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Labeling Archive

Food Law and Policy Weekly Review, February 23 -27

February 27, 2015

 

  • news-boy1There is a fantastic article in Inc.com on the rise of GT’s Kombucha, the company credited with creating the kombucha product category we know today. They hit a few legal snags along the way, which we will discuss in a blog post next week, but otherwise it’s an inspiring story of a bootstrapped, profitable,  privately and closely held company with a dominant market share.
  • Farmanddairy.com describes the regulatory challenges faced by  nonprofit seed libraries, where farmers, gardeners, and growers can exchange self-pollinating seeds rather than buy them from the catalogue or the hardware store. Laws in several states make no distinction between these small, informal groups and larger commercial seed companies – both are regulated as seed distributors and must comply with inspection and labeling requirements.
  • A California lawmaker is considering a law to include warning labels on soft drinks. The label will state: “contributes to obesity, diabetes, and tooth decay.”
  • KVNO News does a really good job of explaining why Country of Origin Labeling (COOL) is so important for farmers and ranchers. As you might know, in October the World Trade Organization determined that US COOL labeling constituted an unfair restrain on world trade. COOL is important to US farmers, who understand that that consumers will have a natural bias for meat raised domestically. COOL is less important to meat packers, who prefer to fill their orders with meat produced as cheaply and efficiently as possible, no matter where it is raised. Read the whole thing.
  • Fun fact: AMTRAK’s food and beverage service lost an average of $87 Million in the years between 2006 and 2012. A bill before the House will require AMTRAK to eliminate the operating loss within 5 years.
  • Agriview covers the story of a farmer who fled falling prices for commodity milk and started producing artisanal cheeses for the direct market.
  • NPR delves once again into immigration status and farm labor. One farmer interviewed for the piece tacitly admits that he prefers to have the immigration status of his workers remain indeterminate. Farming, he says, is an industry where illegal immigrants can work and remain off of the radar. If they were to become legal, “that pressure is off. Now they can go to the cities and look for construction jobs, or manufacturing jobs” and thus create acute employment problem for him. That’s admirably candid of him, but unfortunate for the laborer.
  • Michele writes about our declining appetite for red meat and the factors leading to our decreasing consumption in Al Jazeera America.
  • Finally, an extended read for the weekend fireside. Washingtonian writes about the spectacular implosion of Serendipity 3 in 2014. It all started with a bad partnership agreement, then some stuff got broken and everybody got mad and someone almost went to jail but then no one ate ice cream anymore and it was sad.

Food Law and Policy Weekly Review, February 9 -13

February 12, 2015
  • 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.
  • SrirachaWe 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.”

Food Law and Policy Weekly Review, February 2 – 6, 2015

February 9, 2015

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  • Cornell announced a $712,000 in USDA grant for its Northeast Beginning Farmer Program. Part of the the funding will be dedicated to creating training programs and farmer-to-farmer networks for military veterans transitioning into agriculture. Services to be provided by the Farmer Veteran Coalition.
  • For our New York clients and friends, in the farming community, Farm Bureau of New York is pressing the state legislature for an investment tax credit that would reimburse farmers for their expenses on items that are considered an investment in their business, such as construction supplies, machinery and new technology. The credits are intended to support the efforts of young farmers in particular.
  • If you are a food business subject to regulation by the FDA, you might notice an increase in FDA inspections in 2016. That is because the FDA issued a press release outlining its $4.9 billion budget request for FY 2016. The rationale for the request is to implement the Food Safety Modernization Act. According to the press release, a portion of this budget will be earmarked for the hiring and training of new inspectors.
  • In 2015, certain restaurants will have to comply with FDA guidelines on nutrition labeling. A recent study has indicated that affluent customers are more likely to utilize the kind of information required by the regulations.
  • Natural Products Insider advises supplement manufacturers to have a robust game plan to defend against class-action lawsuits. They recommend manufacturers perform label review by an experienced attorney as part of the risk mitigation strategy. Good advice for food manufacturers as well, and label review is one of our core services.
  • Breyer Ice Cream announced it will no longer be using milk from cows given rBST, recombinant Bovine Growth hormone.
  • D.C. Circuit Court of Appeals agreed with a previous finding of the Federal Trade Commission that POM Wonderful made deceptive claims in its advertising.

