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Is a new organization to define “natural” a good idea?

October 7, 2014

by Michele Simon

A new organization that’s yet to even formally announce itself made news for declaring its intention to define natural. The new group, called the Organic and Natural Health Association (ONHA), plans to hold a series of meetings as part of a transparent process that engages consumers as well as industry.

At a time when more shoppers than ever are seeking healthier products, the natural products industry is coming under increasing pressure to define the squishy term. No wonder, with so many food companies jumping on the “all natural” bandwagon, sometimes for products that bear little resemblance to anything found in nature, leaving many consumers confused and often duped.

Meanwhile the Food and Drug Administration has made it painfully clear it has no intention of defining natural, and given the undue political influence in Washington, that’s probably a good thing.

As I wrote about for New Hope Natural Media last year, in the wake of FDA inaction, class action lawyers have been filing lawsuits against food companies that use the natural label in a deceptive manner. Whatever you might think of this approach, in some cases it has forced manufacturers to do the right thing. For example, as a result of being sued over GMO ingredients in its “all natural” cereals and snacks, Barbara’s Bakery is now obtaining third party verification from the Non-GMO Project.

But litigation is not a long-term solution to an industrywide problem. So maybe the time has come for someone to step up?

I recently spoke to Karen Howard, the new group’s director, who explained that ONHA’s structure is unique in that it includes representation from both industry and consumers, and that the mission is much larger than just defining natural. The group will set standards for natural certification in four sectors: food, pet food, supplements and cosmetics, in just 90 days from its first open meeting at the Supply Side West trade show in October. When I asked Howard about undercutting organic standards, she told me the group is “100 percent committed to organic” and that the natural certification will complement organic, not replace it.

Still, many questions remain, such as how will this intersect with existing guidelines, such as those from Whole Foods Market or New Hope’s standards department? And will this new certification process truly educate consumers or will yet another seal on a box just add to the confusion? Also, will companies even participate? If they don’t, lawsuits are likely to continue to fill the void.


September 18, 2014

The Food Law Firm was recently interviewed by The Local Food Association (LFA), a national trade association for those engaged in the business of local food. LFA works to increase market access and market share for both sellers and buyers of local food across the United States. We are honored to have been included and look forward to working together. 

Insurance Options for Organic Farmers

July 10, 2014

by Jack Hornickel

The USDA’s Risk Management Agency (RMA) is on its way to providing insurance coverage for all organic crops, but farmers may have to wait another growing season before their investment is accurately protected by federal insurance programs. The trouble is that certified organic crops fetch higher sales prices than conventionally-grown crops; yet most organic crops only can be insured at conventional rates because the data for organic pricing remains limited. Previously, only three organic crops were priced: corn, soy, and cotton. The 2014 Farm Bill instructed RMA to determine pricing for all organic crops “as soon as possible, but not later than the 2015 reinsurance year.” While the beginning of the insurance year varies per crop, the RMA is nowhere near establishing price rates for all organic crops.

A recent RMA update tracks its progress and strategic plan moving forward. In addition to corn, soy, and cotton, the RMA has now established price rates for organic:

  • almonds (only in California),
  • apples, fresh (Idaho, Oregon, and Washington),
  • avocados (California),
  • blueberries (all types in California; Early to Late Highbush type in Oregon and Washington),
  • grapes, Concord (Oregon and Washington),
  • oats,
  • pears (Oregon and Washington),
  • peppermint,
  • peaches, nectarines, plums, and apricots (California),
  • stonefruits, fresh (Idaho, Oregon, and Washington), and
  • tomatoes, processing (California).

Clearly, the RMA has a long way to go before all organic farmers are fairly protected. Those on the eastern seaboard are particularly out of luck. Until the RMA is able to collect more robust and regional data that establishes the true value of organic production, federal insurance programs will continue to cut short on organic farmers.

