Search results: Complaint

Remember menu labeling?  The idea started in New York City in 2008.  Here is one of my early posts on it.  My point in mentioning this: if you care about such things, menu labeling is useful, fun, and effective if you pay attention to it.

Despite a lot of research suggesting otherwise, menu labeling must work.  How else to explain industry’s ferocious and unrelenting opposition to it?

The latest is a lawsuit filed by the Food Marketing Institute and the National Association of Convenience Stores against New York City, which announced that it plans to enforce the regulations it has had in effect for nine years—even though the FDA has delayed national implementation once again until 2018.

To get some idea of what fast-food places are upset about, it helps to check in with the American Pizza Community, the friendly-sounding, but actually highly aggressive trade association for fast-food pizza places.

Here, for example, is its congratulatory statement to the FDA for delaying compliance with the law for another year:

The American Pizza Community welcomes the important step by the Food and Drug Administration toward applying common sense to federal menu labeling regulations…The previous approach threatened to impose excessive burdens on thousands of small businesses without achieving meaningful improvements in educating consumers. The American Pizza Community commends the Administration’s decision to extend the compliance date to May 7, 2018 and its request to collect comments for reducing the regulatory burden and increasing flexibility in implementation methods.  We support menu labeling and look forward to working with policy makers to implement a permanent solution that provides consumers with information and enables small business owners to comply with flexibility while continuing to thrive and create jobs.

By “support,” the pizza folks mean the “Common Sense Nutrition Disclosure Act of 2017.”

Instead of requiring calories to be posted next to the menu item, this bill would allow nutrition information to be available “solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises.”

Also, “an establishment’s nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.

The pizza industry has the Wall Street Journal on its side.

The Food and Drug Administration can’t possibly fulfill all of the responsibilities it claims to have, and here’s one way the Trump Administration can set better priorities: Direct the agency to end its effort to inform Americans that pizza contains calories.

I guess the hope is that if they delay long enough, menu labeling will quietly disappear.

CSPI, however, has other ideas.  It filed a lawsuit to force the FDA to implement the regulations.

This lawsuit asserts that the delay of the menu labeling requirement—published without prior notice or an opportunity for comment, one day before the menu labeling rule was supposed to take effect—is illegal and must be vacated.  Since the regulated industry was ready to comply before the delay, it can promptly comply with the menu labeling rule once reinstated and, thus, begin to provide this important health information to the public without delay, according to the complaint.

Recall that menu labeling was authorized by Congress as part of the Affordable Care Act in 2010.  No wonder CSPI wants the rules implemented right away.

The ACA is still with us—so far.

Several food safety advocacy groups are suing the FDA to take responsibility for ensuring the safety of food additives.

Doesn’t the FDA already do this?  No, it does not.

As the press release puts it [with my emphasis in bold],

Federal law requires FDA to ensure that substances used in food are safe, taking into account consumers’ entire diet and all exposure to the chemical and similar chemicals. But any substance designated as “generally recognized as safe” (GRAS) by FDA or by a food or chemical company can bypass the rigorous pre-market review and approval process applied to food additives. The GRAS exemption was initially created to cover ingredients that are widely known to be safe, such as vegetable oil, but has been applied in recent practice to novel chemicals and is now a loophole that has swallowed the law.

Under pressure from industry, in 1997 and again in 2016, FDA adopted a practice that allows food and chemical manufacturers to decide for themselves, without notice to FDA or the public, that food chemicals are safe—even if the chemicals are new, not widely studied, and not widely accepted as safe .

I commented on the FDA’s 2016 ruling at the time.  Former FDA Commissioner David Kessler referred to this GRAS policy as a “joke,” noting that it allows the industry to decide whether its own products are safe.

I am particularly interested in this suit because I wrote a commentary on an article about conflicts of interest in GRAS determinations in 2013.   As I said about the article’s findings,

At present, manufacturers of all food additives are permitted to decide on their own whether a substance is GRAS for human consumption, unless the additive affects food color. Companies also can choose whether to even notify the agency about a new additive. In practice, many manufacturers do inform the FDA. But…about a thousand additives are believed to be in the food supply without the FDA’s knowledge…the lack of independent review in GRAS determinations raises serious questions about the public health implications of unregulated additives in the food supply, particularly the additives that the FDA does not even know about.

