Food & Drug Law Prof Blog

FDA Seeking Comments on Calorie and Nutrition Labeling

From the FDA CFSAN website:

April 29, 2010

The U.S. Food and Drug Administration (FDA) has issued a request, in the Federal Register, for data and other information the agency can use as it considers ways to make nutrition information more useful to consumers; for example, on "front-of-pack" labeling (the main display panel on products) and shelf tags in retail stores. The deadline for submitting comments is July 28, 2010.

FDA is particularly interested in receiving data and information on:

• • the extent to which consumers notice, use, and understand nutrition symbols on front-of-pack labeling or shelf tags;
  • results of research that assessed and compared the effectiveness of potential approaches to front-of-pack labeling;
  • graphic design, marketing, and advertising that can contribute to development of nutrition information that is more useful to consumers;
  • the extent to which nutrition labeling affects food manufacturers’ decisions about the contents of their products.

The goal of this request is to make calorie and nutrition information available to consumers in ways that will help them choose foods for more healthful diets – an effort that has taken on special importance, given the prevalence of obesity and diet-related diseases in the U.S. and of increasingly busy lifestyles that demand quick, nutritious food.

FDA: Industry Guidance on Egg Safety

From the Center for Food Safety and Applied Nutrition (CFSAN):

On April 13, 2010, the Food and Drug Administration (FDA) published guidance for small egg producers to help them comply with a new federal egg safety regulation. The guidance, entitled “Guidance for Industry: Prevention of Salmonella Enteritidis in Shell Eggs During Production, Transportation, and Storage: Small Entity Compliance Guide (SECG),” can be accessed at Guidance for Industry: Prevention of Salmonella Enteritidis in Shell Eggs During Production, Transportation, and Storage; Small Entity Compliance Guide¹ and is intended to set forth in plain language the requirements of the new egg safety rule to help small businesses comply with the regulation.

The FDA published the egg safety regulation in July 2009. The new law requires egg producers to have preventive measures in place during the production of shell eggs in poultry houses and requires subsequent refrigeration during storage and transportation. . . .

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Supreme Court to hear arguments in GE Crop case Monsanto v. Geertson Seed Farms Tomorrow

The U.S. Supreme Court will hear arguments in Monsanto v. Geertson Seed Farms tomorrow. This is the Roundup Ready Alfalfa case, in which plaintiffs challenged USDA's (APHIS's) deregulation of genetically engineered alfalfa under the NEPA.

The issues on which cert was granted don't have much to do with genetically engineered crops, per se, but the this is all exciting anyway. 

All of the briefs are available on the SCOTUS Wiki website, which presents the issues as follows:

Issues: (1) Whether plaintiffs under the National Environmental Policy Act are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction; (2) whether a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction; and (3) whether the Ninth Circuit erred when it affirmed a nationwide injunction that sought to remedy a NEPA violation based on only a remote possibility of reparable harm.

FDA Pressured to Combat Rising ‘Food Fraud’

Representatives of the US food industry are saying that the FDA isn’t doing enough to stop the rise of fraudulently mislabeled food. From a March 30, 2010, Washington Post article:

John Spink, an expert on food and packaging fraud at Michigan State University, estimates that 5 to 7 percent of the U.S. food supply is affected but acknowledges the number could be greater. . . .

At the FDA's first public meeting on food fraud last year, groups across the industry complained that it is not doing enough. . . .

Despite growing imports, the FDA inspects just 2 percent of fish coming into the United States from other countries.

The National Seafood Inspection Service, part of the Marine Fisheries Service, routinely examines seafood products for species substitution. It issued a report finding that over a nine year period, between 1988 and 1997, the samples they took showed that an overall 34% of all seafood products tested was mislabeled.

Worse yet, researchers at the University of North Carolina at Chapel Hill conducted a study on fish sold as red snapper. They concluded that between 60% and 94% of the fish sold as red snapper in the US are mislabeled.