In the meantime, the RMA recommends the following insurance programs that organic farmers can use to protect themselves at full organic value:

  • Contract Price Addendum – If organic farmers are growing crops under contract, they can use the contracted sale price as a price rate for federal insurance programs. This method can even be used for organic crops that have established price rates, providing insurance that is more reflective of the actual crop value. Currently, this coverage is available for 62 organic crops.
  • Actual Revenue History – This pilot program offers insurance based on the farmer’s actual documented revenue, protecting against losses based on yield, price, and/or quality. Unfortunately, the program is only available for cherries, navel oranges, and strawberries and limited to the states of California, Idaho, Oregon, and Washington.
  • Adjusted Gross Revenue and AGR-Lite – Based on income reported on federal tax returns, organic farmers can insure any agricultural production. AGR is available selectively by state, and AGR-Lite is available almost everywhere.
  • Whole Farm Revenue Protection – Designed for diversified farms, this new pilot program allows farmers to insure an entire farm rather than a specific commodity. Whole Farm Revenue Protection uses the same calculation as AGR and AGR-Lite but increases coverage. More information will be available later this summer.

FDA Prohibits Certain Omega-3 Claims

June 23, 2014

by Jack Hornickel

The FDA recently issued a final rule prohibiting the use of certain nutrient content claims regarding omega-3 fatty acids. After a lengthy review of proposed claims submitted by three companies, FDA refused to permit claims such as “good source of,” “high in,” and “fortified with” docosahexaenoic acid (DHA) and eicosapentaenoic acid (EPA), while allowing certain claims regarding alpha-linolenic acid (ALA) content. The rule becomes effective January 1, 2016.

Fortified with . . . stench

Fortified with . . . stench

The reason for FDA’s decision is quite logical. Under the Food, Drug, and Cosmetic Act, food producers can request official permission to use nutrient content claims, accompanied by supporting research from the National Academy of Sciences or some other federal health authority. Among other requirements, the request must prove that the nutrient content claim accurately represents the scientific research. Because phrases such as “good source of,” “high in,” and “fortified with” clearly imply a better-than-average nutrient content, the scientific research must identify a daily reference value of the nutrient — in other words, how much of the nutrient we should have in our diets.

After reviewing the provided scientific research from the Food and Nutrition Board of the Institute of Medicine at the National Academy of Sciences, FDA was not convinced. The scientific authority, FDA decided, did not accurately identify a baseline nutrient level to which the claims referred. Thus, without an adequate scientific basis, the nutrient content claims do not convey meaningful information; rather, they mislead consumers.

Omega-3 fatty acids are found in a number of food products and ingredients: soy, walnuts, canola oil, flaxseed, hempseed, chia seed, liver, fish, eggs, algae, and seaweed. Omega-3s are widely believed to reduce inflammation, and risk of heart disease and cancer. Thus, while the new FDA rule seeks to protect consumers from the proverbial snake oil salesman, it leaves consumers to refer to sites such as veganhealth.org and DHAbaby.com for tips on what foods are a “good source of” omega-3s. Food manufacturers may continue to make accurate labeling claims identifying the omega-3 content of their products, such as “contains ___ mg of DHA omega-3 fatty acids per serving.”

Meet Jack Hornickel, Food Law Intern

June 19, 2014

I always fashioned myself an environmentalist. Growing up in Minnesota, I more or less lived in the woods. During my teenage years in Ohio, I kept my punk friends from drive-by littering while we carpooled. In New York City, I rode my bike everywhere, painted rooftops white to keep buildings cooler in the summer, and petitioned for the electric Taxi of Tomorrow. Our day-to-day lives, as I saw it, were trashing this planet, and it only made sense that I should do my best to preserve it.

jack_desertOf the many interactions humans have with their environment, I came to realize, farming and eating are by far the most intimate. Our dear Earth provides us with the optimal circumstances to selectively grow the organisms that both fuel our bodies and taste incredible. What an awesome gift! Yet, as with many other human enterprises, farming and food production have become more industrial, more obscure, and more damaging to environmental and human health.

And so my environmental mission has been narrowed: Keep farms and food real. The more genuine our experience with growing and eating food, the healthier our bodies and planet will be. The best tool to accomplish this goal, by my logic, is the law. Law is the body of ideas by which our society operates, so the law should support real farming and real food. This can be accomplished either by discouraging destructive farm/food practices or by supporting healthy farm/food businesses. Though I plan to do both, I prefer the latter. The people are more interesting, their stories are more inspiring, and it leaves a better taste in the mouth.

I recently completed my second year at Vermont Law School, a student of the Center for Agriculture and Food Systems, and I am very excited to be interning with Foscolo & Handel PLLC this summer! Their knowledge of and passion for agricultural and food law is truly motivating. Keep an eye out for my blog posts on a wide range of topics; I can be reached at jackhornickel@vermontlaw.edu.

