It’s Really All About
following is a text of letter that appeared in the San Francisco
Chronicle concerning the protests at the Biotech Industry Organization’s
BIO 2004 June conference in San Francisco:
street protests, educational lectures and "greening" efforts
of activists this week show the growing opposition as well as alternatives,
to using genetic engineering technology to produce the food we all
eat. What many in the media and industry fail to understand are the
connections between this issue and others, such as war and exploding
prison populations. Here it is loud and clear: corporate power.
world, from our food to our international relations, is being shaped
by the profit-driven corporate agenda. These issues are not simply
thrown together to make bigger protests. Broadly focused demonstrations
reflect the broad scope of corporate domination of our lives.
Passes Allergen Labeling Bill
Senate has passed and sent to the House an amendment to the Food &
Drug Act which would require the specific identification in ingredient
statement on the lablel of processed foods of the presence of any
one or more of the eight major allergens that are present in the products.
The bill would require the source food of any ingredient derive from
one of the eight allergens to be listed. For example, “semolina
(wheat),” “albumin (egg),” or “whey (milk).
Alternatively the ingredient statement could merely state the presence
of the allergen (e.g., “contains wheat”). The bill appears
to generally codify FDA policies pertaining to the identification
of major allergens on food labels.
Low Carb as to What?
the “low carb” labeling craze appears to be continuing
unabated, we did notice a couple of warning letters that the FDA sent
concerning the proper use of this otherwise unsanctioned term. The
letters, one to Russell Stover Candies and the other to Peak Performance
Foods, stated that their respective “low carb” claims
were false or misleading because the products had the same amount
of carbohydrates per serving as comparable products.
Carb, But Bad
has been taken to task by the FTC for advertising its fried chicken
as having less fat than a BK Whopper and claiming that the chicken
is compatible with a low carbohydrate weight lost program. The
FTC noted that the chicken was still loaded with trans fat, sodium,
calories and cholesterol and that Atkins and the South Beach low
carb diets (neither one of which were specifically mentioned in
the ads) don’t
endorse the consumption of breaded fried food.
was the FDA? Well, restaurants are not subject to FDA regulation.
(Note that the FDA has strict rules when foods can make nutritional
claims. The FDA also has no rules, as yet, for low carb claims
that “everyone” is making.) The real question is where were
(or are) the fat plaintiffs’ lawyers?
about everyone has a website. Several years ago in order to protect
the young ones from any mischief that might befall them on the
internet, Congress passed the Children’s Online Privacy Protection Act
or “COPPA,” pursuant to which the FTC enacted strict (and,
of course, confusing) regulations pertaining to how websites can communicate
with kids who are 12 and younger and some costly penalties if you
don’t comply. Well as recently reported in the NAD’s Do’s
and Don’ts in Advertising, the FTC has undertaken a slew of
enforcement actions including cases against GeoCities, Liberty Financial
Companies, Toysmart, Monarch Services, Girls Life, Lisa Frank, American
Popcorn Company, Mrs. Fields Cookies, Hershey Foods, and UMG Recordings.
What these actions illustrate is how easy it is to run afoul of COPPA.
a new website? Redoing your current one? Better call Zackler & Associates
before you get notice from the FTC.
Out For the Hotdogs — They’re Loaded (and We Don’t
Mean with Fat)
woman claimed that a Hebrew National hotdog that she purchased at
a refreshment stand in an Irvine, California Costco store contained
a 9 mm bullet. After biting into the bullet the woman was taken
to the hospital after she complained of stomach pains and doctors
found that she had ingested another bullet. A check of all the
remaining hotdog packages by the Irvine police did not find any
additional ammunition. A check of the FDA website does not list
any subsequent recall of “loaded” hotdogs.
NAME THAT FOOD SAGA #613
has sued the European Union ("EU") for the right to sell
"feta" labeled cheese that is made in Denmark. As discussed
in prior issues of Food Law Update the EU has developed a list of
hundreds of products whose name is proprietary to a particular region
including about 150 cheeses. Greece has contended that "feta"
cheese can only be produced in certain regions of Greece and made
from special goat and cow’s milk that will keep the cheese from
turning yellow. The Danes and other European producers make their
"feta" cheese by adding a whitening compound. Meanwhile
EU negotiators at the WTO have proposed a trade rule that would only
allow products produced in a specific regtion to use that region's
RECALL BILL INTRODUCED
Tom Harkin (D-Iowa) has introduced a bill to give the FDA and the
USDA the power to order mandatory recalls if firms refuse to conduct "voluntary" recalls. Harkin’s
bill provides for civil penalties of up to $500,000 for violation
of a mandatory recall order. The bill would not affect any civil
liabilities that firms could have for consumer injuries.