Food Law Bits and Pieces, January 26 – 29, 2015

January 29, 2015

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  • The New Yorker has an excellent article highlighting gaps in food safety regulation and enforcement powers — gaps that continue to create cases for attorney (and adjunct professor in the University of Arkansas School of Law’s LLM Program in Agricultural and Food Law) Bill Marler who represents victims of foodborne illnesses.
  • Possibly addressing the gaps discussed in The New Yorker article, new legislation has been introduced in Congress to create a single federal food safety agency, as Food Safety News reports.
  • Food Safety News also reports on Wyoming’s Food Freedom Bill, which would exempt transactions directly between food producers and “informed end consumers” from state regulation and provides that such consumers assume the risk of injury from consuming the food.
  • The American Academy of Pediatrics released a study on Physical Activity Calorie Equivalent (PACE) labeling on menu items to encourage parents to make smarter choices when choosing food for their children at restaurants, which prompted a quick blog post from us.
  • The Columbia Missourian has a great story on Cody Waters, an Iraq War veteran now making the transition into farming.
  • The Wall Street Journal reports on rising egg prices in California, attributing the rise to changes to the new welfare standards for egg laying hens that took effect this year.
  • Don Thompson, CEO of McDonald’s, well step down from his post effective March 1. Recall that last November, Fortune Magazine ran a fantastic piece on the company’s recent decline and described a couple of Thompson’s key initiatives intended to get McDonald’s back on its feet. Those initiatives included the ability to use an in-store kiosk to build your own burger, or hiring Mythbusters guy Grant Imahara to tour a meat processing facility with a camera crew. We noted at the time that it seemed as though some of the better criticisms in the Fortune piece came from “former employees” of the company, who said things like  “The problem is the truth. They are a mass feeder” and “McDonald’s has forgotten over the past decade that the consumer makes emotional decisions.”
  • A federal bill introduced to create a single federal food safety agency, sponsored by Senator Richard Durbin and Congresswoman Rose DeLauro. The bill is called the Safe Food Act of 2015.
  • Jdsupra.com reports on the difficulties plaintiffs are having in pursuit of their “all natural” claims litigation. Read the whole thing, but if the details are a bit too geeky for you, the short of it is, “all natural” claims cases are not easy money for plaintiff’s law firms.

Food Law Bits and Pieces, January 20 – 23

January 22, 2015

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  • 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.

Proposed FDA Rule Will Revamp Nutrition Labels

April 4, 2014

by Gabriella Agostinelli

For the first time in two decades, the FDA has proposed significant changes to nutrition labeling. The agency’s proposed nutrition labels will affect all packaged foods except meat, poultry and processed egg products, which are regulated by the Department of Agriculture rather than the FDA.

 

Proposed Label

Proposed Label

The proposed changes include:

  • Serving sizes will be updated.

Serving sizes would more accurately reflect the amounts people actually eat, rather than what they should eat. The proposal modifies the serving size in about 17 percent of the 150 categories of packaged food. For example, a 20 oz. bottle of soda would constitute one serving, rather than the 2.5 servings currently listed. Ice cream servings would increase from half-cup to a more realistic one-cup serving.

  •  “Added sugars” will be incorporated into the labels.

After the 2010 Dietary Guidelines for Americans stated that intake of added sugar is too high in the U.S. population and should be reduced, the FDA has included a separate line on the label to alert consumers of any added sugars.

  • Calories from fat will be removed.

Studies now show that the type of fat matters more to our health than the number of calories from fat. Labels for unsaturated, saturated, trans and total fat will remain.

  •  Daily values for nutrients will be revised.

To better reflect current nutrition knowledge, several daily value estimates will change, including sodium and fiber.  For example, the agency may reduce the daily recommendation on sodium from 2,400 mgs to 2,300. 

