope, since its introduction, and the committee working to develop it has expanded to include some industry interests. The article also discusses…
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
Multidistrict litigation (MDL) plaintiffs who challenged claims that Tyson products were made from “chickens raised without antibiotics” have sought approval of a settlement reached with the company. In re: Tyson Foods Inc., Chicken Raised Without Antibiotics Consumer Litigation, MDL No. 1982 (D. Md., motion filed January 12, 2010). Under the terms of the settlement, Tyson will pay up to $5 million to three tiers of plaintiffs: those who can provide receipts (they can recover up to $50); those who can estimate how much they spent on the products, how often they purchased them and where the purchases were made (they can recover up to $10) and those who simply claim they purchased the product at least once and submit a claim for a $5 coupon instead of cash. Four named plaintiffs in the suits consolidated before the MDL court for pre-trial proceedings and four class members who were deposed will receive…
A federal court has certified class claims against General Mills alleging that the company’s advertising for its premium-priced Yo-Plus® yogurt violates the Florida Deceptive and Unfair Trade Practices Act because the product does not provide any digestive health benefits that cannot be obtained from eating normal yogurt. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., decided January 11, 2010). The named plaintiff claimed that the company’s ads and promotional materials convinced her to try the product and that she consumed it on a regular basis for about a year. She claimed that her digestive health was the same before, during and after eating Yo-Plus® and thus, the company’s claims for digestive health benefits beyond those provided by normal yogurt are false, misleading and likely to deceive the public. She also alleged breach of express warranty and sought to certify a class of “[a]ll persons who purchased YoPlus in the State…
The First Circuit Court of Appeals has upheld an injunction against the enforcement of a Massachusetts law that regulated wine shipments in a manner that changed “the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts wineries and significantly burdens out-of-state wineries.” Family Winemakers of Cal. v. Jenkins, No. 09-1169 (1st Cir., decided January 14, 2010). The statute at issue gave small wineries (those producing 30,000 gallons or less of grape wine annually) the most options for selling to consumers, either by direct shipment or through wholesalers and retailers. According to the court, most Massachusetts wineries are small wineries. Large wineries could sell either through wholesalers or by applying for a special license to ship directly to consumers; they could not do both. Apparently, Massachusetts has no large wineries. A group of California wineries and Massachusetts residents challenged the law, claiming it violated the Commerce Clause by effectively…
The American Meat Institute (AMI) has apparently submitted comments to the Office of U.S. Trade Representative contending that country of-origin labeling (COOL) requirements violate U.S. international trade obligations. According to AMI, the nation’s “credibility is undermined when U.S. legislation violates America’s commitments” under international agreements. AMI claims that the COOL requirements “are not consistent with U.S. obligations” under World Trade Organization (WTO) and North American Free Trade Agreement obligations or the General Agreement on Tariffs and Trade. The organization apparently characterizes COOL as “de facto discrimination against foreign products, a result even contemplated by sponsors of the legislation who declared that it would be ‘helpful to a lot of American agricultural producers’ and force companies to rely ‘on our independent producers here in this country.’” Canada and Mexico have asked the WTO to rule on the legality of the COOL law. See AMI Press Release, January 8, 2010; meatingplace.com, January 11,…
The National Salt Reduction Initiative (NSRI) has called on companies “to reduce the salt levels in 61 categories of packaged food and 25 classes of restaurant food,” issuing a list of proposed targets designed to cut the salt in these foods by 25 percent over five years. Led by the New York City Health Department, this partnership of cities, states and national health organizations apparently solicited input from the food industry in developing the proposed targets. NSRI will also accept additional comments until February 1, “especially from companies that have not yet participated in the target-setting process, as well as consumer organizations and other interested parties.” “Americans consume roughly twice the recommended limit of salt each day–causing widespread high blood pressure and placing millions at risk of heart attack and stroke–in ways that they cannot control on their own,” stated a January 11, 2010, press release, which noted that “some popular…
The U.S. Department of Agriculture’s Agriculture Marketing Service has issued a proposed rule that would amend the National List of Allowed and Prohibited Substances (National List) to reflect the recommendations of the National Organic Program Board (NOPB). The National List “identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production,” as well as identifying “synthetic, nonsynthetic nonagricultural and nonorganic agricultural substances that may be used in organic handling.” The proposed rule would alter the National List to “amend the annotation for one exempted material (tetracycline) and add one substance (sulfurous acid) for use in organic crop production.” AMS will accept comments on the proposed rule until March 15, 2010. See Federal Register, January 12, 2009.
The American Soybean Association has reportedly submitted comments expressing concerns about agribusiness concentration to the Department of Justice and the U.S. Department of Agriculture (USDA) in response to their recent initiative on competition and regulatory issues in the agriculture industry. According to ASA President Rob Joslin, “In recent years, we have seen increased consolidation in various agricultural industries. Many farmers have questioned why high levels of concentration have not been more thoroughly reviewed and analyzed by the federal government to determine their impact on competition.” See Southeast Farm Press, January 11, 2010. The agencies announced that they would be holding a number of joint public workshops to explore these issues in a November 2009 news release. Discussions about issues for crop farmers, “including seed technology, vertical integration, market transparency and buyer power” will take place in Ankeny, Iowa, on March 12, 2010; production contracts, concentration and buyer power in the poultry industry…
The U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) has published its notice about the availability of a draft environmental impact statement (EIS) for genetically modified (GM) alfalfa. The agency was required to prepare the EIS by a Ninth Circuit Court of Appeals ruling finding that APHIS violated the National Environmental Protection Act by failing to do so in connection with its determination that the crop could be deregulated. Comments must be submitted by February 16, 2010, and public meetings will be held on January 19 in Las Vegas; February 3 in Kearney, Nebraska; February 4 in Lincoln, Nebraska; and February 9 in Riverdale, Maryland. See Federal Register, January 12, 2010. Meanwhile, Food & Water Watch, a consumer advocacy organization, is calling on supporters to take action on the EIS by telling the USDA “loud and clear that consumers want foods that are free from genetic…
