USDA proposes improving healthy food access

Posted February 18, 2016

Under a proposed rule change announced Tuesday by the USDA, retailers who accept food stamps would have to stock a wider variety of healthy food options or risk losing their ability to accept Supplemental Nutrition Assistance Program (SNAP) money.

The AP reports that the proposed rules are designed to ensure that the 46 million-plus Americans who use food stamps have better access to healthy foods. A person using food stamp dollars could still purchase junk food, but would have more options in the store to buy fruits, vegetables, dairy, meats and bread.

According to the Federal Register website, the Food and Nutrition Service (FNS) is proposing changes that address depth of stock, amend the definition of staple foods, and amend the definition of “retail food store” to clarify when a retailer is a restaurant rather than a retail food store. The rulemaking also proposes that FNS begin disclosing to the public specific information about retailers who have violated SNAP rules.

The 2014 Farm Bill increases the requirement that certain SNAP authorized retail food stores have available on a continuous basis at least three varieties of items in each of four staple food categories to a mandatory statutory minimum of seven varieties. Further, the 2014 Farm Bill increases the minimum number of categories in which perishable foods are required from two to three. 

Kevin Concannon, USDA undersecretary for food, nutrition and consumer services, said in a statement, "USDA is committed to expanding access for SNAP participants to the types of foods that are important to a healthy diet. This proposed rule ensures that retailers who accept SNAP benefits offer a variety of products to support healthy choices for those participating in the program."

However, in a message on its website, the National Association of Convenience Stores (NACS), an industry trade group, says the rule change goes “significantly beyond” the statutory requirements in the 2014 Farm Bill and concluded that, “As currently drafted, the proposal will make it increasingly difficult for convenience store owners and operators to participate in SNAP, which in turn will negatively impact the many SNAP recipients that use their benefits at NACS members’ stores.”

Comments on this proposed rule can be made via the Federal e-Rulemaking Portal until April 18, 2016. 

Court rejects lawsuit alleging Chipotle’s advertising deceived customers

Posted February 15, 2016

A federal judge in California recently rejected a lawsuit that alleged Chipotle deceived consumers by advertising its menu as GMO-free, concluding that the plaintiff failed to state a specific claim against the fast-food chain.

In Colleen Gallagher v. Chiptle Mexican Grill, Inc., Chipotle avoided a proposed class action claiming the restaurant chain falsely advertised its menu as free of genetically modified ingredients. The court found that the plaintiff’s claims were not specific and did not hold to a consistent definition of “GMO."

The plaintiff contended that Chipotle’s GMO claims were false or misleading because the fast-food chain sells meat and dairy products derived from animals that consume genetically modified food and because Chipotle sells third-party soft drinks containing GMOs.

Per her complaint, Gallagher defined “GMO” as “any organism whose genetic material has been altered using genetic engineering techniques.” The court noted that the plaintiff’s complaint recognized that the term “organic” is used to describe "non-GMO meat and dairy products sourced from animals that did not consume genetically modified feed."

Critically, however, the court determined that the plaintiff never alleged in her complaint that Chipotle represented its ingredients as “organic” or explained “why a reasonable consumer would interpret “non-GMO” to mean the same thing as “organic.” Furthermore, the plaintiff never alleged that she actually purchased any food items containing GMOs and therefore, did not suffer an injury-in-fact.

U.S. District Judge Haywood S. Gilliam, Jr. dismissed the suit, but gave the plaintiff leave to file an updated version clarifying why reasonable consumers would likely be deceived by Chipotle’s GMO claims.

(Image courtesy pixabay.com) 

Chobani ordered to stop running ads against rival yogurt maker Dannon

Posted February 2, 2016

A federal judge ruled last Friday that New York-based yogurt maker Chobani must cease running ads claiming Dannon’s light Greek yogurt contains chlorine and is not safe to eat.

According to the New York Post, Dannon sent a cease-and-desist letter to Chobani after it launched ads attacking Dannon Light and Fit. The ads claim Chobani Simply 100 is the only 100-calorie Greek yogurt with zero preservatives.

