Food Law Prof Blog

USDA and HHS Continue Food Safety Working Group Efforts

FDA News Release(12/9/09):

Agriculture Secretary Tom Vilsack and Health and Human Services (HHS) Secretary Kathleen Sebelius today commended the Department of Homeland Security for opening a center devoted to ensuring the safety of foods imported to the United States.  The Commercial Targeting and Analysis Center (CTAC) for Import Safety is operating under the direction of Customs and Border Protection (CBP).  It was created on the recommendation of President Obama’s Food Safety Working Group, which is charged with advising the President on how to upgrade the U.S. food safety system for the 21st century. 

“As co-chairs of the Food Safety Working Group, we are committed to improving the safety of food produced in the United States, and also improving the safety of all the food that makes it to the American consumers’ dinner tables,” said Secretary Sebelius.  “With so much food coming from abroad, we must do all we can to ensure that it conforms to the same safety standards as our own food safety systems.”

“As part of the Food Safety Working Group’s efforts to strengthen the food safety system in this country, we identified close cooperation between federal agencies as a key to achieving real progress,” said Secretary Vilsack. “The new CTAC announced today is an important step toward the type of collaboration necessary to ensure that Americans have access to a safe and healthy food supply.”

“In addition to guarding against terrorism and crime, securing our borders and facilitating legitimate trade involve ensuring the safety of imported products,” said Department of Homeland Security Secretary Janet Napolitano. “This new targeting center will enhance the inspection of goods entering our country by centralizing and strengthening federal efforts to protect U.S. consumers.”

The import safety CTAC, located in Washington, D.C., is one of CBP’s six commercial targeting centers in the U.S.   It will specifically target shipments of imported cargo, including food, for possible safety violations.  The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) and other partnering government agencies, including the U.S. Food and Drug Administration (FDA), the Environmental Protection Agency, and the Consumer Product Safety Commission, will provide on-site expertise at the Center.   

“The expertise FSIS, FDA, and our other partners bring to the table is invaluable to ensuring that America’s imported food supply is safe,” said CBP Acting Commissioner Jayson P. Ahern.  “We look forward to continued cooperation with the Food Safety Working Group and its future recommendations.”

As part of its collaboration with CBP, FSIS will extend its enforcement efforts to target ineligible imports investigate suspicious shipments based on manifest information filed prior to the arrival of goods at U.S. ports.

For more information of the Food Safety Working Group, please visit www.foodsafetyworkinggroup.gov.

The most important information on a food label?

The EU is considering uniform nutritional labeling, and a recent study showed that Irish consumers are paying attention.  The traffic light system is fine, merely color coding the nutrient amounts, not so much.

A summary article on Food Navigator.com describes the survey. This is the bit that really caught my attention:

“The main reasons consumers now read food labelling is to look for nutritional and calorific information, whereas in 2002 the key reason to read a label was to check the best before date. This indicates that people are concerned about healthy eating and want to know more about the nutritional aspects of the food they are buying.”

That said, the respondents still cited the use by or best before date as the single most important piece of information on food labels, followed by the list of ingredients and the name of the food.

I'm not even sure why I read food labels these days.  I can't stop myself.  DMB

Liquid Dietary Supplement vs. Beverage -- FDA Guidance

What is a beverage?  Beverages are conventional foods that should not be marketed as dietary supplements. And dietary supplements are not supposed to be represented as conventional foods.  It's a matter of getting the product, the label, and the marketing plans to line up on the same side of the line.  The line is blurry.  FDA released draft industry guidance yesterday to help make it clearer:

Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods

. . . The Food and Drug Administration (FDA) has observed and become concerned about two trends in the marketing of beverages.  First, we have seen an increase in the marketing of beverages as dietary supplements, in spite of the fact that the packaging and labeling of many liquid products represent the products as conventional foods.  Products that are represented as conventional foods do not meet the statutory definition of a dietary supplement in section 201(ff) of the FFDCA (21 U.S.C. 321(ff)) and must meet the regulatory requirements that apply to conventional foods. 

Second, FDA has seen a growth in the marketplace of beverages and other conventional foods that contain novel ingredients, such as added botanical ingredients or their extracts.  Some of these ingredients have not previously been used in conventional foods and may be unapproved food additives. In addition, ingredients that have been present in the food supply for many years are now being added to beverages and other conventional foods at levels in excess of their traditional use levels or in new beverages or other conventional foods.  This trend raises questions regarding whether these ingredients are unapproved food additives when used at higher levels or under other new conditions of use.  Some foods with novel ingredients also bear claims that misbrand the product or otherwise violate the FFDCA.

read the whole thing

 

$100 million lawsuit filed in E coli case

Yesterday (Friday, 12/4/09) Bill Marler filed a lawsuit seeking $100 million in damages for Stephanie Smith, the 22 year old dancer left paralyzed after eating a burger tainted with E. coli 0157:H7.