Thank you to William Mitchell College of Law student Hiep Phung for preparing this post.

Study shows fatty foods may cause drug-like addiction -- similar brain responses to cupcakes and cocaine

According to a study published March 28, 2010, online in Nature Neuroscience journal, researchers have found that fatty foods may be addictive. When rats are exposed to high-fat junk foods their brains react similarly to when they are exposed to cocaine. This research, which confirms previous studies, is further evidence that the same addictive reaction between the brain and junk food may occur in humans.

The researchers divided similar rats into three groups.  Each group had unlimited access to regular rat chow, and in addition each group received either: 1) nothing else -- just regular rat chow, 2) some fattening human foods for one hour a day (plus unlimited rat chow), or 3) access to fattening human foods for 18-23 hours per day (plus unlimited rat chow). The study measured calories eaten, weight gain, and brain reward center response.  Rats with access to the high-fat palatable foods showed reduced brain responses, as well as increased calorie consumption and weight gain.

From a CNN Health Article describing the study:

Doing drugs such as cocaine and eating too much junk food both gradually overload the so-called pleasure centers in the brain, according to Paul J. Kenny, Ph.D., an associate professor of molecular therapeutics at the Scripps Research Institute, in Jupiter, Florida. Eventually the pleasure centers "crash," and achieving the same pleasure--or even just feeling normal--requires increasing amounts of the drug or food, says Kenny, the lead author of the study.

Thank you to William Mitchell College of Law students Scott Allen and Lauren Sparks for preparing this post.

Minneapolis City Council Will Allow Street Vendors

Last week, the City of Minneapolis City Council unanimously approved an ordinance that will allow for a limited number of street food vendors, in a limited area of downtown Minneapolis. The amended ordinance contains a number of restrictions that would be placed on street food vendors.

At a hearing in March, according to the Twin Cites Daily Planet, there was discussion about who could become a street vendor:

. . . Some discussion at the meeting involved whether a business owner had to already own a restaurant or bar to become a street vendor. The currently proposed wording says that while a business owner could have any type of food service license, they would need to do all preparing and storing of food in a commercially licensed kitchen. That stipulation would cut out smaller businesses that don't have an established brick and mortar business.

The ordinance as originally proposed would only have allowed food and beverages to be stored and prepared in a commercially licensed kitchen, but this restriction was not part of the final ordinance.

According to the Minneapolis Downtown Journal,

Under the new rules, anybody with a licensed kitchen or a license to use a commons kitchen can apply for a street-vending permit. Vendors will be assigned spots Downtown and be able to sell any kind of food.

The amended version of the ordinance that was forwarded to the City Council is available here.  This is not, however, the final version as reflected by a City Council press release dated 4/2/10.

Thank you to William Mitchell College of Law student Nicolas Allyn for preparing the original version of this post!  (Professor Byrne edited the final version because by the time she got around to posting it,the news had changed.) 

New Health Care Legislation Affects Restaurants' Nutritional Information Requirements

The recently passed health care legislation includes a new requirement regarding nutritional information for fast food items. The new requirements come as a victory for people who have been advocating more accountability for restaurants who serve fast food. According to an ABC News article:

. . . The new requirement is buried deep inside the health care reform that President Obama just signed into law. . .It requires all dining chains with 20 outlets or more to put calorie counts on their menus.

These developments have been championed by many, including Iowa Senator Tom Harkin who voted for the bill and is quoted in the article:

 . . . As more and more consumer become aware of choices, they will start making the healthy choice. . .more and more people are going to start eating salads at McDonalds than ever before.

Critics say that although restaurants with less than 20 outlets are exempt from the rule, it is a scary sign that the federal government is moving closer and closer to policing small restaurant operations. According to Didier Durand, chef and head of an organization of independent restaurants aimed at keeping ‘police out of the kitchen’:

 . . . Members [of Durand’s organization] are fed up with encroaching government regulation. . . “They want to police our kitchen, I want the police on the streets, Durand said. “In my kitchen, I put a pinch of that, a little of this, just never the same, so I think that will never be accurate.”

