Food Law Prof Blog

Open CRS Report: Safe Drinking Water Act: A Summary of the Act and Its Major Requirements

Safe Drinking Water Act: A Summary of the Act and Its Major Requirements

Abstract:

This report summarizes the Safe Drinking Water Act (SDWA) and its major programs and regulatory requirements. It excerpts, with several additions, the SDWA chapter of CRS Report RL30798, Environmental Laws: Sumaries of Major Statues Administered by the Environmental Protection Agency (EPA), which provides summaries of the principal environmental statutes administered by the Environmental Protection Agency (EPA). This report includes the drinking water security provisions added to the SDWA by the Public Heath Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188). The Safe Drinking Water Act, Title XIV of the Public Health Service Act, is the key federal law for protecting public water supplies from harmful contaminants. First enacted in 1974 and substantially amended in 1986 and 1996, the act is administered through programs that establish standards and treatment requirements for public water supplies, control underground injection of wastes, finance infrastructure projects, and protect sources of drinking water. The 1974 law established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program. The state-administered Public Water Supply Supervision Program remains the basic program for regulating the nation's public water systems, and 49 states have assumed this authority. The last major reauthorization of the act was done through the Safe Drinking Water Act Amendments of 1996 (P.L. 104-182), which generally authorized appropriations for SDWA programs through FY2003. As with other EPAadministered statutes having expired funding authority, Congress has continued to appropriate funds for the ongoing SDWA programs. In addition to reviewing key programs and requirements of the SDWA, this report includes statistics on the number and types of regulated public water systems. It also provides tables that list all major amendments, with the year of enactment and public law number, and that cross-reference sections of the act with the major U.S. Code sections of the codified statute.

Sam's Club and Costco rationing bulk rice

From CNN.com:

(AP) -- The two biggest U.S. warehouse retail chains are limiting how much rice customers can buy because of what Sam's Club, a division of Wal-Mart Stores Inc., called on Wednesday "recent supply and demand trends."

The broader chain of Wal-Mart stores has no plans to limit food purchases, however.

The move comes as U.S. rice futures hit a record high amid global food inflation, although one rice expert said the warehouse chains may be reacting less to any shortages than to stockpiling by restaurants and small stores.

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(Hat tip Bret Birdsong, UN Las Vegas)

Article: Litigating the Economic Effects of Biotech Crops

Thomas P. Redick (Global Environmental Ethics Counsel) and A. Bryan Endres (U. Illinois -- Agriculture) have published Litigating the Economic Effects of Biotech Crops, 22 SPG-Nat. Res. & Env't 24 (2008).  The article begins:

The past year has seen groundbreaking litigation in agricultural biotechnology that could make future U.S. federal regulatory approval for biotech crops more difficult to secure and leave clouds of potential liability for those crops that pass the federal approval hurdle. The hottest news in biotech crop regulation and liability is the pending litigation regarding the economic impacts of novel crop varieties approved for use in the United States. This looming threat of economic impact liability raises potential regulatory and commercial barriers to entry. If the final resolution of these cases requires consideration of potential economic impacts in addition to the existing health and environmental reviews conducted prior to regulatory approval, the bar will be raised not just for commercial marketing of biotech crops, but possibly for similar technologies (e.g., nanotechnology and chemicals) that enter the global marketplace and can cause analogous impacts (e.g., food recalls or environmental remediation).

This is primarily a tale of two pending cases--one federal case on appeal in California and another just getting started in St. Louis, Missouri--and the implications of this litigation. Biotech crop litigation also demonstrates how traditional common law tort theories of liability can be commingled with claims based on environmental law and regulation.