  • Vitamin emphasis will shift.

Vitamins A and C will be replaced by Vitamin D and potassium, as many Americans are not getting enough of these important nutrients.

  • Key nutrition data will be highlighted.

The proposed label format emphasizes elements such as calories, serving sizes and Percent Daily Value, as they are vital in addressing current public health problems like obesity and heart disease.

  • For larger packages, a new dual column format would be required.

The agency has proposed “dual column” labels to indicate both “per serving” and “per package” calorie and nutrition information for larger packages that could be consumed in one sitting or multiple sittings.

 So far, reviews have been mixed regarding the value of these changes. Critics suggest that only a small portion of Americans actually pay attention to the proposed labels, which would cost the food industry an estimated $2 billion. Supporters of the proposed rule maintain that the changes will improve consumer awareness, incentivize producers to make their food products more healthful, and lead to smarter food purchasing decisions by consumers.

The proposal is open to public comment until June 2, 2014, and months will pass before the final rule is announced. Once a rule is finalized, food companies will have two years to put the changes into effect.

Aspartame in Milk: Your Dairy is About to Change and You Won’t Even Know It When It Does

March 27, 2013

The dairy industry recently created quite a stir after the public release of its petition to the FDA to amend the definition of milk. Essentially, the industry wishes to change the standard of identity of milk so that a product flavored with a “non-nutritive sweetener” like aspartame can still marketed and labeled as plain ol’ milk. See 78 FR 11791-01; 21 C.F.R. § 131.110 Milk. The dairy industry petition states the amendment would “promote more healthful eating practices” and “reduce childhood obesity” by providing low-cal flavored milk options. Id.

“What’d that guy just say?”

Currently, if the industry wishes to add artificial sweeteners to milk, they have to label it as such, or at least include a nutrient content claim like “reduced sugar” or “low-calorie” to the label. But under the proposal, the industry could completely eliminate these claims from milk labels. As long as an artificial sweetener is included in the listed ingredients, the product may simply be labeled “milk.”

The dairy industry defends this measure by insisting nutrient content claims are unattractive to consumers. It even goes as far as saying that consumers can “more easily identify the overall nutritional value” of artificially-sweetened milk products if “the labels do not include such claims.” id.

Consumer advocacy group SumOfUs.Org has already collected over 111,000 signatures petitioning the petition. Kaytee Riek of SumOfUs.org shared with HuffPost that a major problem with the proposed amendment is that it creates an effect running counter to its stated purpose: “Hyper-sweet additives like aspartame rewire children’s brains so that they always want sugary foods, turning the kids into tiny consumption machines.”

Others are concerned about consumer deception. By not fully disclosing that a milk product may be loaded with chemical sweeteners, the milk industry faces major consumer wariness.

Amid a national decline in milk consumption, it is obvious the industry is doing what it feels best to increase numbers. From a business standpoint, it makes sense for the dairy industry to jump on the artificial sweetener bandwagon.

But let’s be honest folks. Robbing consumers (many of whom dislike or distrust artificial sweeteners) of label notifications like “reduced-sugar” won’t help us. It will anger us. In our very busy lives, the last thing we need is to run to the store for some “milk,” only to come home and discover we got something different than we bargained for. The dairy industry certainly has the right to sell artificially-sweetened milk, but we have just as much right to be fully-informed consumers.

The FDA’s comment period on the dairy industry petition lasts through May 21. If you have thoughts you would like to share, learn how to make your own submission here.

– By Gabriella Agostinelli

California’s Prop 37, GMO Labeling, Part 4

September 28, 2012

Lauren Handel is back to conclude her series on California’s Proposition 37, today addressing the real logistical challenges businesses will face when the time comes to comply with this law.

If Prop 37 passes (which, according to a recent poll, seems likely), and if it is not stayed or struck down by the courts, manufacturers, retailers, and distributors of food sold at retail in California will have to make some significant and potentially costly changes to ensure they comply by July 1, 2014.