Read about the lawsuit in the St. Paul Pioneer Press (my home town newspaper).

Read about it on Marler Blog, Bill Marler's own food poisoning law blog:

This morning’s papers across the United States are covered with paralyzed, former dancer, Stephanie Smith’s battle against food giant, Cargill. Cargill’s hamburger, sold at Wal-Mart, nearly killed Stephanie with Hemolytic Uremic Syndrome, and has left her, with brain damage, with failing kidneys, with no bowel or bladder control, and facing a life confined to a bed or a wheel chair. Despite her hard work, Stephanie will not dance again. As I type this in my kitchen, my three daughters are helping my wife decorate the Christmas tree. Like you, I cannot imagine seeing one of them in Stephanie’s condition – from eating a hamburger.

Iowa County providing incentives for organic production -- goal is all organic

Using tax breaks and other incentives, Woodbury County, Iowa is encouraging organic farming.  From the New York Times (the original source is Greenwire):

SIOUX CITY, Iowa -- In the midst of sprawling corn and soybean fields, industrial animal-processing plants and ethanol refineries, Woodbury County is . . . trying to go whole-hog into organic agriculture.

"This is a totally new direction for us," said Debi Durham, president and CEO of the Siouxland Chamber of Commerce. . . . "Within the next 10 years, we will be known as the organic capital -- of the world."

Such a prediction is almost mind-boggling, considering that the county had not one registered acre of organic farmland in the 2007 U.S. Department of Agriculture census -- and this in a county with a total 450,000 acres of farmland.

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Large organic farm decertified for four years

It all boils down to keeping and producing records.  From a Cornucopia Institute press release:

In an investigation and legal case that dragged on for almost four years, one of the largest organic cattle producers in the United States, Promiseland Livestock, LLC, was suspended from organic commerce, along with its owner and key employees, for four years. The penalty was part of an order issued by administrative law judge Peter Davenport in Washington, DC on November 25.

Promiseland, a multimillion dollar operation with facilities in Missouri and Nebraska, including over 13,000 acres of crop land, and managing 22,000 head of beef and dairy cattle, had been accused of multiple improprieties in formal legal complaints, including not feeding organic grain to cattle, selling fraudulent organic feed and "laundering" conventional cattle as organic.

"We are pleased that justice has been served in the Promiseland matter," said Mark A. Kastel, Senior Farm Policy Analyst for the Wisconsin-based Cornucopia Institute. Scrutiny from Cornucopia, one of the industry's most aggressive independent watchdogs, was part of the genesis for the comprehensive USDA investigation and subsequent legal proceedings.

more of the press release

USDA Findings of Fact and Order -- (contains a good description of how the organic certification process works.  I may use this document in my Food Law Class. -- DMB)

the Complaint dated June 4, 2008

Poultry Purity

First Consumer Reports reported that most store-bought broilers are contaminated with Campylobacter or Salmonella, the two most common sources of food poisoning:

Campylobacter was in 62 percent of the chickens, salmonella was in 14 percent, and both bacteria were in 9 percent. Only 34 percent of the birds were clear of both pathogens. That's double the percentage of clean birds we found in our 2007 report but far less than the 51 percent in our 2003 report.

The National Chicken Council says the findings are overblown:

Chicken is safe. Like all fresh foods, raw chicken may have some microorganisms present, but these are destroyed by the heat of normal cooking. Consumers are encouraged to follow the safe handling and cooking instructions printed on every package of fresh meat and poultry sold in this country.

According to Reuters, USDA reports lower levels of contamination, but Consumers Union tested products further along in the retail chain.

Food Blogs in the ABA Top 100 blogs -- Marlerblog and FDA Law Blog

Two of my favorite blogs have made the Third Annual ABA Journal Blawg 100.  The ABA (American Bar Association) invites online readers to vote for their favorites.

Bill Marler's MarlerBlog has been my favorite source of food safety information.  Bill posts often, uses humor and graphics, and is right on top of every foodborne pathogen outbreak.  Here's what the ABA says:

Marler Blog is the flagship of Seattle lawyer Bill Marler’s fleet of 10 blogs devoted to food-borne illness. It covers reports of outbreaks and adds commentary on how governments and corporations should respond to them.

Twitter: @bmarler

Quick Take: Marler took his show on the road, appearing on Larry King Live in October as an expert on food-borne illness.

FDA Law Blog covers everything to do with the FDA, which means a lot of drug and medical device news that mostly goes over my head, but when there is Food News from FDA, this blog is really helpful in clarifying the legal issues and providing context. 