Although these concerns are substantial and illustrate a fear of too much government interference in restaurant operations, studies have shown that nutrition requirements on restaurant food can lead to consumers choosing healthier items. According to a Stanford University Study :

 . . . We find that mandatory calorie posting does influence consumer behavior at Starbucks, causing average calories per transaction to decrease by 6% (from 247 to 232 calories per transaction). Almost all of the effect is related to food purchase as opposed to beverage purchase. . . There is evidence that calorie posting may have caused some consumers to substitute away from Dunkin Donuts (a large competitor) towards Starbucks.

Under the newly enacted legislation, there are specific requirements that must be followed by the restaurant with the hope bringing more knowledge to consumers:

 . . . The restaurant or similar retail food establishment shall disclose. . .a nutrient content statement. . .the number of calories as usually prepared. . .and a succinct statement concerning suggested daily caloric intake. H.R.3962 "Affordable Health Care for American Act, page 1511.

Thank you to William Mitchell College of Law student Nathan Midolo for preparing this post.

Is Wal-Mart the answer for cheaper organics and more locally grown foods?

Some Americans are reluctant to shop at Wal-Mart for several reasons, including its perceived anti-union stance, lax environmental standards, poor working conditions, and danger to mom-and-pop stores. But many more Americans flock to Wal-Mart, mainly because of its low prices. These low prices help make Wal-Mart the third largest world corporation in terms of revenue.

Corby Kummer, of the Atlantic Magazine, was also a hesitant Wal-Mart shopper. But after hearing news that the retail giant had been making significant steps into the organic market, he began comparing Wal-Mart produce to Whole Foods fruits and vegetables, a popular natural and organic food retailer. The results were mixed:

 [Wal-Mart] beets handily beat (sorry) ones I’d just bought at Whole Foods, and compared nicely with beets I’d recently bought at the farmers’ market. But packaged carrots and celery, both organic, were flavorless. Organic bananas and “tree ripened” California peaches, already out of season, were better than the ones in most supermarkets, and most of the Wal-Mart food was cheaper—though when I went to my usual Whole Foods to compare prices for local produce, they were surprisingly similar (dry goods and dairy products were considerably less expensive at Wal-Mart).

And with respect to locally grown foods, Wal-Mart claims that, through its Heritage Agriculture program, the retailer encourages “farms within a day’s drive of one of its warehouses to grow crops that now take days to arrive in trucks from states like Florida and California.”

Thank you to William Mitchell College of Law student Chris Zielinski for preparing this post.

Water Bottles

On my own radar lately is what kind of water bottle to take to they gym, or to class, or in the car. 

A May 2008 Consumer Reports article warned against bottles that contain Bisphenol-A (or BPA).  A few months later, the FDA released its finding that BPA is safe.  But in 2009, an international group of scientists rejected the FDA's conclusions, and also questioned the EU's position on BPA safety. From a JSOnline article:

"It is becoming undeniable that BPA is dangerous," said Laura Vandenberg, a developmental biologist at Tufts University, one of 58 scientists from around the world invited to the conference in Germany. "The FDA's standard for safety is reasonable certainty. It is no longer reasonable to say that BPA is safe."

So this past January, the FDA changed its mind, at least a little, after a September 2008 National Toxicology Program report expressed "some concern" about BPA:

The NTP has some concern for effects on the brain, behavior, and prostate gland in fetuses, infants, and children at current human exposures to bisphenol A.

The NTP has minimal concern for effects on the mammary gland and an earlier age for puberty for females in fetuses, infants, and children at current human exposures to bisphenol A.

The NTP has negligible concern that exposure of pregnant women to bisphenol A will result in fetal or neonatal mortality, birth defects, or reduced birth weight and growth in their offspring.