Let’s hope the lawsuit gets this situation fixed.

I was interested to read a discussion by PEER (Public Employees for Environmental Responsibility) of a report from USDA’s Inspector General on a survey of the research climate within the agency.

The USDA did the survey after

Dr. Jon Lundgren, one of USDA’s top entomologists represented by Public Employees for Environmental Responsibility (PEER), publicly complained of political suppression of research linking potent new insecticides pushed by agribusiness with declines in wild pollinators, such as monarch butterflies.

The Survey of USDA Scientists Regarding Scientific Integrity produced either good or bad news, depending on how you look at it.  The USDA says that the vast majority of scientists reported no problems; only 2%-3% reported problems:

• Most scientists have not had problems with scientific integrity in their research in recent years…29 scientists (2 percent) indicated that entities external to USDA had pressured them to alter their work and 42 scientists (3 percent) indicated a Department official had pressured them to omit or significantly alter their research findings for reasons other than technical merit.
• Of those scientists who felt pressure to alter their research (referenced in the previous bullet), most did not report the incident because of fear of retaliation, reprimand, and reprisal.

The Washington Post says:

Nearly 40 percent didn’t bother to take the survey…Of those who did, more than half said they didn’t know how to file a complaint and some said they didn’t do so because they feared retaliation.

PEER notes that 41% of the scientists asked to fill out the survey failed to do so.  Of those who did fill it out,

nearly one-tenth report their research findings have “been altered or suppressed for reasons other than technical merit.” However, not one filed a Scientific Integrity complaint. Most (60%) confess they did not know how to file a complaint….[and] A majority of respondents (51%) do not think that USDA strongly promotes scientific integrity or refused to venture an opinion.

PEER points out that

nearly three-quarters (74%) of the responding scientists say agency management flags certain research areas as “sensitive/controversial,” with climate change, pollinator health, and anti-microbial resistance as the leading hot button topics. As one scientist commented “subtle tampering is common: with interpretations on politically sensitive topics, whether and how we address a certain research question, how we interpret our findings for the public are all interfered with on occasion.”

The PEER document collection

• USDA scientists’ comments
• IG survey results
• The Lundgren case
• Weaknesses in USDA Scientific Integrity Policy
• How the USDA Scientific Integrity process works in practice
• Uncertain fate of scientific integrity under Trump

Addition

PEER and US Right to know have filed separate petitions to USDA to protect its researchers

Amy L. Best.  Fast Food Kids: French Fries, Lunch Lines, and Social Ties.  New York University Press, 2017.

This is an academic sociologist’s account of what and how kids eat in school, and why.  Amy Best, a professor at George Mason University, spent several years quietly observing kids eating at McDonald’s and Chipotle, and in cafeterias in a low- and high-income high school.  She also did countless interviews.

The result is a reality-based analysis of the strengths and weaknesses of school lunch programs, and how school cafeterias are used by kids as public spaces defined, as Best puts it, by racial segregation and educational and income inequalities.  She also has plenty to say about attempts to reform school meals, the role of “hypervigilant” parents, and the draw of fast food.

Of school food, she says:

Unlike family food, school food holds little if any sacred value; nor does it contain the allure of commercial foods…What is clear is that for some kids, school lunch will continue to be regarded with indifference (and in some cases open contempt).  That is the case because the food is school food.  In principle, kids find the relationship to public school objectionable, not the food itself (even though some school food really does warrant genuine complaint).  Boredom with food is also about boredom with school.

She argues for introducing critical food literacy into the school curriculum, meaning critical thinking about current food system issues.  This sounds to me like what Alice Waters has been trying to do–and is doing–through her Edible Schoolyard projects, and also like the work of the Center for Ecoliteracy.  Both call for issues related to school lunch to be part of the school’s educational mission.  Best does not mention either effort in her book, an unfortunate omission in an otherwise thoughtful account of a complicated and important topic.

I’m traveling and having a hard time keeping up with all the input on Sonny Perdue, the nominee for USDA secretary who doesn’t seem to be encountering much trouble from Congress.

Here’s what I’ve collected so far.

The New York Times summarizes Perdue’s ethics problems while governor of Georgia.  He held onto four farming operations and at least 13 ethics complaints were filed against him.

