Posts By Shook, Hardy & Bacon L.L.P.

The non-profit consumer organization Food & Water Watch has released a report, “Dairy 101,” that discusses how the dairy industry has moved from thousands of relatively small producers across the nation to fewer, industrial-scale facilities concentrated in a few states. According to the report, this development is not good for the environment or for cows, which “are crowded into high-density feedlots with no access to grass and milked in round-the-clock shifts,” and are also not good for consumers, who do not know where their dairy products come from and whether the cows have been treated with antibiotics or growth hormones. The report also contends that pricing formulas and decreasing government support have provided family farmers with less income, while increasing prices for consumers. The report concludes by recommending that (i) anti-competitive behavior in the dairy market be ended, (ii) dairy farmers be provided with a fair wage, (iii) industrial dairies be…

The Soil Association, a British environmental group dedicated to sustainable, organic farming, has released a report, titled “Land of the GM-Free? How the American public are starting to turn against GM food,” that contends American consumers, farmers and politicians are losing their enthusiasm for genetically modified (GM) crops. Thus, “it is not surprising that the GM industry has scaled up its efforts to find a new market in the EU.” The report specifically addresses how “genetically engineered bovine growth hormone” and GM crops such as rice, wheat and alfalfa are facing opposition from consumers and others in the United States in the form of lawsuits and regulatory pressures. According to the report, “The Irish Republic, Northern Ireland, Scotland and Wales are all committed to GM-free policies. This has left just the present English government ministers on an increasingly lonely and desperate pro-GM quest, as consumers in their main pro-GM ally,…

According to news sources, the United Nations released a report October 22, 2008, calling on China to overhaul its system of food-safety regulation. The World Health Organization’s top food-safety official claimed that the country’s recent tainted-milk scandal was a result of individuals who “exploited weaknesses” in the regulatory system, which is “dispersed” among too many agencies and governmental levels. The U.N. urged the government to streamline its laws, make them tougher and regulate food products from farm to fork. A local spokesperson said that the U.N. stood ready to work closely with Chinese officials on reforming the law. The report apparently urges the Chinese government to shift more responsibility to food companies by requiring them to institute risk-management programs that can be audited by government inspectors. Released just as the standing committee of the National People’s Congress was preparing to discuss the draft of a new food-safety law that will,…

Aurora Dairy Corp. and other defendants have filed motions to dismiss on preemption grounds in multidistrict litigation (MDL) filed on behalf of consumers who allege that the companies misled consumers by claiming their products are organic, when, in fact, they are not following organic standards and regulations. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., No. MDL 1907 (E.D. Mo.), motions filed October 17, 2008). According to the defendants, the plaintiffs’ state-law claims would have the effect of rewriting national regulations for organic food production. Asserting that it holds valid organic certifications from the U.S. Department of Agriculture, Aurora argues that the relief requested would “preclude Aurora from using the very seal that the USDA, through its duly-accredited certifying agents, has expressly authorized Aurora to use.” Co-lead counsel for plaintiffs was quoted as saying, “Aurora spends a lot of time arguing that plaintiffs are trying to regulate…

The EFSA Scientific Committee is seeking comments on a draft scientific opinion that addresses engineered nanomaterials (ENM) used in food and feed applications. Acknowledging the limitations of currently available methods, the draft concludes that “established international approaches” are “a suitable starting point for case-by-case risk assessment of ENMs,” but warns against extrapolating scientific data derived from conventional chemical use. “Possible risks arise because ENM have particular characteristics, due in part to their small size and high surface areas,” the committee stated in an October 17, 2008, press release. “There is limited information on absorption, distribution, metabolism, and excretion, as well as the toxicity of ENM.” Comments will be accepted through the EFSA website until December 1, 2008. See GMA Biotechnology Digest, October 20, 2008.

The Canadian government has reportedly declared that bisphenol A (or BPA) is a hazardous substance, and Health Canada will begin drafting regulations to prohibit the importation, sale and promotion of baby bottles made with the chemical. The agency’s scientists apparently contend that the primary exposure for newborns and infants is through the use of such baby bottles, particularly when they are heated, and from the chemical’s migration into infant formula from cans lined with the substance. While the levels of exposure are evidently below those posing a health risk, the government decided to take the action as a precaution, citing research showing that “low-level exposure to BPA, particularly at sensitive life cycle stages, may lead to permanent alterations in hormonal, developmental or reproductive capacity.” Health Canada will also apparently work with industry to reduce bisphenol A in the linings of infant formula cans. Responding to the regulatory initiative, the Grocery…

NIEHS and the National Toxicology Program (NTP) have published a request for information, seeking “input on a number of key research areas that have been identified in recent evaluations of bisphenol A (BPA).” Submissions should be made online by December 1, 2008. Among the research needs identified are (i) “Studies of the concentrations of BPA and metabolites in human blood, urine, breast milk, amniotic fluid, placenta and other tissues, particularly in infants and young children”; (ii) “More complete assessment of sources of human exposure to BPA”; (iii) “The potential for effects on the immune system”; (iv) “The potential for metabolic disruptions leading to obesity, diabetes, or other metabolic disease”; and (v) “The potential for disruptions to the male reproductive tract including effects on sperm quantity and quality.” The information collected will apparently be used to develop future research and testing programs and may appear in future reports. See Federal Register, October…

The FTC has appointed Acting Chief Administrative Law Judge D. Michael Chappell to oversee the antitrust hearing in the commission’s case against the 2007 merger of Whole Foods Market, Inc. and Wild Oats Markets, Inc. The administrative hearing is scheduled to begin February 17, 2009. FTC Commissioner J. Thomas Rosch presided over the scheduling conference in September 2008, and a news source indicated that Whole Foods objected to the possibility that he would be appointed to hear the matter. In its October 20 order, FTC notes that the FTC chair and commissioners, including Rosch, “are committed, subject to the bounds of reasonableness and fairness, to a just and expeditious resolution of any potential appeal from an Initial Decision filed by the Administrative Law Judge in this matter that may be taken to the full Commission.” The administrative proceedings are separate from collateral proceedings pursued in federal court. Further details about…

In an article appearing in the Journal of the American Medical Association, David Ludwig, M.D., and Marion Nestle, Ph.D, discuss the voluntary efforts that food corporations have undertaken to address the rising rates of obesity in the United States and then detail the counterproductive activities in which they allegedly continue to engage. David Ludwig & Marion Nestle, “Can the Food Industry Play a Constructive Role in the Obesity Epidemic?,” JAMA, October 14, 2008. According to the authors, food companies lobby against obesity-related public health campaigns and continue to market food of little nutritional quality to children. The article also cites research purportedly showing that the industry “has an especially insidious influence on the conduct of research and development of public health policy,” where industry-funded studies tend to reach industry favorable conclusions. While they recognize that the companies have an obligation to maximize their profits for the benefit of shareholders, Nestle and…

Celebrity chef Jamie Oliver, who gained renown with his cooking show “The Naked Chef,” has apparently launched an initiative designed to teach people how to cook in an effort to reduce the incidence of obesity in Great Britain. Starting in a city of 250,000 in northern England with one of the highest rates of obesity in the nation, Oliver’s “Pass it On” campaign will teach eight cooks 10 recipes; they must promise to teach two people who will teach two people and so on, until, in less than six months, the entire city will, in theory, be able to cook. Although the show is being aired only in the UK, a YouTube® clip of the first ten minutes of his opening television show about his new “Ministry of Food” is available for viewing. Oliver is apparently hoping that people who learn to cook easy, nutritious meals will be less likely…

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