At FDA Law Blog, lawyers from Hyman, Phelps & McNamara in Washington, D.C., cover conferences, court rulings and Federal Trade Commission actions related to the Food and Drug Administration, as well as FDA an­nouncements and draft guidance documents. It also tracks legislation and citizen petitions related to the Food, Drug and Cosmetic Act.

Twitter: @fdalawblog

Quick Take: Reader Cheryl Graham works at the FDA but says she de­pends on the blog for up-to-date regulatory information. “There is no one within the agency that does what this blog provides.”

A Just and Sustainable Recovery: Bread for the World Institute’s 2010 Hunger Report

A Just and Sustainable Recovery: Bread for the World Institute’s 2010 Hunger Report  is now available online. This year’s report focuses on green jobs and domestic economy, but still includes international statistics on food security, poverty, and development. The 2010 report includes new data on economic mobility, housing, health and climate change." [Christine Matthews, Librarian - Bread for the World Institute]

Kellogg's discontinues cereal box "Immunity" claims

Kellogg has announced that it will stop using the big banner on the Cocoa Krispies proclaiming that the cereal "helps support your child's immunity." 

Here's a November 5, 2009, article from the Wall Street Journal:
Kellogg: Rice Krispies Won’t Protect Your Kid From Swine Flu

And here's the Kellogg's Press Release

Now that you've eaten your turkey: Poison-free Poultry Act of 2009

A bill introduced Wednesday would ban the use of arsenic-containing poultry feed. Read about it on Food Safety News:

U.S. Representative Steve Israel (D-NY) introduced legislation Wednesday to ban the use of the an arsenical compound used in animal production.

The Poison-Free Poultry Act of 2009, or H.R. 3624, would amend the Federal Food, Drug, and Cosmetic Act to ban roxarsone, an arsenical antimicrobial drug used to ward off infection in industrial swine and poultry production.

 

more

The bill itself is available here: HR 3624

FDA Seeks Permanent Injunction Against Sharkco Seafood International Inc.

FDA News Release:

The U.S. Food and Drug Administration (FDA) is seeking a permanent injunction against Sharkco Seafood International Inc., located in Venice, La. The injunction is intended to stop the seafood processing company from distributing scombrotoxin-forming fish in interstate commerce. Consumption of scombrotoxin-forming fish that are not properly preserved or refrigeratedcan result in scombroid food poisoning, a foodborne illness that results from eating spoiled or decayed fish. Scombrotoxin-forming fish most commonly include mackerel, sardines, tuna, bluefish, and mahi mahi.

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USDA Report Reveals Highest Rate Of Food Insecurity Since Report Was Initiated In 1995

USDA News Release, Nov. 16, 2009:

USDA's Economic Research Service's (ERS) today released its annual report on Household Food Security in the U.S., which revealed that in 2008, 17 million households, or 14.6 percent, were food insecure and families had difficulty putting enough food on the table at times during the year. This is an increase from 13 million households, or 11.1 percent, in 2007. The 2008 figures represent the highest level observed since nationally representative food security surveys were initiated in 1995.

more

Cargill Canola Stopped at Border (from Food Safety News)

Cargill Canola Stopped At Border By FDA

by Dan Flynn | Nov 17, 2009

It is not too far-fetched to say that trainloads of canola oil manufactured at Cargill Limited's seed processing facility at Clavet, Saskatchewan are being turned back at the border by the U.S. Food & Drug Administration (FDA).

October's "import refusal report" by FDA shows three Cargill canola oil shipments being turned back on Oct. 12 and then another 14 shipments via the Burlington Northern Santa Fe Railroad being stopped on Oct. 30.  It was to be used for animal feed in the U.S.

more

Click on the link to keep reading.  The canola was refused because of possible Salmonella contamination.  This caught my eye because I was on a panel on Importation issues just last month for the Minnesota State Bar Association Food and Drug Law Section. 

FDA and Oyster Policy (from Food Safety News)

From Food Safety News:

Caving under the weight of a political firestorm over its proposed rule to reduce Vibrio vulnificus poisoning from raw oysters, the U.S. Food and Drug Administration (FDA) announced yesterday it is putting the proposal on hold to "further examine" the rule and its impact on the oyster industry.

Last month, the FDA announced its intention to begin requiring the processing of raw oysters during summer months to limit the risk of Vibrio vulnificis, a deadly bacterium naturally pervasive in Gulf Coast waters during summer months. The rule was expected to take effect in 2011.

 

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And just in case this makes you think of Lewis Carroll, here is The Walrus and the Carpenter.

The sun was shining on the sea,
Shining with all his might:
He did his very best to make
The billows smooth and bright--
And this was odd, because it was
The middle of the night.

The moon was shining sulkily,
Because she thought the sun
Had got no business to be there
After the day was done--
"It's very rude of him," she said,
"To come and spoil the fun!"

continue

FDA Issues 2009 FDA Food Code

The FDA released the 2009 FDA Food Code last week.  Here's an excerpt from the Press Announcement:

The 2009 edition of the Food Code is the seventh full edition published by the FDA. The previous full edition was released in 2005 with a supplement published in 2007.