Bratspies on The American Approach to Regulating GMOs

Professor Rebecca Bratspies, (CUNY School of Law) has posted Some Thoughts on the American Approach to Regulating Genetically Modified Organisms, Kansas Journal of Law & Pubic Policy, Vol. 16, No. 3, 2007,  on SSRN at http://ssrn.com/abstract=1017832

Abstract: A healthy society needs room for genuine dialogue, particularly over issues of how to evaluate and weigh risks to public safety. When citizens do not have confidence in the regulatory systems that purport to protect them, social trust breaks down. The lack of a transparent, well-organized regulatory system threatens public trust in biotechnology and more fundamentally in government itself. The success of agricultural biotechnology depends on society's willingness to accept and consume food produced via this technology. This willingness hinges on the level of trust that the technology is being developed and used in a safe manner. (abstract continues)

This needed trust is multilayered - the consumer must trust that the scientists know what they are doing in developing these crops, that the companies marketing and distributing the crops are operating in a legal and ethical manner, that the regulators are exercising proper oversight, that the farmers are obeying the regulations, and that the consumer is not being lied to or misled. The presence or absence of trust dramatically affects communications about and perceptions of risk. As a result, a credible oversight scheme and trust in the institutions promoting and overseeing agricultural biotechnology may be the single biggest predictors of public acceptance of this technology

Because the development, production and marketing of GM crops requires the activities of so many different parties, there are multiple levels on which this process can break down, creating suspicion and mistrust. This article explores fundamental questions about the relationship between transparency, trust and acceptability of risk and makes some recommendations about the role that public voices should play in regulatory policy.

Video -- Jim Chen on Beyond Food and Evil

Jim Chen has posted a RealPlayer video of his Duke Law Journal Administrative Law symposium presentation of Beyond Food and Evil (blogged here) on the Agricultural Law Blog.  The presentation was delivered via videoconference after Jim's flight was cancelled.  I don't actually know whether that's the only reason the digital version exists, but if so, what a lucky break for the rest of us!  Click here to go to the Agricultural Law post and view the video.

Jim Chen posts Beyond Food and Evil

Jim Chen (Louisville) has posted Beyond Food and Evil, Duke Law Journal, Vol. 56, No. 1581, 2007  , on SSRN. Here is the abstract:

The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine.

Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.

Jim Chen on trade policy considerations

Jim Chen (Prolific blogger, and Dean, University of Louisville - Louis D. Brandeis School of Law ) spoke at Arkansas on his article, Around the World in Eighty Centiliters, Minnesota Legal Studies Research Paper No. 05-28 ;Minnesota Journal of International Law, Vol. 15, p. 11, 2006 . (Posted on SSRN here).  Here is the abstract:

The production, marketing, and delivery of beverages are enterprises so vast that fully to comprehend [them] would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government. Queensboro Farm Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). So extensive are the legal complexities at issue that the typical North American coffee service traverses nearly the entire range of allocative and redistributive considerations within the law of trade. A simple carafe of coffee, with cream and sugar on the side, vividly illustrates the tradeoff between comparative advantage and redistributive goals in the formation of trade policies.

And here is a link to Susan Schneider's (Arkansas Agricultural Law LLM Director) Agricultural Law Blog post on Chen's work and sugar policy in general:  How Sweet it is.

Ariana Levinson on Lawyers as Problem Solvers One Meal at a Time

Ariana R. Levinson (University of Louisville, Brandeis School of Law ) has posted Lawyers as Problem Solvers One Meal at a Time: a Review of Barbara Kingsolver's Animal, Mineral, Vegetable on SSRN.  Here is the abstract:

Barbara Kingsolver's Animal, Vegetable, Miracle: A Year of Food Life is a must-read for lawyers and legal scholars in the areas of food law, environmental law, agricultural law, and education law. Indeed, I recommend it to anyone interested in the future of the planet or our children. The over-arching point of Kingsolver's book is that Americans should eat more locally-grown food. Kingsolver's position is that eating locally-grown food promises to be part of the solution to several of the major problems facing us at the start of the 21st century, such as global warming and childhood obesity. Many of the issues that Kingsolver addresses are legal ones, and many of the implications of her arguments also bear on legal topics. This review discusses the legal issues raised by the book and provides annotation to relevant legal articles, including articles on increasing opportunities for food production in local economies; global warming; childhood obesity; the Federal Farm Bill; the Plant Variety Protection Act of 1970; pesticide pollution and loss of wildlife habitat; lawsuits involving patented plant varieties; laws and regulations related to genetically modified foods; labeling laws governing Recombinant Bovine Somatotropin Hormone; proposals to reduce the public health risks of mad cow disease in the United States; green zoning; local ordinances governing community gardening; elimination of the regulatory quota system for tobacco; and the National Animal Identification System.

