The American Bar Association’s Litigation Section sponsored a “Hot Topics in Food Law” program via the Web and telephone on February 10, 2009. Speakers included in-house counsel for a large food manufacturing company, a Grocery Manufacturers Association (GMA) representative and Stephen Gardner, the director of litigation for the Center for Science in the Public Interest (CSPI). They focused on the most recent “ingredient-driven” foodborne contamination outbreaks, including pet food and infant formula containing melamine and peanut butter products tainted with Salmonella. In light of such incidents, the speakers emphasized that food companies must carefully manage their supply chains through independent, reliable audits and the establishment and communication of clear, achievable food safety standards. After the recent peanut butter recall, companies will likely focus on company-to-company tracing issues. A speaker representing the outside counsel perspective focused on bisphenol A and discussed recent initiatives to ban it in Canada and list it…
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Minneapolis and St. Paul are reportedly developing ordinances to require some restaurants to remove trans fats from their menus and to list calories alongside portions. St. Paul would require chain restaurants with 15 or more locations nationwide to abide by both proposed ordinances, while Minneapolis would apply its menu labeling regulation only to chain restaurants and its trans fat ban to all restaurants, groceries and bakeries. The city councils could take both measures under consideration as early as February. Meanwhile, the executive president of the Minnesota Restaurant Association, David Siegel, told reporters that most restaurants have already phased out trans fat in response to public demand. In addition, he noted a growing desire for a federal benchmark with respect to menu labeling laws. “Let’s give information to consumers and create a national standard like we did in grocery stores,” said Siegel, pointing to the cost and frustration of navigating the…
According to NowPublic.com, a self-proclaimed participatory online news network, the food industry, facing legislative initiatives that would require posting calorie and other nutritional information on restaurant menu boards, is fighting back with state-level preemption laws. Ohio recently approved legislation (H.B. 217) giving the state’s Director of Agriculture the sole authority to regulate how and whether food service operations must provide food nutrition information to the public, thus putting an end to the disclosure movement that was apparently gaining momentum at the local level there. Legislation adopted in Georgia (H.B. 1303) would prevent political subdivisions from adopting similar local laws. NowPublic notes that the restaurant industry lost its federal preemption argument when mounting a challenge in court to a menu disclosure law that took effect in New York City. The industry then apparently “changed its strategy” by seeking legislation in Congress that would create federal preemption of calorie posting laws and in…
This article addresses one possible explanation for a phenomenon that New York Times journalist John Tierney refers to as “the American obesity paradox,” which he describes as the failure of America’s health food obsession to curb obesity rates. Tierney and Pierre Chandon, an assistant marketing professor with the Institut Européen d’Administration des Affaires (INSEAD), asked separate groups of New York City residents and tourists to estimate the calories of two nearly identical meals from Applebee’s. The first meal contained a salad and a soft drink; the second meal was identical, but added a 100-calorie package of crackers labeled “Trans Fat Free.” The U.S. residents overestimated the calories in the first meal, but underestimated them in the second one. “Just as Dr. Chandon predicted, the trans-fat-free label on the crackers seemed to imbue them with a health halo that magically subtracted calories from the rest of the meal,” writes Tierney, who…
The Canadian government has reportedly filed a complaint with the World Trade Organization (WTO), challenging the U.S. country-of-origin labeling (COOL) law. According to a news source, Canada alleges that COOL will impose unnecessary costs on meatpackers that use Canadian livestock and could lead to additional and more stringent labeling requirements in other countries. Canadian Trade Minister Stockwell Day was quoted as saying, “We believe that the country-of-origin legislation is creating undue trade restrictions to the detriment of Canadian exporters.” The complaint initiates a consultation period, which, if unsuccessful, could lead to resolution by a WTO dispute settlement panel. Canadian beef and pork producers recently called on the government to institute such action; further details about their concerns appear in issue 281 of this Update. See Meatingplace.com, December 2, 2008.
