Food Law Prof Blog

Yogurt Standards

Two wees ago, the FDA proposed a change to the standards of identity for yogurt. FDA Law Blog has a nice post on the proposed rules: FDA Law Blog
The proposal itself is in the Federal Register (here).

From FDA Law Blog:

FDA has issued a proposed rule that would amend the standard of identity for yogurt and revoke the regulations on standards of identity for lowfat and nonfat yogurt. Under § 401 of the FDC Act, FDA has the authority to establish a reasonable definition and standard of identity for any food to “promote honesty and fair dealing in the interest of consumers.” Currently, there are separate standards of identity for yogurt, lowfat yogurt, and nonfat yogurt. Under FDA’s proposal, there would be a single standard of identity for yogurt. This standard of identity could be modified to produce lower-fat versions under 21 C.F.R. 130.10, which sets out requirements for foods named by use of a nutrient content claim (e.g., “low fat”) and a standardized term (e.g., “yogurt”).

More and More People Promote a White House Veggie Garden

Almost a year ago Roger Doiron, founder and director of Kitchen Gardens International, initiated the campaign to convince the new president to create a Victory Garden at the White House. He named the campaign Eat the View. Thousands have joined the movement that hopes to convince the new administration to grow some of its own produce and act as an example to the rest of the country and world. Sign the petition here.

Also, inspired by Michael Pollan's letter in the New York Times to the new Obama administration, another group has been accepting nominations for a White House Farmer. Nominations are now closed, but you can still vote for your favorite local organic vegetable farmer to be the next White House Farmer.

The next White House Farmer, you ask. That's right. Check out this video about the agricultural history of the south lawn of the White House.

Watch this video for a short history lesson.

Peanut Corporation of America Expands Recall and Issues Statement

The Peanut Corporation of America published two press releases yesterday. First an extended recall notice:

Peanut Corporation of America Expands Nationwide Recall of Peanut Products PCA Announces the Voluntary Recall of All Peanuts and Peanut Products Shipped from Georgia Plant

Lynchburg, Va. (January 28, 2009) 􀂱 Peanut Corporation of America (PCA) is voluntarily recalling all peanuts and peanut products processed in its Blakely, Georgia facility since Jan. 1, 2007. Previously, PCA announced a recall of peanut butter and peanut paste. PCA sells its products to institutional and industrial users for service in large institutions or for sale and further processing by other companies. PCA does not sell peanuts or peanut products directly to consumers in stores.
more

And then a statement:

Statement by the Parnell Family and Peanut Corporation of America (PCA)

Lynchburg, VA (January 28, 2009) – “The goal of Peanut Corporation of America over the past 33 years has always been to follow the U.S. Food and Drug Administration’s good manufacturing practices in order to provide a safe product for consumers.

It is because of our commitment to our customers and consumers that PCA has taken extraordinary measures to identify and recall all products that have been identified as presenting a potential risk.

PCA will remain vigilant to the recall process until we know all potentially harmful products have been pulled from store shelves and families have all the necessary information to remove recalled products from their homes. We are also working to identify those additional measures that will make our manufacturing process more effective in meeting federal and state guidelines and producing a safe product.

PCA uses only two highly reputable labs for product testing and they are widely used by the industry and employ good laboratory practices. PCA categorically denies any allegations that the Company sought favorable results from any lab in order to ship its products.
more

$$ SEED MONEY $$

On January 12, 2009 the USDA fined the Olean Seed Co. $1,050.
On January 13, 2009 the USDA fined the Lesco Seed Co. $1,050.
Both companies neither admitted nor denied the charges.

