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)

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)

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.

Peanut executive sentenced to 28 years for salmonella outbreak

Posted September 23, 2015

The former owner of a Georgia peanut company was sentenced to 28 years in prison on Monday for his role in a salmonella outbreak that killed nine people and sickened hundreds, according to a Reuters article available here. CNN also published an article available here and USA Today here.

Stewart Parnell, former owner of Peanut Corporation of America, and his brother, Michael Parnell, a company food broker, were convicted on federal conspiracy charges in September 2014 for knowingly shipping salmonella-tainted peanuts to customers.

The contamination at the company's plant in Blakely, Georgia, led to one of the largest food recalls in U.S. history and forced the company into liquidation.

A federal judge handed Parnell a 28-year prison sentence, the harshest penalty in history for a corporate executive in a food poisoning outbreak. Parnell is 61 and unless he wins an appeal, he will have to serve out most of his term, according to CNN.

Michael Parnell received a 20-year sentence, and the plant's quality assurance manager, Mary Wilkerson, was given five years.

A federal jury convicted Parnell last September on 71 criminal counts, including conspiracy, obstruction of justice and introduction of adulterated food, following evidence that Parnell and the co-defendants knowingly shipped salmonella-tainted peanut butter from the Georgia facility to Kellogg’s and other customers — who in turn used it in products ranging from packaged crackers to pet food, according to USA Today.

Federal investigators who checked the Georgia facility found a leaky roof, roaches and evidence of rodents. They also discovered emails and records proving salmonella tainted food was shipped to customers.

Other peanut batches were never tested, but were still shipped with fake lab records stating salmonella screenings were negative, according to the prosecution evidence.

Additionally, the judge wrote that Parnell and Wilkerson should bear responsibility for just under $200 million in losses. Michael Parnell should bear responsibility for just under $50 million in losses, Sands ruled.

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

Federal prosecutors seeking life sentence for Parnell brothers

Posted July 27, 2015

Federal court officers have recommended a life sentence for a peanut company executive convicted of selling salmonella-tainted food, according to a CNBC article available here.

Stewart Parnell, former Peanut Corporation of America owner, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia.

Parnell, peanut broker Michael Parnell and former plant quality manager Mary Wilkerson were found guilty Sept. 19th on 71 counts, including conspiracy, obstruction of justice and introduction of adulterated food, according to USA Today.

The contamination was the most deadly and expensive contaminated food-borne disease outbreak in the country, according to the Center for Disease Control’s (CDC) findings. Nine people died and 700 were sickened after eating the tainted food.

Because the Parnell brothers are middle-aged, the multiple-count convictions could add up to the equivalent of life sentences. Wilkerson’s conviction carries a maximum term of 20 years. Federal sentencing guidelines, findings of the pre-sentence investigative reports and prosecution and defense recommendations will all contribute, according to Food Safety News.

Stewart and Michael Parnell were briefly taken into custody after the trial, but they have since been free on cash bonds of $150,000 and $100,000, respectively. Wilkerson has been free on unsecured bond since the indictment.

In their court filing, prosecutors stood by their numbers for victims injured and financial losses — and insisted they possibly understate the impact, according to CNBC.

"Life in prison, especially in a food case, it's frankly unprecedented," said Bill Marler, who has represented victims of food-borne illnesses for two decades. "But the case itself, on a factual basis, is unprecedented." 

The government brief released Thursday is available here. 

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

Justice Department: Food companies at risk for prosecution over outbreaks

Posted July 15, 2015

After several deadly outbreaks food, the Justice Department is warning food companies that they could face criminal and civil penalties if they poison their customers, according to a U.S. News article available here. MSN also posted an article available here and Mercury News here.

"We have made a priority holding individuals and companies responsible when they fail to live up to their obligations that they have to protect the safety of the food that all of of us eat," said Associate Attorney General Stuart Delery.

In a high-profile case last year, a federal court in Georgia found an executive for the Peanut Corporation of America guilty of conspiracy, obstruction of justice, wire fraud and other crimes after his company shipped out salmonella-tainted peanuts that sickened more than 700 and killed nine in 2008 and 2009.