“Made With Real Sugar”

June 13, 2014

by Lauren Handel and Laura Gaudreau

PepsiCo’s announcement earlier this year that it will launch “Pepsi Made with Real Sugar” is part of a larger industry trend to market food products as containing simple, natural ingredients. It also is a response to developments in food law relating to the labeling of sweeteners.

Undoubtedly, Pepsi’s move to “real sugar” is designed to appeal to consumers seeking a natural alternative to high fructose corn syrup (HFCS). A previous attempt by the corn syrup industry to label HFCS with the more natural-sounding term “corn sugar” was rejected by FDA in 2012.

Pepsi’s announcement presents an interesting food law question: what is “real sugar” anyway? Under FDA regulations, the term “sugar” may be used in the ingredient statement of a food label to refer to sucrose obtained from crystallization of sugar cane or sugar beet juice that has been extracted by pressing or diffusion, then clarified and evaporated.

While a manufacturer may specify that cane sugar is used, FDA has taken the position that the term “evaporated cane juice” is misleading. A 2009 draft guidance from the FDA advises “sweeteners derived from cane syrup should not be listed on food labels as evaporated cane juice.”  The FDA advised that “cane juice” is not a juice as is defined in regulations, 21 C.F.R. §120.1, and therefore industry should stick to the wording “dried cane syrup.” Supporters of the 2009 draft guidance claim the term “evaporated cane juice” is false and misleading, implying to consumers it is healthier than regular sugar. Industry comments on the draft guidance urge the FDA to recognize that “dried cane syrup” has not historically been used by industry and is not recognized among customers.

In March 2014, FDA reopened the comment period for the 2009 draft guidance to obtain additional data and information on the properties of the ingredient described as “evaporated cane juice,” how it is produced, and how it differs from other sweeteners. FDA has not yet issued final guidance.

New Labeling Requirements under the Affordable Care Act

March 17, 2014

-by Gabriella Agostinelli

Under the 2010 Patient Protection & Affordable Care Act (ACA), the Food & Drug Administration (FDA) became responsible for issuing new rules regarding nutrition labeling in retail food establishments and vending machines.

Section 4205 of the ACA requires “restaurants or similar retail food establishments” with twenty or more locations to provide clear labeling of the calorie counts of their standard menu items. A business qualifies as a “restaurant or similar retail food establishment” when it sells restaurant-type food and its primary business activity is the sale of food to consumers. All affected businesses are required to display a statement of daily recommended calorie consumption as well as written nutrition information when requested – listing the calories, fat, cholesterol, sodium, carbohydrates, sugars, fiber, and protein amounts.

Section 4205 also calls for similar requirements to be enacted for vending machines when the owner operates 20 or more machines.

Mobile Vending

No longer compliant


While the ACA mandated the FDA to issue labeling implementation rules by March 2011, no such final rule has been created. FDA Commissioner Margaret Hamburg recently stated that writing a new menu labeling law “has gotten extremely thorny” due in large part to strong lobbying by supermarkets, convenience stores and other retailers that sell prepared food.  In theory, new labeling requirements could affect thousands of items in each supermarket – including prepared foods, cut fruit, bakery items and other store items that aren’t already packaged and labeled. If that were the case, each store would likely be required to send each of those items out to be lab-tested, do paperwork to justify the ingredient and nutritional information for each item to the FDA, and then create new labels and train employees to use them.

In sum, compliance costs are coming for restaurant groups and vending machine owners, but we don’t know when. Stay tuned.

Why I Am a Food Lawyer

February 27, 2014

by Lauren Handel

LaurenEarlier this week, we announced the launch of this firm and Jason had very kind things to say about me. I too would like to take the opportunity to express how proud and fortunate I feel to be working with Jason as co-owners of the Food Law Firm. Jason had the vision and guts to create a law practice focused on serving independent food and farming businesses. He inspired me to become a food lawyer, and for that I am so grateful.

When I first met Jason, I had been working for 10 years at a very large law firm doing mostly product liability and environmental litigation. Although there were many things about that job that I liked, it was not personally rewarding work, and I knew I had to leave. The only problem was I had no idea what else I would do. My biggest passion was food, but I was not sure I could turn that into a career. When I heard about Jason’s law practice, that was the moment the light bulb went off in my head. For the first time, I realized that I could use my skills and the things I loved most about being a lawyer – problem solving and advocating for clients – to help ensure the success of good food businesses.