The Environmental Working Group says its investigations reveal that from 2003 to 2010, Perdue:

• Refused to put his businesses in a blind trust.
• Signed state tax legislation that gave him a $100,000 tax break on a land deal.
• Received gifts from lobbyists after signing a sweeping order to ban such gifts.
• Filled state agencies and boards with business partners and political donors.
• Allocated state funds to projects that benefited companies he created after his time in office.
• Took joy rides in state helicopters.

And from 1996 to 2004, Perdue received more than $278,000 in federal farm subsidies.

Civil Eats and MapLight say that Perdue does not like regulations: 

Emails obtained by MapLight suggest Perdue was more preoccupied by the potential for government regulation than the possibility of more sick children.

Here’s the paperwork he submitted for his congressional hearing.

Politico, which has been covering the nomination process closely, says that in Perdue’s congressional hearing,

Perdue “pledged that he would stand shoulder-to-shoulder with the Trump administration’s top trade negotiators to ensure that U.S. agriculture, which is extremely reliant on exports, doesn’t get shortchanged by trade shakeups or any of the new bilateral deals the president wants to pursue. He committed to fighting to protect key rural and farm programs from the administration’s proposed budget cuts and to working to make sure farmers have an adequate supply of foreign workers to harvest their crops despite the administration’s crackdown on undocumented immigrants,” the Pro Ag team added. Perdue also said he’s “absolutely committed” to addressing the struggles of America’s dairy farmers ahead of the 2018 farm bill.

Politico also commented on what Perdue said during his hearing:

“Agriculture is in my heart, and I look forward to fighting for the producers of America,” Perdue told the committee. “I will absolutely be an advocate and a fighter, where necessary.”

Perdue, who wore a tie with tractors on it and often drew on his experience of being raised on a farm in Georgia, pledged that he would stand shoulder-to-shoulder with the Trump administration’s top trade negotiators to ensure that U.S. agriculture, which is extremely reliant on exports, doesn’t get shortchanged by trade shakeups or any of the new bilateral deals the president wants to pursue. He committed to fighting to protect key rural and farm programs from the administration’s proposed budget cuts and to working to make sure farmers have an adequate supply of foreign workers to harvest their crops despite the administration’s crackdown on undocumented immigrants.

Politico also summarized some of the coverage

• Democrats in Georgia are hoping Democratic senators on Capitol Hill will bring up Perdue’s controversial role in a debate over state use of the Confederate battle flag. The Atlanta-Journal Constitution has it here.
• WSJ has focused on Perdue’s record on anti-poverty policies and what it could mean for food stamps here.
• Cosmopolitan (yes, Cosmopolitan) has rounded up 10 things to know about Perdue here.

Everyone expects his appointment to go through.

Addition: I somehow missed Ian Kullgren’s analysis in Politico a couple of weeks ago.  Worth a read

The Center for Science in the Public Interest sent out a press release yesterday to announce a lawsuit filed on behalf of the nonprofit Praxis Project.

The complaint says Coca-Cola and its trade association, the American Beverage Association (ABA), mislead the public when they trash the science linking sugary drinks to obesity, type 2 diabetes, and the like.

It cites the August 2015 account in the New York Times of Coca-Cola’s funding of the Global Energy Balance Network, which aimed to shift attention from poor diets as a cause of obesity to lack of physical exercise.  Coca-Cola spent $120 million on research from 2010 to 2015 that could cast doubt on evidence linking health risks to sugary drinks.

It also cites quotations from officials of Coca-Cola and the ABA and researchers they fund “making false and deceptive statements about sugar-sweetened drinks.”  For example:

• Coca-Cola’s senior vice president, Katie Bayne, claims that “[t]here is no scientific evidence that connects sugary beverages to obesity.
• “Simply put, it is wrong to say beverages cause disease,” the ABA stated in another release.
• One of the scientists funded by Coca-Cola, Dr. Steven Blair, stated that “there is really virtually no compelling evidence” that sugar drinks are linked to the obesity epidemic.

The complaint also charges that Coca-Cola paid dietitians to promote sugary drinks; it quotes one dietitian who suggested that an eight-ounce soda could be a healthy snack, like “packs of almonds.”

It will be interesting to see how this lawsuit fares.  Stay tuned.

Attorneys in California Minnesota, Georgia, and North Carolina have filed a class action lawsuit in California against the leading manufacturers and sellers of pet food: Mars, Nestlé (no relation) Purina, Hills, Petsmart, and several veterinary hospital chains owned by one or another of these companies.