GOES TO THE SUPREMES
United States Supreme Court has agreed to hear an appeal of Karsky
v. Nike in which, as we reported in Foodlaw, Winter 2002, a majority
of the California Supreme Court held that alleged misstatements
by a company on public policy issues of interest to its operation
are actionable under California’s ubiquitous Unfair Practices Act.
By the way, we also forgot to give the justices of the California
Supreme Court credit where credit is due. Voting in favor of plaintiff
Karsky’s lawsuit were Chief Justice George and Justices Werdegar,
Kennard, and the Court’s only Democratic appointee Justice
Moreno. The dissenters were Justices Chin, Baxter, and Brown. You
decide who gets the credit.
THEY’LL BE FLYING
New EU regulations will go into
effect within the next 90 days that will require farmers to put "toys" in pigsties. The regulation,
which does not specify any particular object, requires one toy for
every 20 pigs. Because there are no pig toys on the market (yet),
among the objects being considered by farmers are balls and chains.
The regulation was enacted because, according to animal welfare rights
activists, bored pigs chew on each other. Now they’ll get to
fight over who gets to play with the toy.
IN A NAME? INJUNCTION ISSUES AGAINST PRODUCT NAME THAT CONVEYED A
divided United States Court of Appeals in Philadelphia has upheld
the issuance of a preliminary injunction in a lawsuit brought by
Norvis to bar Johnson & Johnson from marketing its over the counter heartburn
medicine as “Mylanta Night Time Strength.” Norvis had
sued J&J under the federal Lanham Act on the ground that “night
time strength” implied that the product had been specially formulated
to work at night time, when, in fact, the product’s formulation
has no such unique characteristic.
ASKS WTO TO PROHIBIT THE USE OF GEOGRAPHICAL NAMES ON FOODS PURCHASED
OUTSIDE THEIR AREA OF ORIGIN
The European Union has asked
the WTO to issue regulations to prohibit the use of geographical
names on foods produced outside their area of origin. This prohibit
already applies to wine and spirits. For example cheeses labeled “parmesan” could only come from
the Parma region of Italy. Under the proposed rule domestic “parmesan”
products would have to be labeled something such as hard aged cheese.”
Not surprisingly, the Grocery Manufacturers of America isn’t
in favor of the idea.
AND DICING WON’T BE COVERED BY EU’S REGION OF ORIGIN
and dicing apparently won’t be covered by the EU’s region
of origin labeling proposal. An EU judge has rejected complaints by
Parma ham producers that objected to the labeling of their ham as
“Parma Ham” after it had been sliced and packaged in
IT STOLI OR _____?
dispute has arisen concerning the ownership of the Stoli trademark.
SPI Spirits Group, which says that it purchased the mark, claims
that elements in the Russian government are trying to take over
the trademark and have refused to allow export of 150 containers
of mostly Stoli product. SPI has sought the support of the US Congress
in the dispute. Our guess is that they won’t settle this
dispute over a glass of beer.
OUT FAST FOOD INDUSTRY
looks like the fast food industry better watch out. While fast food
companies have been attacked over the years from everything ranging
from poor quality food, poor nutrition, low employee pay and tasteless
architecture, it looks like the attacks are going into high gear
with publication of books such as Eric Schlosser’s Fast Food Nation,
proposals for special soda pop or fast food restaurant taxes and a
recent report attacking “super sizing” by the Naderite
Center for Science in the Public Interest. (And we always thought
that paying less for more increased consumer welfare.) With the birth
of social cause litigation such as tobacco, guns, and managed care
health insurance, we think it only a matter of time before some mega
lawsuits are filed against the industry targeting advertising, nutritional
disclosures, ingredient sourcing, etc. There may be a future for
tofu burgers. Meanwhile, any industry responses in California to
the critics will have to keep Karsky in mind.
RESPONDS TO CITIZEN’S PETITION
response to a Citizen’s Petition, the FDA has reclassified nicotine
water from dietary supplement to drug based upon claims on the manufacturer’s
web site and the fact that nicotine is an active ingredient in drugs
that the FDA has approved for anti-smoking therapies. The reclassification
means that nicotine water cannot be legally sold until the FDA approves
a new drug application. For further comment concerning the legal differences
between dietary supplements and drugs as well as food, see our new
“Ask Allan” feature below.
APPROVES OF GRAS
has published a regulation listing as GRAS a new sweetener manufactured
by Nutrasweet called Netome which is about 10,000 times sweeter than
sugar. The approval came after FDA reviewed 113 animal and human studies
for toxic effects.