CRS Report on Mortality of Americans Age 65 and Older

Open CRS has posted a Report on Mortality of Americans Age 65 and Older. Excerpt from the Summary:

In 2004, a total of 1.8 million deaths of people age 65 and older was reported in the United States; one-third lost their life to a heart condition, one-fifth to cancer. Nevertheless, the number of deaths attributable to cardiovascular disease has fallen by nearly one-third since 1980. Moreover, the death rate for heart disease in 2004 was 41.6% lower than in 1980. Similarly, the death rate for stroke declined by 48.2% during the last quarter century. These declines are attributable to a number of factors, including medical advances that facilitate the diagnosis and treatment of these conditions, the introduction of new pharmaceuticals, and important changes in lifestyle behaviors, including less cigarette smoking and changes in diet. This significant decrease, however, has been partially offset by an increase in cases of some chronic conditions among older Americans. In particular, since 1980, the share of elderly deaths resulting from kidney disease, diabetes, Alzheimer's disease, atherosclerosis, and chronic liver disease more than quadrupled (from 5.0% to 20.1%), and death rates for chronic lower respiratory diseases increased by 120%. Increases in mortality attributable to chronic illness have not been evenly distributed. Even among the elderly, death rates vary by age. Moreover, significant racial and ethnic disparities are evident, reflecting different disease profiles for underlying populations, unequal access to health care, and other sociodemographic factors, such as income and education. Diabetes has been particularly deadly among blacks and Native Americans, heart disease has disproportionately affected white men, and Alzheimer's has been especially detrimental to white women. As the population of older Americans grows and the cost of medical care increases, the public policy interest in identifying the predominant causes of death among the elderly becomes more acute. Given the concentration of medical expenditures at the end of life, and the fact that Medicare covers more than 95% of all Americans age 65 and older, understanding trends in mortality may inform policy makers as they tackle the many challenges associated with financing and delivering care to the nation's rapidly growing cohort of older Americans.

Food Fussiness may be inherited

This explains a lot. AP article by Maria Cheng

LONDON -- Having trouble persuading your child to eat broccoli or spinach? You may have only yourself to blame.

According to a study of twins, neophobia -- or the fear of new foods -- is mostly in the genes.

"Children could actually blame their mothers for this," said Jane Wardle, director of the Health Behavior Unit at University College London, one of the authors of the study in this month's American Journal of Clinical Nutrition

Wardle and colleagues asked the parents of 5,390 pairs of identical and non-identical twins to complete a questionnaire on their children's' willingness to try new foods.

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NOSB Organic Aquaculture Symposium papers online

Papers to be presented at the US National Organic Standards Board 'Organic Aquaculture Symposium' in Washington, DC, November 27 are now available on the Symposium website.

FISH FEED AND FISH MEAL PANELISTS

Md. Shah Alam, University of North Carolina, Center for Marine Research Replacement of Menhaden Fishmeal by Soybean Meal for the Diet of Juvenile Black Sea Bass (PDF)

Torbjorn Asgard, Akvaforsk, NorwayFlexibility in the Use of Feed Ingredients can turn the farmed salmon industry sustainable (PDF)

Craig Browdy, Marine Resources Institute, South Carolina Dept of Natural ResourcesAlternative Approaches for Removing Fish Meal and Oils from Farmed Shrimp using Plant and Poultry Meals and Marine Algal Products (PDF)

Steven Craig, VA/MD Regional College of Veterinary Medicine, VA Tech, Total Replacement of Fishmeal and Fish oil in Diets for Nile Tilapia and the Marine Obligate Carnivore, Cobia

Brad Hicks, Chair, Pacific Organic Seafood Association, BC, CanadaFeeding Fish, Fish Meal and Fish Oil Fulfill Organic Tenets (PDF)

Jonathan Shepherd, International Fishmeal and Fish Oil OrganizationSustainable Marine Resources for Organic Aquafeeds (PDF)