Why?  Prescription pet foods cost more but are no different than any other kind of pet food.

As the complain puts it:

• Defendents’ prescription pet food contains no drug or other ingredient not also common in non-prescription pet food.
• Defendents’ marketing, labeling, and/or sale of prescription pet food is deceptive, collusive, and in violation of federal antitrust law and California consumer-protection law.
• Defendents are engaged in an anticompetitive conspiracy to market and sell pet food as prescription pet food to consumers at above-market prices that would not otherwise prevail in the absence of their collusive prescription-authorization requirement.

As Malden Nesheim and I explained in our book Feed Your Pet Right (which is really an analysis of the pet food industry), all compete-and-balanced pet foods must meet identical nutritional standards.

The only difference between the most expensive and cheapest commercial pet foods is in where the ingredients come from.  When writing our book, we could not find any research demonstrating that pets eating the most expensive commercial brands were any healthier than those eating the cheapest.

No pet food company would want to do research like that.   Much more and better research is needed.

The lawsuit charges that the companies are using prescriptions to raise the price of the products.

The complaint is interesting to read.

• Item 46 points out that prescription pet food does not follow FDA requirements for manufacture, does not appear in the FDA’s “green book” listing approved animal drugs, and is made from the same ingredients found in common pet foods.
• Item 53 points out that nobody would purchase prescription pet food at higher prices, “if not for the misleading marketing described herein.”

I will be watching this one with riveted interest.  Stay tuned.

This is one of FoodNavigator-USA’s special edition collections of articles on similar themes, in this case food labeling and lawsuits over labeling issues.  These are a quick way to get up to speed on what’s happening from a food industry perspective .  FoodNavigator introduces this collection:

Food and beverage companies have faced a tsunami of false advertising lawsuits over the past five years. But how big of an issue is this for the industry, who has been targeted, and what strategies are working, both for plaintiffs and defendants in these cases? In this special edition, we also look into labeling issues and trends, from healthy, Paleo and grass-fed claims to NuTek’s potassium salt petition.