William Mitchell College of Law student Michael Fahy emailed Sam Jones (Samuel.Jones@usda.gov) of the USDA.
He answers some questions:

Q. If you could, could you tell me how you found out?
A. We are informed by complaints submitted from State seed officials.
Q. Are there systematic inspections of shipments, or is it random?
A. Inspections are preformed at the State level, not Federal.
Q. How big was the shipment?
A. This would vary greatly, and I am not sure of the specifics of the shipments in question.
Q. What procedures do you normally employ?
A. Outlined above.
Q. How many seed inspectors does the government have? I am not sure of this number.
A. Each State has their own seed inspectors.
Q. Are there more to these cases?
A. No, they simply violated the FSA and were fined.
Q. Does this happen often with seed companies?
A. This does not occur often; there have only been 5 cases since October of 2008.
Q. Why $1,050?
A. Fines vary depending on violations and companies history.

Link: USDA Fair Trading Regulations

Organic Fertilizer Producer Might Be Full of It, Say Feds

According to an article by Jim Downing of the Sacramento Bee (republished on the Organic Consumers Association website), federal agents recently searched Port Organic Products Ltd. of Bakersfield, “a major producer of fertilizer for California's organic farmers.” The investigation raises concerns about the possible use of synthetic nitrogen-based fertilizers, which are banned by the organic industry primarily because they are not sustainable.

This investigation is significant because Port Organic Products produces over half of the liquid fertilizer used on California’s organic farms. And more importantly, California produces nearly “60 percent of the U.S. harvest of organic fruits, nuts and vegetables.”

The raid illustrates that “work remains to improve a patchwork regulatory system that presumes manufacturers tell the truth about their products.” After the raid, California Certified Organic Farmers (CCOF) ordered its clients to stop using Port’s products. “We are shocked at the lack of integrity of this manufacturer and we are doing our best to restore trust in the organic system,” said Claudia Reid, the group's policy director.

More:

Federal raid heightens concerns about fake organic fertilizer by Jim Downing (on the Sacramento Bee website).

A December 28 story on the same issue, also by Jim Downing of the Sacramento Bee: Organic farms unknowingly used a synthetic fertilizer

CCOF’s 2009 policy banning synthetic liquid fertilizers.

Thank you to William Mitchell College of Law student Mark Johson for preparing this post.

Peanut Corporation of America Knowingly Shipped Contaminated Peanut Products

The U.S. Food and Drug Administration reported Tuesday that the Peanut Corporation of America plant in Blakely, Georgia, shipped out products that managers knew might be tainted with Salmonella.

It appears from the report that the PCA, having received positive results for contamination, then sent the product to another testing facility where the results came back negative. After this negative test result for Salmonella, the product was shipped out.

Read more

Bill Marler at the Marler Blog has just posted a copy of an FDA Inspection Report discussing the Salmonella contamination. The report cites improper storage of the product as well as insanitary practices on the production line as probable reasons for the contamination

Study Shows Presence of Mercury in Some Food Products Containing High-Fructose Corn Syrup

In an article just published by the journal Environmental Health, researchers report having found mercury in 9 of 20 samples of commercial high fructose corn syrup. They point to an outdated processing technique that employs mercury to make high-fructose corn syrup.

Read the abstract or full article.

The Institute for Agriculture and Trade Policy (IATP), following up on this study, has released a study of their own. In this study they claim to have "detected mercury in nearly one in three of the 55 HFCS-containing food products ... tested. They include some of the most recognizable brands on supermarket shelves: Quaker, Hunt‘s, Manwich, Hershey‘s, Smucker‘s, Kraft, Nutri-Grain and Yoplait."

Read the full article from the IATP.

FDA Update Notice and Database on Search for Peanut Butter Product Recalls

FDA News release: "The Food and Drug Administration (FDA) is conducting a very active and dynamic investigation into the source of the Salmonella Typhimurium outbreak.

At this time, the FDA, the Centers for Disease Control and Prevention (CDC), and state partners have traced sources of Salmonella Typhimurium contamination to a plant owned by Peanut Corporation of America (PCA), which manufactures peanut butter and peanut paste—a concentrated product consisting of ground, roasted peanuts—that are both distributed to food manufacturers to be used as an ingredient in many commercially produced products including cakes, cookies, crackers, candies, cereal and ice cream. In addition, PCA peanut butter is distributed to and institutionally served in such settings as long-term care facilities and cafeterias.