One of the Chobani commercials is described as showing a young woman lounging by a pool chair and reaching for a cup of Dannon yogurt. A voiceover states, “Dannon Light & Fit Greek actually uses artificial sweeteners like sucralose. Sucralose? Why? That stuff has chlorine added to it!” The voiceover concludes, “Now, there’s Chobani Simply 100. It’s the only 100-calorie light yogurt sweetened naturally.”  

In his ruling, U.S. District Judge David Hurd concluded that Chobani "is free to continue to spread its message about the value of selecting natural ingredients," but may not disseminate false messages, including that Dannon's or General Mills's products are unsafe because they contain the sweetener sucralose and the preservative potassium sorbate, according to website mediapost.com.

Sucralose and potassium sorbate are generally recognized as safe by U.S. food regulators. Judge Hurd also wrote that "the balance of record evidence reflects that sucralose is an unusually well-studied compound repeatedly determined to be safe for ordinary consumption.”

Per mediapost.com, Hurd reasoned that courts "regularly recognize that even where 'no combination of words' found in the advertisement is untrue, the message conveyed by the advertisement may still be 'literally false' if its clear meaning, considered in context, is false.”

Chobani, for its part, sued Dannon in US District Court in Albany over the attempt to block its advertising. Chobani Chief Marketing and Brand Officer Peter McGuinness told AdAge, "This is not a marketing campaign, it's a mindset campaign, and it outlines the difference between using only natural ingredients versus artificial ingredients.”

Chobani later declared via twitter, “The conversation about how food is made in our country is just beginning.”

More information and clips of the ads are available here.

(Photo courtesy pixabay.com)

Washington Attorney General alleges intentional deception by Grocery Manufacturers Association

Posted January 28, 2016

Washington State Attorney General Bob Ferguson wants to penalize the Grocery Manufacturers Association. His office contends the group violated Washington's campaign finance laws during a 2013 campaign to defeat an initiative that would have required labeling genetically engineered foods. GMA is a Washington, D.C.-based trade association and was the largest single donor to the “No on 522” political committee.

Ferguson’s office sued the group in October 2013, alleging it collected over $11 million from its members. It further alleged that those funds were placed in a special account used to oppose Initiative 522, without disclosing the true source of the contributions.

The Attorney General filed a motion January 22 seeking summary judgment in the case, State v. Grocery Manufacturers Association. A GMA spokesman told the Associated Press they filed a complaint seeking to have the lawsuit dismissed, saying that the complaint is "an unconstitutional limitation on GMA's freedom to speak on behalf of its members."

In a statement released by his office, Attorney General Ferguson stated, “The crux of this case is transparency. GMA intentionally shielded from public scrutiny the true identity of the companies who donated millions of dollars to this campaign — it was a flagrant violation of state law.”

The initiative was defeated with 51 percent of the vote.

The Washington AG’s official news release is available here.

(Photo courtesy pixabay.com)

Campbell’s to begin disclosing GMO ingredients

Posted January 21, 2016

Campbell Soup Company will become the first major food company to begin disclosing the presence of genetically engineered ingredients like corn, soy and sugar beets in its products.

 

In a letter to the company's employees, posted on Campbell's website, Campbell's CEO Denise Morrison wrote that the company was responding to consumers, but also wanted to avoid conflicting demands for GMO labeling by individual states. "Printing a clear and simple statement on the label is the best solution for consumers and for Campbell," Morrison wrote.
 
Most of the food industry, along with the FDA, has opposed mandatory labeling of GMOs. The FDA contends there is no reason to require such labels because current GMO ingredients are identical, nutritionally, to conventional ingredients.

The food industry's opposition to GMO labels is partly based on fear that some people would avoid products with a GMO label. This assumption about consumer behavior has rarely been tested, and Campbell's may be betting that most consumers of Campbell's soups and Prego pasta sauces may not actually react to a GMO label. The company says that even if the government does not require GMO labels, it will label its products anyway.