• FOOD LITIGATION 101: Are you up to speed?  There have been hundreds of class action lawsuits directed against food and beverage companies in recent years over everything from evaporated cane juice to Non-GMO claims. But has the false advertising litigation trend peaked, and if not, what are the new areas of vulnerability for food companies? .. Read
• More farm-related claims to appear on pack, Innova Market Insights forecasts: Now that clean label has moved on from being a trend to becoming “the new rules of the game,” Innova Market Insights predicts more brands will rely on ‘farm to fork’ claims and bucolic imagery as a differentiator… Read
• Paleo certification requests have doubled annually, scheme embraced by ‘household names,’ says Paleo Foundation: Demand for Paleo-certified products are on the rise. But is the diet – and the certification scheme – based on sound science? We chat with Paleo’s critics and proponents to get the inside scoop… Read
• Dairy from cows fed GM feed is not ‘all-natural’, alleges lawsuit vs Dannon – but will it fly?  Has the FDA’s probe into ‘natural’ claims on food labels put a stop to the tidal wave of false advertising lawsuits engulfing food manufacturers? Not if a new complaint against Dannon is anything to go by, which also delves into the thorny issue of GMOs, another area currently being scrutinized by regulators. .. Read
• Future of Nutrition Facts, menu labeling & food safety are unclear under Trump, CSPI says: While President-elect Trump’s position on food policy is relatively unclear still, changes to the exhaustively researched and intensely debated Nutrition Facts label, menu labeling rule and food safety regulations could all be on the chopping block under the new administration, warns a top nutrition policy expert… Read
• Comments in FDA docket reveals consumers’ shifting perceptions of ‘healthy’: If the FDA’s decision to wade into the ‘natural’ debate seemed like an act of sadomasochism, its decision to re-examine the criteria underpinning ‘healthy’ claims on food labels looks set to be equally painful, judging by the first wave of public comments filed in the docket… Read
• FDA hints at how conventional foods can make structure/function claims: For the first time, FDA weighs in on what marketers must have on hand to support claims about conventional foods’ direct impact on consumers’ bodies. .. Read
• Soup-To-Nuts Podcast:The rise & future potential of grass fed claims: Grass-fed claims on products are a beacon for consumers who are health-conscious, want minimally processed food and care about animal welfare, and as such manufacturers increasingly are using them on products across categories and channels to drive up sales sharply… Listen now
• ProTings closes $1.2m financing round, changes name to Protes after spat with Original Tings: Brooklyn-based pea protein chip pioneer Proformance Foods has closed a $1.2m financing round led by a leading CPG company, and changed its brand name from ProTings to Protes following a trademark dispute with B&G Foods, which owns the Original Tings brand… Read
• Vox Pop: Consumers had this to say about GMO labeling…On the heels of President Barack Obama signing into law a federal bill requiring the disclosure of genetically modified organisms (GMOs) on packaged food and beverage products, we at Beverage Daily and FoodNavigator-USA asked consumers at a downtown Chicago farmers market what they thought of GMOs… Watch now
• Are ‘GMO-free’ (as opposed to ‘non-GMO’) claims legally defensible? As the Non-GMO Project states on its website, ‘GMO-free’ claims are “not legally or scientifically defensible due to limitations of testing methodology” coupled with cross-contamination risks. In future, however, that could change as testing methods become more sophisticated, predicts Clear Labs, a Californian start-up which recently hit the headlines after identifying human and rat DNA in hamburgers [albeit within safe parameters]… Read
• Label Insight: Your SmartLabel landing pages could become more important than your website or facebook pages: While the SmartLabel initiative has been dismissed by some as an elaborate conspiracy by big food companies to avoid mandatory on-pack GMO labeling statements, it will ultimately have far broader significance – and potentially a huge impact on how consumers view all food and beverage products – predicts product data and image platform Label Insight… Read
• House approves federal GMO labeling bill that nullifies Vermont law: The US House of Representatives has voted to pass a federal GMO labeling bill (306:117 votes) that would pre-empt and nullify all state-led GMO labeling laws including the one that has just come into effect in Vermont. .. Read
• Hampton Creek to settle worker classification lawsuit: Just Mayo maker Hampton Creek – one of a growing number of food companies sued for allegedly misclassifying workers as independent contractors as opposed to employees – is settling its case in order to avoid the hassle and expense of protracted litigation, court documents show… Read
• Kellogg, Post & General Mills urge courts to toss ‘meritless’ sugar lawsuits: Kellogg, General Mills and Post Foods have urged the courts to ditch high-profile lawsuits over the sugar content in their cereals, on the grounds that their claims are pre-empted by federal law and that no reasonable consumer would find their labels to be false or misleading… Read
• Dole Foods 9th Circuit ruling reignites all-natural lawsuit, ’emboldens plaintiff’s bar’: The Ninth Circuit Court of Appeals has reversed (in part) a lower court’s ruling that Dole Foods’ ‘all natural fruit’ labeling likely isn’t deceptive, resurrecting a four-year-old lawsuit, and giving fresh ammunition to plaintiff’s attorneys pursuing ‘all-natural’ cases… Read
• Parties clash over Welch’s ‘made with real fruit’ fruit snack label claims: Reasonable consumers may well be misled by the packaging of Welch’s fruit snacks, a magistrate judge has concluded, prompting a lengthy rebuttal from the defendants in court documents filed this month. .. Read
• Shoppers aren’t confused by our labels, Chobani tells court: ‘Plaintiffs count on a consumer who is a veritable fool’: A false advertising lawsuit alleging that Chobani’s labels are confusing and deceptive, paints American consumers as credulous fools unable to apply common sense when they go shopping, argues the yogurt maker in court documents urging the judge to toss the case… Read
• GMA to FDA: Sodium reduction guidance must be re-worded or industry will face a tidal wave of ‘frivolous litigation’: Two years isn’t enough time for food manufacturers to make the kind of reductions in sodium that the FDA is asking for, says the Grocery Manufacturers Association (GMA), which also urges the agency to tweak the wording of its guidance in order to avoid “a wave of frivolous litigation.”.. Read
• American Bakers Association backs ‘potassium salt’ petition: It sounds more clean label: The American Bakers Association (ABA) has joined the CSPI, Unilever, and other food manufacturers in voicing its support for a citizen’s petition asking the FDA to permit ‘potassium salt’ as an alternate name for potassium chloride on food labels, while the Salt Institute remains resolutely opposed… Read