Delery, the No. 3 official at the Justice Department, would not say whether the government has plans to pursue charges against Texas-based Blue Bell Creameries after listeria in the company's ice cream was linked to illnesses and three deaths. A Food and Drug Administration (FDA) investigation found that Blue Bell knew that it had listeria in one of its plants for almost two years prior to the recall, according to Mercury News.

"We're committed to staying on top of outbreaks and evaluating potential cases as the evidence warrants." Delery said of the Blue Bell investigation and other recent outbreaks.

Bill Marler, a food safety lawyer, says Justice's recent activity is especially notable because in many of the cases, company executives were not aware of the tainted food, but they were hit with criminal charges anyway, according to MSN.

"It's been very much of a sea change," said Marler. "Once you start down this road you have to decide whether you are going to do it all the time or selectively."

Delery notes the department has pursued some of these companies with laws that are not directly related to food safety, such as those prohibiting wire or mail fraud.

In his effort to warn food companies, Delery spoke to food manufacturers at a safety meeting in Dallas last month. He said the majority of American food is safe, but "even a tiny minority" can cause harm.

For more information on food safety, 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.

FDA Releasing Food Recall Draft Guidance

Posted May 14, 2015

The Food and Drug Administration (FDA) announced the availability of draft guidance for industry on the implementation of the mandatory food recall provisions of the FDA Food Safety Modernization Act (FSMA).

The guidance is in the form of Questions and Answers and provides answers to common questions that might arise about the mandatory recall provisions and FDA's plans for their implementation.

Electronic or written comments on the draft guidance should be submitted by July 6, 2015.

For more information, the Federal Register is available here.

COOL Not Economically Beneficial, USDA Study

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Posted May 6, 2015

Country-of-origin labeling (COOL) is not beneficial for American consumers, according to a Food Safety News article available here. Cattle Network also published an article available here and Journal Star here.

COOL does not provide “measurable economic benefits” and costs producers, packers, and retailers in the United States $2.6 billion a year for all covered commodities, USDA’s chief economist report.

The report was mandated by the 2014 Farm Bill and was created by a team of agricultural economists from Kansas State University and the University of Missouri.

“In terms of consumers, USDA’s regulatory impact analyses concluded that while there is evidence of consumer interest in COOL information, measurable economic benefits from mandatory COOL would be small,” according to the report. “USDA’s regulatory impact analyses also found little evidence that consumers are likely to increase their purchases of food items bearing U.S.-origin labels.”

The study estimated that implementation of the 2009 COOL law resulted in $405 million in economic welfare losses in the first year in the U.S. beef industry, according to Cattle Network.

COOL law was included in the 2002 farm bill, and it was amended in the 2008 farm bill and implemented in 2009. COOL has been the focus of a World Trade Organization (WTO) lawsuit for more than five years. Shortly after being implemented, Canada and Mexico established a case against the United States in November 2009. The WTO ruled that certain COOL requirements discriminate against foreign livestock and gave the United States a May 2013 deadline to comply with its findings. This report was issued a few weeks short before the WTO is expected to issue its final ruling on the matter.

WTO rulings have previously gone against the U.S. If the U.S. loses this last appeal, it’s possible that Congress will repeal COOL, according to Journal Star.

USDA did successfully defend the COOL regulations in U.S. courts.

Bill Bullard, CEO of the United Stockgrowers of America, recently told Congress COOL means that, “No longer can meat from animals born and/or raised in a foreign country be passed off to unsuspecting U.S. consumers as meat deserving of the U.S. farmers’ and ranchers’ reputation.”

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

McDonald's to Stop Sale of Chicken Treated with Human Antibiotics

Posted March 6, 2015

McDonald's plans to require chicken suppliers to stop using antibiotics in human medicine within the next two years, according to an ABC News article available here. The New York Times also published an article available here, USA Today here, and Reuters here.

The company says their suppliers will still be able to use an ionophores antibiotic that keeps chickens healthy, but it isn't used in humans. Later this year, McDonald's also plans to stop selling milk from cows treated with a particular artificial growth hormone.

The decision by one of the largest buyers of chicken in the United States is likely to have a significant impact on other restaurants that serve chicken, according to The New York Times.