Other food companies are printing labels to comply with a new labeling law in Vermont, which is a battleground over labeling that other states have watched closely. Beginning July 1, Vermont will require disclosure of genetically engineered ingredients, a measure opposed by most major food companies, which are seeking to supersede any state’s legislation with a voluntary federal solution.

Campbell's is also calling for federal action to mandate a uniform labeling system of foods that contain such ingredients, commonly known as GMO labeling. Other companies have reformulated a handful of products to replace such ingredients. General Mills now produces non-GMO Cheerios, and others have put labels on some products verifying that they contain no genetically engineered components.

But none have gone as far as Campbell, whose move recalls Whole Foods Markets, which announced it would require all products sold in its stores to have labels disclosing the presence of ingredients from genetically altered crops.

Other grocers like Kroger and Safeway are highlighting their selection of organic products, which by law cannot contain any genetically modified ingredients. The number of products verified by the Non-GMO Project, a nonprofit group that certifies foods that are free of ingredients from genetically engineered sources, is now in the tens of thousands.

More information is available here.

(Photo courtesy U of Arkansas Division of Agriculture)

Chipotle Served with Federal Grand Jury Subpoena

Posted January 7, 2016

On Wednesday, in a regulatory filing with the U.S. Securities & Exchange Commission (SEC), Chipotle Mexican Grille Inc. announced it was served with a criminal subpoena in December 2015. The subpoena is part of an investigation by the U.S. Food and Drug Administration's Office of Criminal Investigations. The restaurant chain must hand over documents pertaining to its restaurant in Simi Valley, California where a norovirus outbreak occurred in August 2015.  Chipotle also said in the filing that the incident was isolated and that it will cooperate fully with the federal investigation. Representatives for the U.S. Attorney’s office and the FDA did not comment.

The disclosure of the investigation comes as the company recovers from E. coli outbreaks in late October and November, which were followed by the sickening of customers at a restaurant in Boston in December. Those cases attracted significantly more national media attention than the California incident and Chipotle’s sales have dropped dramatically.

Sales fell almost 15 percent in the fourth quarter, marking the first decline for the company since it went public in 2006. Just last month, Chipotle retracted its forecast for 2016. In its regulatory filing Wednesday, the company said it could not predict the amount of any fines or penalties it may face in connection with the federal investigation.

Attempting to rehabilitate its image, Chipotle took out full-page ads apologizing to customers in newspapers around the country. It also vowed to increase food safety at its restaurants by changing cooking methods and further testing meat and produce.

Further information on the story is available here.  

(Photo courtesy Mary Hightower, U of Arkansas System Division of Agriculture)

Congress repeals COOL after WTO rulings

Posted January 6, 2016

After more than a decade battle, Congress repealed a Country of Origin Labeling Law (COOL) in December, according to a NBC News article available here. The Capital Press also published an article available here and the Chicago Tribune here.

Lawmakers said they had no choice but to get rid of the labels after the World Trade Organization repeatedly ruled against them. The WTO recently authorized Canada and Mexico, which had challenged the law, to begin more than $1 billion in economic retaliation against the United States.

The COOL repeal has been a growing topic in livestock circles for several years and more recently when the World Trade Organization (WTO) sanctioned $1 billion in retaliatory tariffs on U.S. exports by Canada and Mexico, according to Capital Press.

The dispute resulted in four WTO rulings against the U.S. that were found to be in violation of trade obligations by COOL’s discrimination against cattle and hogs imported from Canada and cattle from Mexico.

Representatives of industrial meatpacking and processing stated that they didn't want to stop Americans from knowing the origins of their meat, but claim that there are other ways to find out, according to the Chicago Tribune.

"If meat comes from another country direct to retail it must be labeled from that country," says Eric Mittenthal of the North American Meat Institute. "That has long been the law. Otherwise if it's processed in a U.S. facility under (Department of Agriculture Food Safety and Inspection Service) inspection it is marked as such. If companies decide to offer more detail they may, but we believe that should be voluntary so that consumers may be the ultimate judge of what they value."