FDA has created a searchable list of products and brands associated with the expanded PCA recall, and it will be updated on a regular basis as additional sub recalls occur and information is received by FDA from the industry."

"Natural" Food Outsells "Organic" Food in 2008

Nielsen Media Research, of Nielsen TV rating fame, has released its "Healthy Eating Report for 2008". "Although much is written about organics, products labeled 'natural' generate much higher sales," said a representative of Nielsen Media Research.

Read excerpts from the report.

The word “natural” on labels is regulated by the FDA and USDA and the term “organic” is heavily regulated by the USDA. However, the restrictions on the use of the word “natural” are far less restrictive (in the case of the FDA) or far more vague (in the case of the USDA), than those for "organic".

More on FDA and USDA regulations for "natural" on food labels.

USDA Admits a Lack of Strategy for Monitoring GMO Imports

In a report released by the U.S. Agriculture Department's Office of Inspector General, the Office of Inspector General said it does not have an import control policy to regulate imported GMO animals. The Office of Inspector General recommended the department develop an overall control policy for all GMO imports and implement a strategy to monitor GMO crop and livestock development in foreign nations.

Read the full article

Read the Office of Inspector General's report.

The Animal and Plant Health Inspection Service (APHIS), part of the USDA, currently regulates the importation of GMO's into the U.S. Read more on the current process of importing genetically modified organisms at the APHIS biotechnology website.

Coke Sued over Vitamin Water -- Sugar!!

Center for Science in the Public Interest has sued Coca Cola over its promotion of Vitamin Water as "healthful".  In fact, the drink has 33 grams of sugar per bottle, about the same as a can of pop. From the CSPI News Release:

"Coke fears, probably correctly, that they’ll sell less soda as Americans become increasingly concerned with obesity, diabetes, and other conditions linked to diets too high in sugar," said CSPI litigation director Steve Gardner. "VitaminWater is Coke's attempt to dress up soda in a physician's white coat. Underneath, it’s still sugar water, albeit sugar water that costs about ten bucks a gallon." VitaminWater typically retails for about $1.49 for a 20-ounce bottle.

For more information:

FDA – CFSAN – Structure/Function Claims
http://cspinet.org/new/200901151.html

Text of the Federal Regulation
http://www.cfsan.fda.gov/~lrd/fr000106.html
The regulation deals with labeling in regard to the health benefits of nutrients within food.  This seems to ignore the health benefits of the food product as a whole.  While it may be true that a specific nutrient in a food is beneficial, those benefits may be overshadowed by harmful effects brought about by the food product as a whole.

Read the CSPI complaint against Coke alleging unlawful business practices, fraudulent business practices, misleading and deceptive advertising, untrue advertising, fraud, misrepresentation, which was filed on 1/14/09.
http://cspinet.org/new/pdf/vitaminwater_filed_complaint.pdf

Vilsack confirmed as the new Secretary of Agriculture

The U.S. Senate confirmed former Iowa governor Tom Vilsack as Secretary of A griculture on Tuesday.  Vilsack plans to promote biofuels and to make the school lunches in America’s schools healthier.  He also hopes, along with Obama, to put a hard cap on subsidies for farms making more than $250,000 in a year.  Read the article here:

http://uk.reuters.com/article/usPoliticsNews/idUKTRE50J7ND20090120

Read why some people do not think that Vilsack will bring positive change to the USDA:
http://www.organicconsumers.org/articles/article_15573.cfm

Watch a video of Neil Hamilton, a professor of law and director of the Agricultural Law Center at Drake University, explaining why he supports the Vilsack appointment.  Hamilton focuses on Vilsack’s role in creating Iowa’s Food Policy Council.

http://www.supportvilsack.com/2009/01/07/a-message-of-support-by-professor-neil-hamilton/

Thank you to William Mitchell College of Law student Peter Hemberger for preparing this post.