The Centers for Disease Control and Prevention (CDC) has been expressing their concerns about antibiotic use in animal husbandry as more bacteria and pathogens have shown resistance to such drugs. In 2013, approximately two million Americans fell sick because of antibiotic-resistant infections and at least 23,000 die from those infections.

McDonald's has been under increasing pressure from customers and activists to improve the quality of its food. Chipotle and Panera already serve chicken raised without antibiotics, according to USA Today.

“Our customers want food that they feel great about eating all the way from the farm to the restaurant,” said Mike Andres, U.S. president of McDonald's, in a statement. “These moves take a step toward better delivering on those expectations.”

Tyson, the largest U.S. meat processor, said they supported McDonald's decision, and that their chicken operations have reduced the use of antibiotics that are effective in humans by more than 84 percent since 2011. The company expects to continue reductions, according to Reuters.

Two senators have also reintroduced legislation to prevent the use of antibiotics that are deemed high risk of abuse, according to an Ag Food and Law post available here.

For more information on antibiotic use in agriculture, an article from the Congressional Research Service is available here.

Regulators Approve GMO Apples, Resist Browning

Posted February 17, 2015

U.S. regulators have approved two genetically engineered apple varieties designed to resist browning, according to an Ag Professional article available here. The Des Moines Register also published an article available here and Reuters here.

The U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) approved the new apples that were developed by the Canadian biotech company Okanagan Specialty Fruits Inc., as “unlikely to pose a plant pest risk to agriculture.”

The apples, Arctic Granny and Arctic Golden, are identical to their conventional counterparts except that they will not turn brown.

Neal Carter, president and founder of Okanagan, said he is confident that apple growers and consumers will accept the apples, according to The Des Moines Register.

“It looks like an apple, tastes like an apple and grows like an apple,” said Carter. Critics “can say whatever they want but we got the evidence. It's an apple in every way.”

The Organic Consumers Association (OCA) petitioned the USDA to deny approval, and said the genetic changes that prevent browning could be harmful to human health, and pesticide levels on the apples could be excessive, according to Reuters.

The Food and Drug Administration, which has no mandatory review process for genetically engineered foods, is examining the new apples through a voluntary consultation with Okanagan.

Okanagan said its apples have undergone “rigorous review,” and are “likely the most tested apples on the planet.”

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

COOL Lawsuit Dismissed

Posted February 11, 2015

The U.S. District Court for the District of Columbia has dropped their U.S. country of origin labeling (COOL) case against the U.S. Department of Agriculture (USDA), according to a Feedstuffs article available here. The Minneapolis Star Tribune also published an article here and Farm Futures here.

American Meat Institute (AMI) et al. v. U.S. Department of Agriculture et al. was originally filed in July 2013 by domestic and international meatpackers and trade groups to stop the labeling law that requires a label identifying where the animal was born, raised, and slaughtered.

The meat groups stated that COOL violates the constitution by mandating speech without a public interest, and it creates unnecessary and costly burdens for producers and packers, according to Farm Futures.

The American Meat Institute, now known as the North American Meat Institute, which includes Minnesota-based Cargill and Hormel Foods, led the free speech lawsuit.

North American Meat Institute CEO Barry Carpenter issued the following statement:

“While we remain disappointed with the court’s ruling on country of origin labeling (COOL), we agree with the World Trade Organization’s assessment that the U.S. rule is out of compliance with its trade obligations to Canada and Mexico,” Carpenter said. “As (USDA) Secretary Tom Vilsack has said, a statutory fix is needed to bring the U.S. into compliance to avoid retaliatory tariffs and we’re committed to working with Congress to fix COOL once and for all.”

COOL supporters stated it provides additional information to inform customers’ buying decisions, according to Farm Futures.

“This is a clear and indisputable win for American consumers and producers, and it's a huge relief to know that common-sense labeling laws, like COOL, can prevail in court despite the deep pockets of the multinationals,” said National Farmers Union President Roger Johnson.

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

FDA Commissioner Hamburg Stepping Down

Posted February 6, 2015

Dr. Margaret Hamburg is stepping down as commissioner of the U.S. Food and Drug Administration (FDA) after almost six years, according to a Reuters article available here. The New York Times also published an article available here and NPR here.