The issue is expected to come up again in 2016, with Vermont set to require labeling on genetically modified food this summer, according to NBC News.

The day the spending bill passed, Vilsack said he would try to help Congress come up with a middle ground on labeling of engineered foods "in a way that doesn't create significant market disruption, while at the same time recognizing consumers' need to know and right to know basic information."

For more information on Country of Origin Labeling, please visit the National Agricultural Law Center’s website here.

California consumers can challenge organic food labels

Posted December 8, 2015

The Supreme Court ruled that consumers could file lawsuits under California law alleging food products are falsely labeled “organic,” according a CBS News article available here. Denver Post also published the article here and Fox News here.

The ruling overturned a lower court decision that barred such suits on the grounds that they were superseded by federal law.

Michelle Quesada alleged in a lawsuit that Herb Thyme Farms Inc., one of the nation’s largest herb producers, mixed organic and non-organic herbs then falsely labeled the product “organic.”

The company said in court documents it had been authorized by the U.S. Department of Agriculture to use the organic label. Allowing individual lawsuits challenging that designation would open the door to a patchwork of standards for the term “organic” that would defeat the goal of a national organic foods marketplace, the company said.

“If a lone consumer can second-guess the USDA’s certification, and a grower cannot rely on its federal authorization to use the term, the already high cost of production of such products will skyrocket, or more likely, there will be no organic products to enjoy,” Mark Kemple, an attorney for Herb Thyme Farms, wrote in a 2014 brief to the California Supreme Court.

For more information on food labeling, please visit the National Agricultural Law Center’s website here.

FDA released rules for fruit and vegetable producers

Posted November 16, 2015

To minimize the risk of serious adverse health consequences or death from consumption of contaminated produce, the Food and Drug Administration (FDA) has established science-based minimum standards for the safe growing, harvesting, packing and holding of produce grown for human consumption. 

The rule sets forth procedures, processes and practices that minimize the risk of serious adverse health consequences or death, including those reasonably necessary to prevent the introduction of known or reasonably foreseeable biological hazards into or onto produce and to provide reasonable assurances that the produce is not adulterated on account of such hazards. The rule is expected to reduce foodborne illness associated with the consumption of contaminated produce.

“FDA’s authority to conduct on-farm examinations and investigations for the purposes of the FD&C Act is not limited to for-cause situations and FDA is not required to give a farm prior notice of an inspection,” page 625.

For more information, Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human is available here.

House ag committee approves anti-GMO labeling law

Posted July 20, 2014

The House Agriculture Committee has approved a bill that would ban states from requiring the labeling of genetically engineered (GMO) foods, according to an Agri-Pulse article available here. Food Safety News also published an article available here and Reuters here.

The Safe and Affordable Food Labeling Act (HR 1599), which was approved on a voice vote in a 15-minute meeting, could be on the House floor as early as next week. Opponents of the bill on the committee, led by Rep. Jim McGovern, D-Mass., did not request a roll-call vote.

Companies that wished to tout the fact that their products do not contain GMOs, such as with a “GMO-Free” label, would still be able to do so if the bill passed. That process would operate similarly to the U.S. Department of Agriculture’s organic certification, according to Food Safety News.

Maine, Connecticut and Vermont have already passed laws that would require foods containing GMOs to be labeled, and GMO-labeling campaigns are underway in a number of other states.

Groups lobbying for mandatory GMO labeling said they are increasing their efforts to make sure that H.R. 1599, dubbed the Safe and Accurate Food Labeling Act, never becomes law, according to Reuters

"The real fight will be in the Senate," said Scott Faber, executive director of Just Label It, an advocacy group pushing for mandated labeling. "This is from over."

They say the bill is objectionable not only because it would overturn state GMO labeling laws, but because it also prevents state and local governments from regulating GMO crops, and would keep the U.S. Food and Drug Administration from creating a mandatory GMO labeling standard.