OPEN CAGE NET PENS PANELISTS

Sandra Bravo, Aquaculture Institute, Universidad Austral de ChileUse of Antifouling in the Chilean Salmon Industry (PDF)

Kenneth Brooks, Aquatic Environmental Sciences, WashingtonA Comparison of the Environmental Costs Associated with Open Net Pen Culture of Atlantic Salmon and Production of some other human foods (PDF)

Andrea Kavanagh, Director, Pure Salmon CampaignA review of research on the caused and quantities of farmed fish escapes from open net cage systems and a literature review of the impact of escapes on wild fish populations, using farmed salmon as a case study (PDF)

Martin Krkosek, Centre for Mathematical Biology, University of Alberta, CanadaDisease Threats of Salmon Aquaculture to Wild Fish (PDF)

George Leonard, Monterey Bay Aquarium, Center for the Future of OceansPerformance Goals for Net Pen Production of Organic Finfish (PDF)

Neil Sims, Kona BlueApplicability of Organic Principles to Marine Finfish Aquaculture: Comparing Open Ocean Net Pens to Closed-Containment Systems for Production of Kona Kampachi

POSTER SESSION PARTICIPANTS

All oral presentation panelists will be participating in the poster session.  Everyone who had submitted abstracts but who were not selected for oral presentation, were very much encouraged to submit full papers and participate in the poster session. In addition, some of the individuals who were selected for oral presentation had submitted additional abstracts and may also be presenting information on those other topics.

Linda J. O’Dierno, New Jersey Department of Agriculture The Value of USDA Organic Labeling to the United States Consumer (PDF)

Stan Proboszcz, Watershed Watch Salmon Society, Coquitlam, British Columbia, CanadaEstimated Sea Louse Egg Production from Marine Harvest Canada (Stolt) Farmed Salmon, Broughton Archipelago, British Columbia, Canada, 2003-2004: Implications for Proposed Organic Standards (PDF)

Urvashi Rangan, Consumers Union, non-profit publisher of Consumer Reports Consumer Expectations of Organic Fish (PDF)

Roberts on Role of Regulation in Minimizing

Michael T. Roberts (Venable LLP, adjunct Arkansas) has published The Role of Regulation in Minimizing Terrorist Threats Against the Food Supply: Information, Incentives, and Penalties, 8(1) Minn. J. L. Sci. & Tech. 199-223 (2007), and the article is posted on the Agricultural Law Center website (link). Here is the first paragraph:

Ringing alarm bells as he announced his resignation as Secretary of the Department of Health and Human Services, Tommy Thompson posited: “I, for the life of me, cannot understand why the terrorists have not . . . attacked our food supply because it is so easy to do.”

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The seeming ease of a terrorist attack on the United States food supply evokes the obvious question of what steps should be taken to minimize the threat. Determining what steps should be taken and implementing those steps naturally turns our attention to the government’s important role in protecting the safety of the nation’s food supply from terrorist attacks.

Call for Submissions -- Journal of Food Law and Policy

The JOURNAL OF FOOD LAW & POLICY at the University Of Arkansas School Of Law is seeking submissions for its Spring 2008 issue.  The Journal publishes articles which address a wide range of cutting edge legal topics including food safety, food security and food insecurity, nutrition, obesity, international trade, farm policy, labeling, and traceability.  The Journal of Food Law & Policy is the only student-edited journal in the country focusing specifically on the area of food law.
In addition to the traditional scholarly articles that we publish, the Journal is also interested in including a limited number of shorter, more focused articles and book reviews.  Submissions to the Journal may be sent electronically via email or through ExpressO or mailed to the Journal at the address below.  The deadline for Spring 2008 submissions is February 1, 2008.  Please feel free to contact Jennifer Fiser, Editor-in-Chief, with questions.

Journal of Food Law & Policy
Law Programs Center
1 University of Arkansas
University of Arkansas School of Law
Fayetteville, AR  72701

Phone:  479-575-2754
Fax:  479-575-3540
foodlaw@uark.edu

FDA Preemption and the Lipstick Problem

Professor Henry Greenspan (Psychologist, U Mich) has posted an article on the TortDeform Blog focusing on efforts to make FDA standards preemptive.