Dr. Hamburg, one of the longest-serving FDA commissioners, has overseen public health initiatives ranging from tobacco control and food safety to personalized medicine and drug approvals. Her decision to step down was influenced by the heavy demands associated with the job and the long period of time she has held the position.

In 2009, she was nominated by President Obama and confirmed by the Senate, according to The New York Times.

“Six years in this job is really a lot,” she said. “When I took over, it was often described as an agency in crisis. I’ve been able to turn that around, to really improve morale and change the culture of the agency in some important ways. I hope that I’ve really made it a stronger and better place.”

Dr. Hamburg will step down at the end of March, and she has hired Dr. Robert Califf from Duke University as deputy commissioner for medical products and tobacco. FDA observers say Dr. Cliff a potential successor, according to NPR.

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

White House Budget Increase for Single Food Agency

Posted February 4, 2015

President Obama is seeking an increase fiscal 2016 to fund the proposed single food agency, according to a Meating Place article available here. Law 360 also published an article available here and Farm Futures here.

Lawmakers have proposed a bill that would establish a single food safety agency by uniting the oversight functions of the Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA).

The White House is requesting a budget increase of 9 percent to $4.9 million for the FDA to allocate more funding for the agency to implement its food safety overhaul, according to Law 360.

Vilsack explained currently there 15 agencies involved in food safety in the federal government and there "are probably 14 too many," focusing on the budget's goals of efficiency and efficacy in the food system, according to Farm Futures.

This cooperative effort would require Congressional action to provide the President with consolidation authority, which is something that hasn't been provided for more than 25 years.

The Safe Food Act of 2015 would create an independent food safety agency, rather than house it within Health and Human Services (HHS), as the White House is proposing, according to Meating Place.

“HHS is a massive organization. A new food safety agency would be lost among the other priorities of the department, and would likely not receive the recognition or resources necessary for it to be,” said Chris Waldrop, director of the Food Policy Institute at Consumer Federation of America.  

For more information on the Safe Food Act of 2015, please visit the National Agricultural law Center’s website here.

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

Lawmakers Introduce Single Food Agency Bill

Posted February 2, 2015

Lawmakers have proposed a bill that would establish a single food safety agency by uniting the oversight functions of the Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA), and other agencies, according to a Reuters article available here. The Meating Place also published an article available here and Food Safety News here.

Senator Richard Durbin and Representative Rosa DeLauro said that the bill, Safe Food Act of 2015, would create a single federal agency with an administrator directly appointed by the President.

The duo introduced similar legislation in 1999, 2004, 2005, and 2007, according to Meating Place.

Durbin and DeLauro referred to food safety as an issue of national security, according to Food Safety News.

“What the bill does is remedy the situation,” said DeLauro. “With a single agency, we believe our country will be able to have the ability to detect relatively minor problems before they become major outbreaks.”

The Safe Food Act of 2015 would “provide the Food Safety Administration with mandatory recall authority for unsafe food, require risk assessments and preventive control plans to reduce adulteration, authorize enforcement actions to strengthen contaminant performance standards, improve foreign food import inspections, and require full food traceability to better identify sources of outbreaks.”

DeLauro stated that the bill builds on the improvements made in FDA’s Food Safety Modernization Act (FSMA).

Each year approximately 48 million people, or 1 in 6 Americans, suffer from foodborne illness, and more than 100,000 individuals are hospitalized and thousands die, according to Reuters.

Currently a majority of food safety responsibility lies with the FDA, and the USDA oversees meat, poultry, and processed eggs.

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

USDA Approved New Monsanto GMO Seeds

Posted January 21, 2015

Monsanto has received approval from the U.S. Department of Agriculture (USDA) for new genetically modified cotton and soybean seeds, according to  an ABC News article available here. Capital Press also published the article here, and The Wall Street Journal also published an article available here and.

GMO seeds are used to decrease pest and weed damages and increase yields and herbicide tolerance. But many crops can develop a resistance to herbicides so companies must develop a new version.

The new soybean and cotton seeds are designed to tolerate glyphosate exposure as well as dicamba, according to The Wall Street Journal.

The U.S. Environmental Protection Agency (EPA) is “nearing completion of its concurrent review” of a new dicamba and glyphosate formulation.

Environmental and consumer groups opposing the new formulation have argued that stronger weed killers pose more of a threat to the public’s health.

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