The U.S. Department of Agriculture’s National Organic Program (NOP) has issued a final rule revising the National List of Allowed and Prohibited Substances with regard to the use of tetracycline, formic acid and attapulgite during the production and processing of organic crops and food ingredients. According to NOP, the most recent iteration of the National List permitted the use of tetracycline “for fire blight control only” in apple, pear and other organic fruit crops until October 21, 2012. The final rule has amended the National List to specify that the substance can be used to control fire blight in apple and pear crops only and to extend the expiration date until October 12, 2014. In addition, NOP has added formic acid to the National List “solely for use as a pesticide within honeybee colonies” to suppress infestations of Varroa mites and approved attapulgite, a substance generally regarded as safe by the…
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“The fact is, organic food has become a wildly lucrative business for Big Food and a premium-price-means-premium-profit section of the grocery store,” writes Times correspondent Stephanie Strom in this July 7, 2012, article about perceived conflicts of interest on the National Organic Standards Board (NOSB). According to Strom, who tracks the consolidation of organic brands under larger corporations, “[t]he industry’s image—contented cows grazing on the green hills of family-owned farms—is mostly pure fantasy. Or rather, pure marketing. Big Food, it turns out, has spawned what might be called Big Organic.” Strom argues that Big Organic has “come to dominate” the 15-member NOSB, which determines the national list of nonorganic ingredients permitted in “certified organic” products. In particular, she claims that some seats reserved for farmers or scientific experts have gone to corporate executives or other representatives from large organic food processors with a stake in promoting their own production methods.…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
The Court of Justice of the European Union (EU) has agreed, in part, with the European Commission’s challenge to requirements imposed by the Dutch government on contractors providing organic and fair trade products in its automatic coffee machines. EC v. Kingdom of the Netherlands, No. C-368/10 (E.C.J., decided May 10, 2012). According to the Court, government requirements for the award of contracts may be based on environmental or social criteria, but the criteria must be clear and the government must allow proof “that a product satisfies those criteria by all appropriate means.” The Court also held that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.” To the extent that the Dutch requirements fell short of these standards, the Court found that the government failed to fulfill its obligations under the award of…
A federal court in New York has dismissed, for lack of jurisdiction, the claims filed by numerous organic farming interests seeking a declaration that they are not infringing Monsanto’s genetically modified (GM) seed patents, the patents are invalid and unenforceable and the company would not be entitled to remedies against them. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., decided February 24, 2012). According to the court, because Monsanto has an express policy not to bring infringement actions against a farmer whose fields have trace amounts of its seed or traits “as a result of inadvertent means,” such as seed drift, cross-pollination or commingling with tainted equipment, the plaintiffs are unable to establish a substantial controversy or an injury traceable to the defendant. While Monsanto has brought 144 infringement actions against farmers over a 13-year period, the court found this insignificant given the 2 million farms currently…
A recent study has reportedly detected inorganic arsenic (Asi) in organic brown rice syrup (OBRS), a prepared foods sweetener sometimes used in lieu of high-fructose corn syrup. Brian P. Jackson, et al., “Arsenic, Organic Foods, and Brown Rice Syrup,” Environmental Health Perspectives, February 2012. Researchers evidently sought to determine “the concentration and speciation of arsenic (As) in commercially available brown rice syrups, and in products containing OBRS including toddler formula, cereal/energy bars, and high energy foods used by endurance athletes.” Their results purportedly indicated that OBRS “can contain high concentrations of Asi and dimethylarsenate (DMA),” raising concerns about products such as organic toddler milk formula that use OBRS as a primary ingredient. Meanwhile, the Food and Drug Administration (FDA) issued a February 17, 2012, statement pledging to expand “its surveillance activities” in response to the study’s claims. The agency has also commissioned its own research on arsenic in rice and rice…
The Office of the U.S. Trade Representative (USTR) has announced a “historic new partnership” with the European Union that recognizes its organic standards as essentially equivalent to those administered by the U.S. Department of Agriculture (USDA). Effective June 1, 2012, the trade agreement will allow organic products certified by EU or USDA officials to be sold “as organic in either region.” “Previously, growers and companies wanting to trade products on both sides of the Atlantic had to obtain separate certifications to two standards, which meant a double set of fees, inspections and paperwork,” explains a February 15, 2012, USTR press release. “This partnership eliminates significant barriers, especially for small and medium-sized organic producers. All products meeting the terms of the partnership can be labeled as certified organic produce, meat, cereal, or wine.” According to USTR, the two parties conducted “thorough on-site audits” to ensure that their organic programs were compatible.…
The U.S. Department of Agriculture’s National Organic Program (NOP) has issued a proposed rule that would regulate the use of synthetic methionine in organic poultry production after a current interim final rule expires on October 1, 2012. According to a February 6, 2012, Federal Register notice, the rule would amend the National List of Allowed and Prohibited Substances (National List) to permit the following maximum levels of synthetic methionine per ton of feed: (i) two pounds for laying and broiler chickens; and (ii) three pounds for turkey and all other poultry. NOP has requested public comments on the proposed rule by April 6. The National List currently classifies methionine “as an essential amino acid because it cannot be biologically produced by poultry and is necessary to maintain viability.” The substance occurs naturally in feed sources that include blood meal, fish meal, crab meal, corn gluten meal, alfalfa meal, and sunflower…
According to the Organic Trade Association (OTA), Ohio has decided not to pursue regulations that would prohibit dairy producers from including on their labels statements that organic dairy products are made without antibiotics, pesticides or synthetic hormones. The Sixth Circuit Court of Appeals determined in September 2010 that those parts of the rule involving hormone-free statements violated the First Amendment and remanded the action to the federal district court for further development of the record as to the rule’s ban on composition claims related to antibiotics and pesticides. More details about the court’s ruling appear in Issue 366 of this Update. The trade group stated, “Ohio has now agreed to abandon the rule rather than trying to revive it, recognizing that the First Amendment allows organic dairy products to proudly state that they are produced in accordance with organic standards without the use of synthetic growth hormones, pesticides, or antibiotics.”…
The Cornucopia Institute has published a report titled “Cereal Crimes: How ‘Natural’ Claims Deceive Consumers and Undermine the Organic Label—A Look Down the Cereal and Granola Aisle.” Noting that, with one exception, no government agency has defined what the term “natural” means on food packages, the organization explains how companies that make cereal products exploit consumer confusion over the difference between “organic” and “natural” products, charging a premium for “natural” products that actually contain ingredients containing pesticides or ingredients grown and processed with genetically engineered (GE) organisms. The report, accompanied by an “online scorecard with nearly 50 cereal and granola brands, available on the Cornucopia website,” (i) details current legal requirements that distinguish organic from “natural” claims; (ii) discusses individual company definitions of “natural” to demonstrate “how vastly different they can be”; (iii) summarizes the results of consumer polling showing that many “erroneously believe that the ‘natural’ label has merit,…