The NTP has negligible concern that exposure to bisphenol A will cause reproductive effects in non-occupationally exposed adults and minimal concern for workers exposed to higher levels in occupational settings.

So . . . what water bottles do I use? 

Polycarbonate? Polycarbonate has been shown to leach BPA, so now there are clear plastic bottles that are BPA-Free.  According to an article on water bottles on the Natural Resource Defense Council website, however, only the manufacturers know what the replacement plastic is.  Stainless steel?  I'm going with that for now.  But I'm finding that the stainless steel bottles so far don't fit in my car cup carriers -- too wide for the coffee cup holder, and not quite wide enough for the other ones.  Time to get out the bicycle.  -- Donna Byrne

Government Report Finds Tainted Meat

The USDA Office of Inspector General has released a study of meat contamination with veterinary drugs, pesticides, and heavy metals.  The news is not good.  The study is an Audit Report of the FSIS National Residue Program for Cattle.  From the Executive Summary:

Based on our review, we found that the national residue program is not accomplishing its mission of monitoring the food supply for harmful residues. Together, FSIS, FDA, and EPA have not established thresholds for many dangerous substances (e.g., copper or dioxin3), which has resulted in meat with these substances being distributed in commerce. Additionally, FSIS does not attempt to recall meat, even when its tests have confirmed the excessive presence of veterinary drugs.

Read the full report here.

Read about the report at Food Safety News: Audit Finds Tainted Meat Making Reaching Consumers

Fat-Free = Fewer Nutrients: A Salad Study

Sometimes news takes a while to trickle through. 

A headline in the April 2010 issue of Cooking Light Magazine reads “Choose Fat-Free Dressing, and You’ll Miss Out on Many Nutrients.” Results from a 2004 Iowa State University study conducted by Associate Professor of Food Science and Nutrition Dr. Wendy S. White found that eating salads with fat-free or reduced-fat salad dressings is not as good for you as you may think.

The study brought to light that eating vegetables accompanied with little or no fat inhibits the absorption in the human body of cancer-fighting nutrients inherent in vegetables. The study acknowledges that eating a diet with moderate levels of fat is already recommended by U.S. dietary guidelines, but the study’s significance is its discovery that eating fat alongside vegetables, such as the fat found in salad dressings or other fats contained in salads improves the absorption of vegetables’ vitamins and minerals. Specifically, of those who ate salads with fat-free, low-fat, or full-fat (regular) salad dressings, the individuals who consumed salads with a higher fat content had a greater absorption of lycopene, alpha-carotene, and beta-carotene in its participants.

From the  Iowa State Press Release, 7-22-2004:

"We're certainly not advocating a high-fat diet, or one filled with full-fat salad dressing," White explained. "If you'd like to stick with fat-free dressing, the addition of small amounts of avocado or cheese in a salad may help along the absorption.

"Our findings are actually consistent with U.S. dietary guidelines, which support a diet moderate, rather than very low, in fat," White continued. "But what we found compelling was that some of our more popular healthful snacks, like baby carrots, really need to be eaten with a source of fat for us to absorb the beta carotene."

The study was published in the August 2004 issue of the American Journal of Clinical Nutrition. Here is the  abstract, and here is the link to the full text study.

Thank you to William Mitchell College of Law student Natalie Smith for preparing this post.

Students Stand Up for Healthier Food at School

The battle against school lunch has a new and powerful voice: students.

According to the Chicago Tribune, at a March 24 meeting of the Chicago Board of Education, Chicago Public Schools (CPS) students came before the board to complain about the food served at their schools. Describing the “sickening pizza”, “hard bread” and “tan-colored slop”, the students made a compelling case for new food options at their schools, asserting that their health was at risk.