Significant enhancements to the 2009 FDA Food Code include:

• Each provision in the FDA Food Code is now designated as a “Priority Item,” a “Priority Foundation Item,” or a “Core Item,” to assist the industry and regulatory community in prioritizing their food safety interventions and their inspections.  These designations are based on a qualitative risk assessment and replace the use of “Critical” and “Non-Critical” designations in previous editions of the FDA Food Code. 
• Cut leafy greens are now included among the foods that require time and temperature control for safety and a new supporting reference document, “Recommendations to Food Establishments for Serving or Selling Cut Leafy Greens,” is summarized in Annex 2.
  
• Requirements are added to improve food worker awareness of food allergen concerns in the food service and retail setting.
  
• Serving hamburgers and other ground meats in an undercooked form upon a consumer’s request is no longer an option for items offered on a children’s menu.
  
• A new definition and criteria are added in a new FDA Food Code section for the non-continuous cooking of foods comprised of raw animal products to address the safety of this cooking method.
  
• Several requirements related to the effective cleaning and sanitizing of equipment and surfaces are enhanced or clarified.

Here's the Code itself: FDA 2009 Food Code

FDA/CFSAN: New Report Recommends Enhanced Food Tracing Guidelines

From an FDA Press Announcement (Nov 14, 2009):

The Food and Drug Administration's Center for Food Safety and Applied Nutrition (CFSAN) today released a report from the Institute of Food Technologists (IFT), which recommends clear objectives be set for all users of a simpler, globally accepted food supply chain that can benefit from existing commercial systems.

CFSAN commissioned the IFT report in 2008 as part of the agency's ongoing examination of food product tracing practices, and its commitment to improve the ability of government and industry to trace commercially distributed food products potentially of risk to U.S. consumers. The IFT is a nonprofit scientific society focusing on the science of food.

Food can become contaminated at many different steps in the supply chain. Experience in conducting foodborne disease outbreak investigations suggests that improved product tracing abilities could help identify products associated with disease more quickly, get risky products off the market faster, and reduce the number of illnesses associated with foodborne illness outbreaks.

Read more of the FDA Press Announcement

Read IFT's own discussion of the study: Tactics for Improving Food Product Traceability

I am a member of the Institute of Food Technologists.  It does indeed focus on the science of food, primarily of course, the science of processed foods, but it also focuses very much on the marketing of processed foods. The monthly magazine, Food Technology, is beautiful and fascinating.

FDA Warning Letters to Caffeinated Alcohol drink makers

From the Wall Street Journal:

WASHINGTON -- The Food and Drug Administration is taking aim at caffeinated alcoholic drinks, saying it will pull them off the market unless manufacturers can prove the beverages are safe to drink.

On Friday, the FDA sent letters to nearly 30 companies, giving them 30 days to provide evidence that their drinks don't pose health or safety risks.

The FDA hasn't approved the use of caffeine in alcoholic beverages, and companies might have to show that experts generally think mixing caffeine and alcohol is safe for consumers.

Comments posted on the WSJ website ask whether this will make it illegal to serve rum and Coke, Irish coffee, or black/white Russians.

The FDA Press Announcement

Country of Origing Labeling -- Protectionism? Canada thinks so

From the New York Times (Oct. 12, 2009 -- still worth posting):

Canada Seeks Redress on Food-Labeling Law

By CLIFFORD KRAUSS

Ratcheting up a trade dispute with the Obama administration, Canada is asking the World Trade Organization to rule against an American food-labeling law that it claims is helping to destroy much of its hog-farming industry.

The dispute concerns an American rule requiring that food products be labeled by country of origin. The Obama administration denies that the labeling policy is an act of protectionism, even though it is driving American pork producers to decrease purchases of Canadian hogs, traditionally about 7 percent of the pork consumed in the United States.

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FDA Grants to Further Food and Feed Safety

FDA New Release, Oct. 9, 2009:

FDA Awards $17.5 Million in Grants to Further Food and Feed Safety

The U.S. Food and Drug Administration today announced that it has awarded 83 grants in FY2009 totaling $17.5 million to state and local regulatory agencies to boost food and feed safety initiatives among federal, state, and local partners.

The grants fund major cooperative agreements in four major areas: response, intervention, innovation and prevention.

"These cooperative agreements support and enhance local food safety efforts," said Michael Chappell, the FDA's acting associate commissioner for regulatory affairs. "The grants are another step in the FDA’s continuing efforts to build an integrated food safety system between federal, state, and local partners."

The grants and their recipients include:  (Click here to go to the FDA website to read the rest.)