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The End of Partially-Hydrogenated Vegetable Oils?

After decades of use in food products in the United States, partially hydrogenated vegetable oils appear to be on their way out.  Yesterday, FDA announced a tentative decision rescinding the GRAS (generally recognized as safe) status for such oils, which it asserts is a consequence of the health impacts, namely heart disease, of trans fats contained in the oils.  The CDC estimates that a trans fat ban could prevent 7,000 deaths and 20,000 heart attacks each year.  For an interesting history of the use of partially hydrogenated vegetable oils, see this NPR report.  Industry does have an opportunity to submit scientific evidence supporting the safe use of partially hydrogenated vegetable oils, but many do not expect that to happen.

 

FDA Reports That 12% of Spice Imports Are Contaminated

What is in all of those little spice containers in the your kitchen?  According to the FDA, as recently reported by the New York  Times, about 12% of spice imports are contaminated with “insect parts, whole insects, rodent hairs, and other things.”  Nearly 7% of spices imported contained salmonella.   Under the Food Safety Modernization Act, FDA is looking at new rules to address food imported into the United States, including modifications to the foreign supplier verification program.  Recent changes to those proposed rules, however, are seen by many to weaken the program.  Those changes, which include eliminating the requirement for onsite audits and exemptions for importers doing less than $500,000 in business, would surely impact spice importers (as well as other food importers).

A Motion To Dismiss Victory Regarding “All Natural” Food Labeling Claims

October 30, 2013

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Food labeling class actions continue to plague food manufacturers and retailers, with the Northern District of California being the favored forum for these claims.  Indeed, in The New Lawsuit Ecosystem:  Trends, Targets and Players (Oct. 2013), the U.S. Chamber Institute for Legal Reform identified food labeling class actions brought by plaintiffs, public interest groups, and attorneys general as one of the primary emerging liability threats facing American businesses.  One of the favorite allegations of such claims centers on the use of “all natural” or similar words on food labels.  Very often, a plaintiff alleges that a product contains ingredients from genetically modified soybean or corn, so the product allegedly cannot be considered “natural.”  With California’s liberal consumer protection laws, these claims often survive motions to dismiss, with courts reasoning that plaintiffs adequately plead that reasonable consumers will read “all natural” labels and conclude that the product does not contain genetically

California Court Rules on Prop 65 Warnings for Certain Food Products Containing Lead

September 30, 2013

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Those doing business in California are certainly aware of Prop 65 (formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986), which requires warning labels on products containing chemicals known to cause cancer and/or reproductive toxicity.  Nearly thirty years of rulemaking and litigation over Prop 65 has created a many nuances in the law, such as the one recently addressed by a California state trial court in Environmental Law Foundation v. Beech-Nut Corp. et al., Cal. Super Ct., No. RG11 597384 (July 15, 2013).

The question presented in this case is whether food products that contain low levels of lead, which lead was asserted by defendants as naturally occurring, required warnings under Prop 65.  Implicated foods included packaged fruit products, fruit drinks, and baby foods.  The court determined that the low levels of lead identified in the litigation did not result in exposures that required Prop 65

Safeway Sued Over “100 Percent Natural” Waffles Containing Preservatives

September 27, 2013

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A California resident filed a class action lawsuit on September 18, 2013, against Safeway Inc., alleging that waffles advertised as “100 percent natural” contained a chemical preservative, sodium acid pyrophosphate. Affected products include “Open Nature 100 percent natural Multi-Grain Waffles” and “Open Nature 100 percent natural Homestyle Waffles.”  The class action suit, brought in the U.S. District Court for the Northern District of California (often referred to as the “Food Court”), asserts claims of common law fraud, negligent misrepresentation, breach of contract, and quasi contract/unjust enrichment. On behalf of a a subset class of California residents, the complaint asserts claims under the California False Advertising Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law, and common law theories of breach of express warranty. Plaintiffs are seeking injunctive relief and monetary damages.

Sodium acid pyrophosphate is a preservative used in food products, and is generally recognized as safe

FDA To Conduct Environmental Impact Statement on Draft Produce Rule

FDA announced today that it will conduct an environmental impact statement (EIS) on the draft Produce Safety Rule proposed in January 2013.    An EIS is required under the National Environmental Policy Act for certain government agency actions that may significantly affect the quality of the human environment.  The EIS is a tool used by the agency to tailor the specific action, such as rulemaking, to address environmental concerns.  FDA indicated that it is conducting the EIS “because it has received information through comments and its own analysis that an environmental analysis is needed.”  FDA is also commencing a scoping process to determine the scope of the environmental review.  Comments on the scope of review FDA should undertake are due November 15, 2013, the same day that comments on the substantive provisions of the draft Produce Safety Rule are due.  FDA has indicated that the EIS process is not anticipated

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