- Salon.com ran a candid and insightful piece on the financial challenges of starting and operating a small farm. You should read the whole thing – you don’t get too many chances to hear a young farmer talk about how tough it actually is to run these small scale diverse farms everyone seems so excited about. The article provoked some of our thoughts on farm leasing, which we posted to the Food Law Firm Blog yesterday.
- We were surprised to learn that Sriracha – the original Sriracha – never sought trademark protection for their brand. The owner of the company explains the logic behind this in the LA Times this week, which makes some kind of perverse sense actually: “He believes all the exposure will lead more consumers to taste the original spicy, sweet concoction — which was inspired by flavors from across Southeast Asia and named after a coastal city in Thailand.” Though he seems to be doing quite well, we respectfully disagree considering how relatively cheap it is to seek trademark protection.
- Chicagomag.com profiles outgoing CEO of McDonald’s, Don Thompson. Thompson will step down as CEO on March 1 after a serious of poor quarterly earnings reports. He seems a decent fellow.
- QSR.com discusses Chipotle’s recent challenges supplying its restaurants with humanely raised pork. On several occasions during the Carnitas Crisis, we’ve been put-out during our (frequent) visits to Chipotle, having to substitute our first choice of pork with the still delightful chicken or beef alternatives. We therefore remain interested in future stories on Chipotle’s experience with the complexities of hog contracting.
- A Philadelphia CBS affiliate reports on an FDA study which claims to have found milk in several brands of dark chocolate. Milk is an allergen under the Food Allergen Labeling and Consumer Protection Act, and few of the dark chocolate manufacturers seem to be in compliance with the allergen declarations required by the law.
- The Environmental Working Group reports on a study indicating that consumers are not “scared away” by a GMO label: “…there was no consistent statistically significant difference in the average level of concern for GMOs expressed by people shown different labels. That is, the mere presence of the GMO label did not lead to a greater level of concern about GMOs.” Also quoted in the Environmental Working Group Article were two economists with the USDA who hold the opinion that “labels are generally a weak policy tool for changing consumer consumption behavior.” So is labeling an effective way to communicate with consumers or not? In last week’s Review, we linked to a study indicating that affluent consumers are more likely to heed warning labels.
- Reason.com reports that the U.S. Dietary Guidelines Advisory Committee will no longer list cholesterol among its “nutrients of concern.”
- The Hill has its list of five food policy topics that should be addressed in the State of the Union speech.
- The National Law Review reports on a recent ruling by a federal judge in Washington holding that manure, when not used as a soil amendment, may be considered “solid waste” under the federal Resource Conservation and Recovery Act.
- The New York Times exposes horrific treatment of animals at a USDA-funded research facility in Nebraska, where scientists are studying techniques to improve livestock yields. If you eat meat you are probably morally obligated to read this, but it’s a bummer.
- According to a survey conducted by Oklahoma State University, consumers want labeling of foods containing “DNA” in roughly the same percentage as those who want labeling of GMOs. Just as with the old “dihydrogen monoxide” gag, the study reveals more about the scientific ignorance of the sample set than it does about the need or rationale for mandatory GMO labeling.
- Geek-out on a favorite food law topics of ours: geographic indicators. A Georgia grower of vidalia onions took the state to court to prevent the commissioner of agriculture from enforcing a “no earlier than” packing date meant to keep immature vidalias off of store shelves.
- After California’s new size regulations on poultry battery cages came into effect in January 2015, it looks like the cost of eggs is going up within the state.
- More people want to ban raw milk than marijuana according to TIME.
- Via NPR, the more broken down your chicken is, the more likely it will be contaminated with salmonella. Whole birds are relatively the “cleanest”. Parts and quarters are less so. We are not likely to buy ground chicken anytime soon.
by Michele Simon
These days health-conscious consumers are increasingly seeking out food products not only with fewer ingredients and a “clean label”, but also foods produced in a manner that minimizes harm to the environment, among other ethical business practices. And it’s not enough to claim your product is healthy or sustainable with just words; to get that much-needed boost in a highly competitive marketplace, many food companies are spending the extra money to obtain third-party certification for various claims.
But before jumping on the “seal of approval” bandwagon, it’s important to understand the legal implications of various types of certification. For example, some seals are legally defined and require third-party certification while others are just voluntary.
Organic Seal: Federally Defined, Certification Required
Let’s start with the most rigorously-defined seal under federal law: organic. The U.S. Department of Agriculture requires strict adherence to various production practices for a farm or food product to obtain USDA organic certification. While the USDA itself does not certify, the agency maintains a list of approved third-parties. You must choose a certifier from this list to obtain organic approval.
In addition, USDA only allows its official organic seal for products that are either “100 percent organic” or for products containing 95 percent organic ingredients, in which case the product can be labeled simply “organic”. Also, the name of the third-party certifier must appear on the label. Products containing at least 70 percent organic ingredients can say, “made with organic ingredients”, but are not allowed to use the official USDA seal – an important distinction for marketing purposes.
Gluten-Free: Federally Defined, No Certification Required
Another popular claim being made on food products is “gluten-free.” Until recently, this claim had no legal definition. Then in August, the U.S. Food and Drug Administration began requiring food companies making gluten-free claims to adhere to specific federal regulations. However, in contrast to the USDA organic program, the FDA does not approve third parties for gluten-free certification, nor is certification required to make the gluten-free claim. Food companies are free to obtain gluten-free certification from a reliable third-party of their choosing, as long as that certifier uses the FDA definition at a minimum. (Some certifiers go further.)
Non-GMO: Not Legally Defined, Rapidly Changing
A good example of a seal program that is neither defined nor overseen by a government agency is the non-GMO label. Despite—or perhaps because of—recent controversy over genetically-engineered ingredients, the FDA has so far not required the labeling of foods containing GMOs. A significant response to this federal void in the wake of rising consumer demand has been an explosion of products on the market seeking to make “non-GMO” claims. The popular third-party certifier, the Non-GMO Project, claims to be “North America’s only independent verification for products made according to best practices for GMO avoidance.”
With several states (see the list here) already enacting GMO labeling bills and more being considered, along with ongoing litigation over “natural” labels on products containing GMO ingredients, pressure on the feds to act is mounting. In other words, this issue continues to be legally volatile. Also, remember that even though the federal government has not expressly defined “non-GMO”, such claims (along with any advertising) must still meet general federal rules to be truthful and non-misleading.
Additional certification programs cover kosher, vegan, and labor practices. I also recently wrote about “benefit corporations”. Some states allow a corporation to include ethical business practices in its legal charter. Companies can also obtain a related private certification by becoming a “B Corp”, and use that symbol as a marketing tool.
However you want to stand out in the marketplace with a seal of approval, it’s important to choose only legally-defensible claims and reliable third-party certifiers that adhere to current federal and state laws, as well as best marketing practices.
(This article has also been published at circleup.com)