Now that Jason and I have begun this law practice, I have my dream job. Every day, we get to help people who produce and sell excellent food and beverages. Our clients are creative and care deeply not only about quality, but also about integrity. We, likewise, aim to be an innovative, different kind of law firm — one that delivers quality legal services, but also shares our clients’ values and cares about their success. Like so many of our clients, we are just starting our business. I look forward to seeing how we grow together.

Foscolo & Handel PLLC, The Food Law Firm

February 24, 2014

by Jason Foscolo

JasonIt is with great pride that I publicly announce the launch of Foscolo & Handel PLLC, a new law practice dedicated to servicing the legal needs of farmers and food entrepreneurs. Earlier this year, Lauren Handel and I officially teamed up to combine our skills, experience, and resources for the benefit of our rapidly growing base of clients. Foscolo & Handel PLLC can now offer the community of food entrepreneurs more services, such as litigation, and with greater flexibility and availability than ever before.

I am particularly excited to be working alongside an attorney of Lauren’s caliber. Her incredible dedication to the burgeoning field of food law is truly inspirational. After 10 years at a prestigious “BigLaw” firm in New York and Washington, D.C., she chose to reorient her professional life to help support the kinds of clients that matter to her personally, those in the food industry. Her professionalism, commitment to her new clients, and her remarkable passion for food law inspire me to be a better attorney every day that we work together. The knowledge and experience she brings to this partnership will prove to be invaluable assets to our clients.

I’d also like to take this opportunity to thank our clients and colleagues, whose support and trust in our unique legal expertise has sustained the rapid growth of this firm since its founding in 2011. Their continuing commitment to our firm is a testament to the usefulness of food law to their businesses.

Foscolo & Handel PLLC, the full service, general practice Food Law Firm, is now officially open for business.

“Sell-by” Labeling: A Possible New Burden for Food Businesses

October 31, 2013

If you are a food producer, a new labeling requirement could be headed your way.

Last month, a Harvard Law/Natural Resources Defense Counsel joint study discovered that misinterpretation of dates printed on packaged foods is a significant contributor to national food waste.  Shockingly, confusion over terms like “sell-by” and “best before” cause Americans to waste 160 billion pounds of food each year, costing the average family of four between $1365 and $2275 annually. The study recommended a series of actions to improve our food waste problem, including making sell-by dates invisible to consumers, developing a uniform consumer-facing date-labeling system to avoid misinterpretation of a food’s freshness, and increasing the use of safe-handling instructions on date labels.

Manufacturers often determine freshness dates (i.e. sell-by, best by, and expiration dates) through shelf-life testing. This can be done by testing and monitoring a product over its actual shelf-life, which can take several years for very stable products, or through accelerated shelf-life testing, where food is stored and studied in test-abuse conditions of differing temperature and humidity levels. For now, the use of shelf-life testing is “almost entirely optional” and is often avoided due to its high costs. The Harvard/NRDC study, however, advises that manufacturers using label dates should be required, “where practical,” to engage in quantitative shelf-life testing to determine appropriate dates.  If this or other similar studies inspire stricter date-labeling regulations, food manufacturers could become obligated to employ shelf-life testing, perhaps to their financial detriment.

Information is a great thing to give a consumer, but it will come with a cost.  Compliance with existing labeling laws is already financially and logistically challenging. Manufacturers are already required to:

  • Structure a label in accordance with FDA guidelines, which are so specific they indicate the appropriate font sizes to be use on different portions of the label.
  • Understand how to articulate nutrient content claims like “low-fact”, “high in Omega-3”, and “sugar-free.
  • Determine the presence of and properly list 8 major allergens on their labels;
  • Analyze the nutrition content of their foods, then properly state it on their Nutrition Facts Panel.
  • Keep abreast of changes in regulation to marketing claims like  “gluten-free” or “all-natural”.
  • Understand the various types of health claims that can be made on products and the varying levels of scientific substantiation needed for each one.

Preventing food waste is a noble goal, but it will be an additional burden for those new to the marketplace. With every aspect of a food label already controlled by federal regulation, adding another compliance requirement would disproportionately burden the small producer in particular.