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Food & Beverage Litigation Update Food & Beverage LITIGATION UPDATE Issue 217 • June 1, 2007 Table of Contents Legislation, Regulations and Standards [1] House Subcommittee Inserts Preemption Provision Into Farm Bill . .1 [2] FSIS to Discuss Upcoming Codex Alimentarius Meeting . .1 [3] FSIS Announces Open Meeting of National Advisory Committee on Microbiological Criteria for Foods . .2 [4] FDA Issues Perchlorate Exposure Estimates; Claims Most Levels Consumed in Foods Fall Below EPA Standard . .2 [5] FDA Publishes Interim Report on Melamine-Contaminated Animal Feed; FSIS Rules Pork and Poultry “Not Adulterated” . .2 [6] EU White Paper Calls for Obesity Strategy . .3 Litigation [7] USDA Plans to Appeal BSE Test Kit Case . .4 [8] Federal Court Allows Benzene Suit Against Soft Drink Makers to Proceed . .4 [9] Court Orders Pet Food Company to Cease Contacting Pet Owners . .5 [10] Judge Dismisses Claims in French Fry MDL Suit Against McDonald’s . .5 Other Developments [11] New Studies Suggests Sodium Benzoate Damages Living Cells . .5 Scientific/Technical Items [12] New Zealand Scientists Breed Crows That Produce Low-Fat Milk . .6 www.shb.com Food & Beverage LITIGATION UPDATE They contend that food-aid programs are wasteful Legislation, Regulations and and that ending crop subsidies presents a low risk of financial calamity. They also call for reform of the Standards Conservation Reserve Program that takes farmland out of use to advance conservation interests. On the 110th Congress other end of the spectrum, Food & Water Watch is calling for the farm bill to serve the interests of [1] House Subcommittee Inserts Preemption farmers and consumers, as opposed to “agribusiness Provision Into Farm Bill middlemen.” The organization is recommending The House Subcommittee on Livestock, Dairy legislation that would, among other matters, help and Poultry has reportedly approved a provision for farmers transition to organic production methods inclusion in the 2007 Farm Bill that would preempt and give consumers country of origin labeling with any state prohibitions against foods or agricultural respect to livestock. products deregulated by the U.S. Department of Agriculture. Viewed as a measure aimed at recently Department of Agriculture (USDA) adopted state laws restricting the planting of geneti- cally engineered crops, the language, according to [2] FSIS to Discuss Upcoming Codex critics, could also prohibit states from taking action Alimentarius Meeting on food contamination outbreaks. The passage USDA’s Food Safety and Inspection Service has apparently states, “no State or locality shall make announced a public meeting slated for June 5, any law prohibiting the use in commerce of an 2007, in Washington, D.C., to discuss U.S. positions article that the Secretary of Agriculture has on agenda items for the 30th Session of the Codex inspected and passed; or determined to be of Alimentarius Commission, which will convene July non-regulated status.” See Center for Food Safety 2-7 in Rome. Agenda items covered in the 30th Press Release, May 24, 2007. Session will include: (i) amendments to the proce- Meanwhile, groups ranging from the business- dural manual; (ii) proposed draft standards; (iii) friendly American Enterprise Institute to Food & revocation of existing Codex standards; and (iv) Water Watch, a Washington, D.C.-based consumer implementation of the FAO/WHO evaluation of the rights organization, have been weighing in on the Codex Alimentarius. Interested parties can find legislation. AEI recently released a series of papers additional information on the Codex Alimentarius from academics and trade group representatives Web site. opposing crop subsidies and land-use restrictions. FBLU FBLU 217 June 1, 2007 Page 2 [3] FSIS Announces Open Meeting of National people apparently consume it in their drinking Advisory Committee on Microbiological water at levels of 4 parts per billion. Levels in foods Criteria for Foods studied by the FDA ranged from a high of 92.4 ppb The National Advisory Committee on in greens to a low of 0.15 ppb in apples. Microbiological Criteria for Foods (NACMCF) The agency contends that even when exploratory has announced a public meeting for the full surveys are conducted in regions where water committee and subcommittees on June 4-8, 2007, sources are known to be contaminated with the in Washington, D.C. The committees will assess: chemical, the levels found in foods, such as fruits, (i) the cooking parameters for safe seafood; (ii) vegetables, fish, and grain products are not high the food safety importance of mycobacterium avium enough to pose a health risk to most people. It subspecies paratuberculosis; (iii) the most appro- estimated that most Americans ages 2 and older priate technologies for FSIS to adopt in performing consume 0.053 micrograms per kilogram of body routine and baseline microbiological analysis; and weight daily, which is lower than the 0.7 micro- (iv) the parameters for inoculated pack challenge grams per kilogram of body weight standard study protocols. NACMCF advises USDA, the adopted by the Environmental