"Those states like mine, Maine, which has already passed a law that requires GMO labeling... we would be prohibited from doing it," said U.S. Rep Chellie Pingree, a GMO labeling supporter.

Opponents say mandatory labeling would raise food prices, confuse consumers without cause as GMOs are well regulated and are no less safe or nutritious than foods made with non-GMO ingredients.

As much as 80 percent of packaged foods in grocery stores contains GMO ingredients, according to the Grocery Manufacturers Association, which opposes GMO labeling, according to Food Safety News.

The House is expected to vote on H.R. 1599 later this month.

For more information on biotechnology, please visit the National Agricultural Law Center’s website here.

Federal judge rules Maui County GMO ban invalid

Posted July 2, 2015

A federal judge ruled that a Maui County ban on the cultivation of genetically engineered (GMO) crops is pre-empted by federal and state law and invalid, according to a Capital Press article available here. Honolulu Civil Beat also published an article available here and ABC News here.

The county’s ordinance exceeded the county’s authority, U.S. District Court Chief Judge Susan Oki Mollway said in her order.

The county, which is a major center for research on GMO crops, will abide by the decision, spokesman Rod Antone said. Monsanto Co. and Dow Chemical Co. unit Agrigenetics Inc. both have research farms in the county.

Mollway emphasized that the ruling is not a statement on whether genetically modified organisms are beneficial or detrimental, according to Honolulu Civil Beat.

“The court recognizes the importance of questions about whether GE activities and GMOs pose risks to human health, the environment, and the economy, and about how citizens may participate in democratic processes,” she said. “But any court is a reactive body that addresses matters before it rather than reaching out to grab hold of whatever matters may catch a judge’s fancy because the matters are interesting, important, or of great concern to many people.”

Mark Sheehan, one of five citizens who sponsored the ballot initiative, said his group would appeal the order. He expressed disappointment that Mollway ruled on what he called procedural issues instead of addressing the substance of their argument, according to Capital Press.

Monsanto said in a statement after the ruling that it welcomes "the opportunity to continue to have conversations" with the community, according to ABC News.

"We're listening and we've heard the concerns some people have about GMOs and today's farming practices. Our commitment to ongoing dialogue with our neighbors doesn't stop today," said John Purcell, vice president and Monsanto's lead for business and technology in Hawaii.

There has been little scientific evidence to prove that foods grown from engineered seeds are less safe than their conventional counterparts. But fears persist in Hawaii and elsewhere. In the islands, these concerns are compounded by worries about the companies' use of pesticides.

For more information on biotechnology, please visit the National Agricultural Law Center’s website here.

Stabenow proposes voluntary COOL

Posted June 25, 2015

Sen. Debbie Stabenow (D., Mich.) released a draft proposal which would remove beef and pork mandatory labeling provisions under Country of Origin Labeling (COOL) and put a completely voluntary Product of the U.S. label in its place, according to a Feedstuffs article available here. Agri-Pulse also published an article available here. A recent COOL blog post is available here.

Stabenow said she hopes her proposal offers a pathway forward on COOL following a May World Trade Organization (WTO) ruling which found the United States out of compliance again.

“This proposal offers a viable alternative and I look forward to discussing it at our hearing and with my colleagues in the Senate as we work to come to agreement on a bipartisan solution,” she said.

House Agriculture Mike Conaway, R-Texas, rejected Stabenow's proposal. He said he would continue to insist on full repeal of the law. A voluntary labeling program is OK but only as long as it is run by the industry and not subject to requirements of the law, according to Agri-Pulse.

“If there's teeth in it, if there's requirements in it … we're not going to do that. A voluntary program that's strictly run by the industries, that's fine with me,” he said. 

The North American Meat Institute continues to support his strategy. “The real opinions that count about this bill are those of the Canadian and Mexican governments,” said their president and CEO, Barry Carpenter. “Change that doesn't satisfy our trading partners or the WTO still results in billions in tariffs.”

For more information, a copy of the legislation is available here.

For more information on Country of Origin Labeling, please visit the National Agricultural Law Center’s website here.