One student described the plight of lower-income students who rely on school lunch to provide the nutrition they need each day, but instead are served high-fat, low-quality meals. Available fruits and vegetables were described as sub-par, such as brown lettuce and moldy fruit. CPS student Asia Snyder was reportedly direct: “You feed us fat, greasy, disgusting meals . . ..It’s what’s making us fat.”

Bob Bloomer, regional vice president of Chartwells-Thompson (the provider of food for 478 CPS schools), declared that students are the problem, stating that food offerings like whole-grain nachos and pizza with low-fat meat are the best they can do, because “we try to make what they like healthy and low-fat”.

However, CPS CEO Rob Huberman vowed that there would be change, stating that the coming weeks would see a “big restructuring of the food services process.” Additionally, a CPS spokeswoman said that schools would see more healthy options added, and it has been reported that CPS is already phasing out items such as nachos, doughnuts and pop-tarts. In fact, last week the Chicago Public Schools announced new nutritional standards for school meals.

Read more:

Chicago Tribune, Students lament state of school meals, 3-24-10
Chicago Sun-Times, No raves for CPS lunches, 3-25-10
Chicago Public Schools press release, 4-7-10

Thank you to William Mitchell College of Law student Erin Rohne for preparing this post.

Opposition to GE Alfalfa

Last month (March 3, 2010) the Center for Food Safety posted a National Organic Coalition (NOC)  press release estimating that more than 200,000 comments were submitted to the USDA critiquing the APHIS Draft Environmental Impact Statement concerning GM alfalfa (available here). 

Also included in the Center for Food Safety Post is a letter submitted by 300 public interest groups, farmers, dairies, retailers and organic food producers who worry that GM alfalfa threatens their livelihood.

For example:
“GE alfalfa threatens the very fabric of the organic industry,” adds George Siemon, one of the founding farmers and CEO of Organic Valley. “Organic consumers want seeds and products to remain unpolluted by GE.”

Thank you to William Mitchell College of Law student James McEnerney for preparing this post.

Junk Food Product Placement in Movies

According to a recent study published in the journal Pediatrics, the product placement of food in movies from 1996-2005 mostly consists of nutrient deficient foods.

The study concludes that "more than two thirds of popular movies featured food, beverage, and/or FRE [Food Retail Establishments] brand placements. The overwhelming majority of the brand placements were for energy-dense, nutrient-poor products."

Because movies are often viewed by children and adolescents, the study suggests that "these findings provide a benchmark against which future research can evaluate the commitments by food companies to change the nature of food advertising directed at America's children as promised by the Children's Food and Beverage Advertising Initiative pledge."

In a recent interview with Reuters Health, Dr. Lisa A. Sutherland, the lead researcher for this study, said that "she and her colleagues are now looking at whether there have been any changes in movies released since 2005."

..."will we see there has been a decline in product placements, or will we see that movie studios are still including placements without (being paid)?... For parents, she said, the message is that junk-food advertising 'goes beyond TV'...'you should be aware that popping in a bunch of movies may not be any better than letting your kids watch TV.' "

Thank you to William Mitchell College of Law student Candice Duncan for preparing this post.

New York Times E coli poisoning story wins Pulitzer

The 2010 Pulitzer Prizes were just announced, and the prize for explanatory reporting goes to a food poisoning story. The Explanatory Reporting award is presented "for a distinguished example of explanatory reporting that illuminates a significant and complex subject, demonstrating mastery of the subject, lucid writing and clear presentation, in print or online or both."

Awarded to Michael Moss and members of The New York Times Staff for relentless reporting on contaminated hamburger and other food safety issues that, in print and online, spotlighted defects in federal regulation and led to improved practices. (Moved by the Board from the Investigative Reporting category.)

The winning article, The Burger that Shattered Her Life, dug into the background of the hamburger that poisoned 22-year-old Minnesota dance instructor Stephanie Smith, and moved to an examination of food safety regulation in general. 

Hat tip: Bill Marler, who represents Stephanie Smith.