Protection Agency Centers for Disease Control and Prevention, and the in 2005. In 2006, EPA raised its standard for taking Departments of Commerce and Defense on public remedial action to 24.5 ppb. According to a scientist health issues related to food safety. A finalized with the Natural Resources Defense Council, the agenda will also be available on the FSIS Web site. EPA standard is not safe for vulnerable populations and the new FDA estimates for some food items “come perilously close to what EPA considers an unsafe level.” See The Washington Post, May 31, 2007. Food and Drug Administration [5] FDA Publishes Interim Report on [4] FDA Issues Perchlorate Exposure Estimates; Melamine-Contaminated Animal Feed; FSIS Claims Most Levels Consumed in Foods Fall Rules Pork and Poultry “Not Adulterated” Below EPA Standard FDA has published a report, titled Interim FDA has released its “Preliminary Estimation of Melamine and Melamine Analogues Risk Perchlorate Dietary Exposure,” which is based on Assessment, that describes the human health risks a study of 27 foods and beverages consumed by associated with consuming poultry, pork, fish, or three population groups — everyone ages 2 and eggs from animals fed salvaged pet food contami- older, children ages 2 to 5 and women of child- nated with melamine and cyanuric acid, ammelide bearing age (15 to 45). Perchlorate is used to make or ammeline. Prepared in collaboration with the rocket fuel and enters the food chain via contami- Food Safety Inspection Service (FSIS), the report nated water sources; it has purportedly been found concludes that the affected animals pose little or no to affect thyroid function. According to the National threat to human health, even when consumed in Academy of Sciences, the chemical has been large quantities. “The purpose of the safety/risk detected in 35 states, and more than 11 million assessment is to assist FDA and FSIS in the ongoing FBLU FBLU 217 June 1, 2007 Page 3 investigation of contaminated vegetable protein zens’ lives and safety as an important responsibility,” products imported from China that were mislabeled a Foreign Ministry spokesperson was quoted as as ‘wheat gluten’ and ‘rice protein concentrate,’” saying. See The Independent, May 25, 2007; FDA said. The agency will accept comments on the The Wall Street Journal, Reuters and China Daily, interim report until June 29, 2007. See Federal May 29, 2007. Register, May 30, 2007. In a related development, FSIS has determined that “pork and poultry products from all animals European Commission identified as having been fed animal feed containing contaminated pet food scraps are ‘not adulterated’ [6] EU White Paper Calls for Obesity Strategy and are thus eligible to receive the mark of inspec- Commenting that if the EU fails to act on obesity, tion.” FSIS based its assessment on FDA’s interim “today’s overweight children will be tomorrow’s heart report and testing conducted on tissue samples attack victims,” EU Health Commissioner Markos taken from hogs and poultry exposed to melamine- Kyprianou has released a white paper on nutrition contaminated feed. The agency has released all and obesity adopted by the European Commission on quarantined animals for use in human food and will May 30, 2007. The paper calls for public action that accept comments on its action until August 28, 2007. takes into account: (i) individuals are responsible for Meanwhile, Chinese officials have reportedly their lifestyles, “while recognizing the importance announced plans to develop a food recall system for and the influence of the environment on [their] unsafe or unapproved products. “All domestic and behavior”; (ii) “only a well-informed consumer is foreign food producers and distributors will be able to make rational decisions”; and (iii) optimal obliged to follow the system,” said Wu Jianping, responses will require an integration of different the director general of the General Administration policy areas in the public and private spheres. of Quality Supervision, Inspection and Quarantine. Strategies to combat obesity would include voluntary The effort to improve food regulation comes after approaches on the part of the food and beverage international allegations of plasticizer-tainted feed industry, with labeling initiatives, product reformula- ingredients and toxic solvent in toothpaste, in addi- tions and standards for youth advertising primary tion to domestic reports of substandard products among them. The commission will apparently decide from duck eggs enhanced with industrial dye to in 2010 whether such approaches are working. medicines laced with diethylene glycol. The Beijing Promoting the consumption of fruits and No. 1 Intermediate People’s Court has also vegetables and increased physical activity are also sentenced to death the former head of the State among the white paper’s recommendations. The EC Food and Drug Administration (SFDA) for accepting plans to establish monitoring programs on macro US$850,000 in alleged bribes from eight pharmaceu- and micro levels to determine the effectiveness of tical companies.
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