New York Governor’s ‘Soda Tax’ Debate Bubbling Up

The controversial New York ‘soda tax’ proposed by Governor David Paterson is not easy to digest for some of his constituents.

On December 16, 2008, Mr. Paterson unveiled a proposal to place an 18% tax increase on “fruit drinks that contain less than seventy percent of natural fruit juice and non-dietetic soft drinks, sodas and beverages.”  In a commentary published on cnn.com, the Governor stated the tax increase on beverages with high sugar content was designed in part to reduce childhood obesity, which is linked to type 2 diabetes, high blood pressure and high cholesterol later in life.  The Governor compared the tax as similar to the tobacco taxes paid on a package of cigarettes in order to discourage use.

The American Beverage Association is criticizing Governor Paterson’s proposed tax increase as a tragic tax increase on poor and middle-class families.  The Association is also claiming that the “obesity tax” could threaten the 160,000 jobs in the New York bottling and distribution industry.  Foes of the proposal say that the governor should focus on education to combat poor diet instead of imposing higher taxes.

Read more:

Soda Tax Foes Speaking Up ,from the Albany Democrat and Chronicle

Governor David Paterson’s commentary published on CNN.com: (http://www.cnn.com/2008/HEALTH/12/18/paterson.obesity/)

Special thanks to William Mitchell College of Law student David Gibson for preparing this post.

Study: Zip Code causes obesity

Not really, but a study in Seattle did find that zip codes of low income neighborhoods are associated with higher rates of obesity.  In other words, lower incomes are associated with obesity.  Obviously, this doesn't mean that your zip code causes obesity (but other cause-effect claims based only on associations are all over the place.)

Anyway, here's the reference to the study:

"In Seattle we have found that there are fivefold differences in obesity rates depending on the zip code -- the low-income zip codes have a much higher proportion of obese people," he said.

He said that studies conducted in California showed that a 10 per cent rise in poverty translated into a six per cent increase in obesity among adults.

Excerpt is from Spending Less Can Make You Fat, on the Times of India website.

Peanut Butter and Salmonella

Salmonella poisoning cases are being linked to peanut butter right here in Minnesota.  I had peanut butter on my toast this very morning.  (Not this kind, but still.)

FDA recall notice: http://www.fda.gov/oc/po/firmrecalls/kingnut01_09.html Excerpt:

FOR IMMEDIATE RELEASE --Solon, Ohio (January 10, 2009) - King Nut Companies, a distributor of peanut butter manufactured for them by Peanut Corporation of America, today announced a recall of peanut butter distributed under the King Nut label. No other King Nut products are included in this recall.

King Nut took this action as soon as it was informed that salmonella had been found in an open five-pound tub of King Nut peanut butter. King Nut distributes peanut butter only through food service accounts. It is not sold directly to consumers. King Nut does not supply any of the ingredients for the peanut butter distributed under its label. All other King Nut products are safe and not included in this voluntary recall.

More about how bad this might be: MarlerBlog (30 illnesses and a death)

Color additive ruling: cochineal extract and carmine must be labeled

Thanks to Ricardo Carvajal of FDA Law Blog for this one:

FDA has issued a final rule that requires declaration of the color additives cochineal extract and carmine in the ingredient statement on the label of all food and cosmetic products that contain those additives.  FDA has made no changes to the proposed rule that it published in January 2006.  The final rule is effective on January 5, 2011, but FDA states that it “will not object to voluntary compliance immediately upon publication of the final rule.”

So I had to know -- what is cochineal extract?  Not surprisingly it comes from something called a cochineal, which is an insect.  From Wikipedia:

This type of insect, a primarily sessile parasite, lives on cacti from the genus Opuntia, feeding on moisture and nutrients in the cacti. The insect produces carminic acid which deters predation by other insects. Carminic acid can be extracted from the insect's body and eggs to make the dye. Cochineal is primarily used as a food colouring and for cosmetics.

More: cochineal is used as a biological agent to control prickly pear cactus in Australia.  See North West Weeds for more information.