The most obvious implication of Prop 37 is that food labels and retail displays will have to be changed for many foods sold at retail in California. It has been reported that 60 to 70 percent of processed foods sold in U.S. grocery stores contain at least one genetically-engineered ingredient. Because the vast majority of corn, soybeans, and sugar beets produced in this country are genetically engineered, chances are that any product made with an ingredient derived from those crops would come within Prop 37’s labeling requirement.

These are the basic components of virtually every food there is to eat on supermarket shelves. Almost all products would have to be re-labeled on the front or back of the package with the required language, “Partially Produced with Genetic Engineering” or, to the extent the manufacturer is uncertain about whether the product contains genetically-engineered ingredients (or cannot document that it does not contain genetically-engineered ingredients), with the words “May be Partially Produced with Genetic Engineering.”

Food makers will have create special labels for those products destined for the California market, or make California-compliant labels for all products meant for nation-wide distribution.

In addition, for all processed foods—except those that are certified organic, that are derived entirely from a non-genetically-engineered animal, and alcoholic beverages—any language stating or implying that the product is “natural” would have to be removed from the label. As of July 1, 2014, if a retailer has products in inventory that are not properly labeled, they would have to be removed from the shelves and could not be offered for sale to consumers.

In order to enforce the labeling provisions, Prop 37 would impose extensive recordkeeping obligations. Based on the text of Prop 37, any food producer or marketer who wants to avoid labeling their products as genetically engineered (or as potentially containing genetically-engineered ingredients) would have to generate and maintain extensive records to document that their products have not been intentionally produced with genetic engineering. That is because the law would presume that foods have been produced with genetic engineering unless the manufacturer and everyone else responsible for complying with Prop 37—i.e., everyone in the supply chain from the manufacturer to the retailer—obtains a sworn statement from their direct supplier attesting that the food or ingredient has not been knowingly or intentionally genetically engineered and that it has been segregated from food that may have been genetically engineered. So, even if a manufacturer has no reason to believe that its product is made with genetically engineered ingredients, to avoid labeling the product “May be Partially Produced with Genetic Engineering,” the manufacturer would have to obtain an affidavit from each of its ingredient suppliers, maintain those records with some tracking system linking affidavits for particular lots of ingredients to the batches of finished products produced with those ingredients, and provide a similar affidavit to its customer which would have to do the same thing until the product reaches the retailer.

Presumably, by regulation, the California Department of Health could limit some of the recordkeeping burdens by carving out entire categories of foods that would not have to comply with Prop 37’s labeling requirements because no genetically-engineered variety exists in the marketplace (for example, most whole fruits and vegetables) or because the ingredients used in the food (perhaps, as defined by a regulated standard of identity) are not genetically engineered. However, such exemptions would not apply to products made with ingredients derived from corn, soybeans, sugar beets, canola or other crops that are likely to have been genetically engineered or commingled with genetically engineered crops.

Although violations of Prop 37’s requirements would be difficult to police, the consequences for noncompliance would be serious. Foods offered for retail sale in California that do not comply would be deemed “misbranded.” It is illegal to manufacture, sell, offer for sale, store or deliver “misbranded” food. Violators are subject to criminal or civil prosecution, and the product may be seized or embargoed by the state. Violations of Prop 37’s requirements also would be deemed “unfair or deceptive acts” in violation of California’s Consumer Legal Remedies Act, which permits private citizens to sue individually or through a class action for compensatory damages, injunctions, and punitive damages. Significantly, to bring such a suit, plaintiffs would not have to show that they had been damaged by or relied on the defendant’s allegedly deceptive label. Prop 37 also would allow private citizens to sue violators under the Health and Safety Code for injunctions and, if successful, for their costs incurred in investigating and prosecuting the action.

– by Lauren Handel

Counterfeit Lobster

August 5, 2011

With lobster prices temporarily depressed due to a harvesting glut, is mislabeling like this really necessary? And what is so bad about crawfish that we have to lie about it on a product label?