According to a press report, the D.C. Circuit Court of Appeals has refused the request of Whole Foods Market, Inc. that the court reconsider, en banc, a July 2008 decision by a three-judge appellate court panel reviving the Federal Trade Commission’s antitrust challenge to the company’s merger with Wild Oats Markets, Inc. More information about the panel’s divided ruling appears in issue 269 of this Update. The commission will conduct administrative hearings on the merger in February 2009. While the merger was completed in August 2007, the commission could apparently try to stop further integration of the companies’ operations or require Whole Foods to sell some properties. In a statement, Whole Foods reportedly indicated its intent to vigorously defend the administrative proceedings, “even though we believe it is an unfair process and a violation of the company’s due process rights.” See Dow Jones Newswires, November 21, 2008. Meanwhile, a Chicago…
The Philadelphia City Council this week adopted menu labeling laws that will require chain restaurants with more than 15 outlets to provide extensive nutritional information on printed menus and to list calories on menu boards. Starting January 1, 2010, national and local chains must disclose calories, saturated and trans fats, sodium, and carbohydrates on printed menus in the same typeface used for food descriptions and price. Opposed by the Pennsylvania Restaurant Association for its “one-size-fits-all” approach, the regulation also drew criticism from some council members who viewed the bill as an unnecessary burden on the restaurants. The Center for Science in the Public Interest, however, praised the new rules as a “useful incentive to the restaurant industry to expand the number and variety of healthy choices on their menus.” See CSPI Press Release, November 6, 2008; Philadelphia Inquirer, November 7, 2008; Meatingplace.com, November 10, 2008. In a related development, the Seattle Post-Intelligencer reported…
Several of the nation’s largest food and beverage companies have reportedly agreed to market their products under a common nutritional standard and logo designed to lessen consumer confusion at the supermarket. The “Smart Choices Program” allows participating manufacturers to display a “check mark” logo alongside calorie and serving size information on the front of products that meet specific nutritional thresholds set by a coalition of scientists, retailers and industry experts and based on federal dietary recommendations. These products cannot exceed the program’s limits for total fats, saturated fats, added sugars, or sodium. In addition, they must contain several “nutrients to encourage” that include calcium, potassium, fiber, magnesium, vitamin A, vitamin C, and vitamin E. Fruits and vegetables, whole grain, and low- or no-fat dairy products are also eligible for the marketing claim. “It’s simple, it’s easy-to-use, it’s consensus based, it’s science based,” said one spokesperson for Unilever PLC. “We would hope…
A federal court in Ohio has dismissed the putative class action claims filed by a woman who alleged that Kroger Co. deceived the public by selling its beef as aged, when it was actually selling beef packaged and shipped almost immediately after slaughter. St. Clair v. Kroger Co., No. 7-03798 (N.D. Ohio, decided October 14, 2008). The case was originally filed in state court and removed on defendant’s motion under the Class Action Fairness Act of 2005 (CAFA). Because the plaintiff failed to allege that Kroger had prior notice that its conduct was “deceptive or unconscionable,” the court was compelled under Ohio’s Consumer Sales Practices Act (CSPA) to dismiss the class claims. Prior notice, under the law, must be “in the form of a rule adopted by the state Attorney General or a judicial decision made publicly available,” neither of which was referred to in the complaint So ruling, the…
USDA’s Food Safety and Inspection Service (FSIS) is seeking comments on policies that regulate whether processors can use animal raising claims in labeling for meat and poultry products. “[R]ecent experience with labeling claims related to the raising of poultry have led FSIS to initiate a review of its evaluation and approval process for labels of meat and poultry products that contain animal raising claims,” stated the agency in a recent Federal Register notice. Animal raising claims include language that describes a product as “raised without antibiotics”; “not fed animal by-products”; “free range”; “vegetarian fed diet”; and “raised with added hormones.” FSIS currently evaluates such claims “by reviewing testimonials, affidavits, animal product protocols, and other relevant documentation provided by animal producers.” The agency is soliciting public input on this approval process, which also allows meat and poultry establishments to submit certification from outside organizations or entities in support of animal raising claims.…
