Table Scraps


BioTech—What It’s Really All About

The 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:

The 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.

Our 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.

Senate Passes Allergen Labeling Bill

The 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?

While 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.

Low Carb, But Bad

KFC 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.

Where 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?

Remember COPPA?

Just 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.

Creating a new website? Redoing your current one? Better call Zackler & Associates before you get notice from the FTC.

Watch Out For the Hotdogs — They’re Loaded (and We Don’t Mean with Fat)

A 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.


Denmark 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 name.


Senator 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.


The 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.


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.


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.


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.


Slicing 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 British supermarkets.


A 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.


It 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.


In 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.


FDA 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.


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