Last week, the U.S. Senate passed the "FDA Revitalization Act" (hereinafter, FDARA) by an overwhelming majority (only Bernie Sanders of Vermont voted 'nay'). That ought to tell us something. Clearly, the pharmaceutical industry and both major parties found something they could all agree upon: the usefulness of lipstick.

In order to understand this victory for cosmetology, a bit of context is needed. For the past six years, the industry and its allies have done everything possible toward making FDA preemption the law of the land. That is, the goal has been to turn Michigan's drug industry immunity law – which fully shields drug companies from civil liability if their product is "in compliance" with FDA regulations – the national standard. There has never been any secret about this; Michigan has been designated "the model" by every preemptor from Daniel Troy, who is to FDA preemption what James Brown was to soul, to every law firm that defends pharma from product liability claims.

Read the article: We Are All the Mitten State: FDA Preemption and the Lipstick Problem

The Science and Law of Tracking Foodborne Illness

Bill Marler has started posting a ten-part series on foodborne illness and food poisoning litigation, The Science and Law of Tracking Foodborne Illness on MarlerBlog.  Excerpt from Part 1:

Foodborne Illness: A changing landscape

The issue of food safety is not new. A century ago, Upton Sinclair exposed the corruption within the U.S. meat-processing industry that caused federal meat inspectors to turn a blind eye to contamination in his muckraking book, “The Jungle.” But some important changes have occurred since Sinclair’s book.

First, meat and meat processing are no longer the most common source of foodborne illness. Today that dubious distinction belongs to seemingly innocuous and healthful vegetables, including lettuce, spinach, sprouts, tomatoes, spinach, green onions and parsley – even almonds. In the past 10 years, the U.S. Food and Drug Administration (FDA) reported 21 outbreaks related to fresh leafy products. Just last year, 205 people became sick and five died from eating E. coli-contaminated spinach. Late last year and throughout this year, the CDC reported that more than 425 people in 44 states became infected with Salmonella found in peanut butter, all traced to one processing plant in Georgia. More than 70 were hospitalized. From experience, we know cases of Salmonella are under-reported, so that it is likely that the number of people sickened may well have been more than 15,000.

Part 1

Part 2

Part 3

Hutt Merrill and Grossman's Food and Drug Law 3rd Edition

It's here!  The eagerly awaited (at least in my office) third edition of Hutt and Merrill's Food and Drug Law casebook is now available.  The third edition has a new co-author, Lewis A. Grossman, Professor of Law at American University.  Grossman joins Peter Barton Hutt, Lecturer on Law at Harvard, and Richard A. Merrill, Daniel Caplin Professor of Law at Virginia.

More information on the Foundation Press website

Journal of Food Law and Policy Seeking Submissions

The Journal of Food Law & Policy at the University of Arkansas School of Law is seeking article submissions.  A complete description of the journal and its work is available on the Agricultural Law Blog (the official Blog of the AALS Agricultural Law section).  The Journal of Food Law & Policy is the first (only?) student-edited legal journal in the country devoted to the study of food law and its impact on society.

Thanks to Professor Susan A. Schneider for the tip.

Developments in Administrative Law and Regulatory Practice,

Harrison M. Pittman (Research Assistant Professor of Law and Co-Director National Agricultural Law Center) has posted  Developments in Administrative Law and Regulatory Practice, on the Univ. of Arkansas National Agricultural Law Center website.

Abstract:  This article examines several important agriculture-related judicial, administrative, and legislative developments that occurred during 2005 and 2006. In particular, the article discusses three important decisions issued by the Ninth Circuit, including Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. United States, which was initially triggered by the May 20, 2003 discovery of a cow in Alberta, Canada infected with Bovine Spongiform Encephalopathy (BSE). The article also examines two Federal Circuit decisions that involved challenges associated with statutory amendments to the peanut quota program under the Farm Security and Rural Investment Act of 2002, commonly referred to as the 2002 Farm Bill. The article also highlights several important administrative developments, including regulatory amendments to the National Organic Program that occurred in response to the First Circuit's decision in Harvey v. Veneman and the issuance by the Environmental Protection Agency of a proposed rule that involves concentrated animal feeding operations.