Federal Court Dismisses Lawsuit Against High-Fructose Corn Syrup Makers and GMO Labeling Moves Forward

By Stefanie Jill Fogel, Mary B. Langowski, and Tiffani V. Williams

  • S.F. v. Archer-Daniels-Midland Co., No. 13-634, 2014 U.S. Dist. LEXIS 55195, [enhanced version available to lexis.com subscribers]. On April 21, the US District Court for the Western District of New York dismissed the case against Archer-Daniels-Midland Co., Cargill Inc. and other makers of high-fructose corn syrup (HFCS). On behalf of a 14-year-old girl diagnosed with diabetes, the mother alleged that the HFCS manufacturers and food companies negligently incorporated ingredients into their products that led to her daughter’s diagnosis. Chief Judge William Skretny found that even if the allegations proved true, there was little to suggest that the plaintiff could prove that consumption of certain foods containing HFCS was a substantial factor in causing Type 2 diabetes. The court also found that the claim of market-share liability was not viable, as there was no definitive link between the product and the harm.
  • Vermont moves forward with GMO labeling. On April 23, Vermont overcame its final hurdle in an effort to mandate the labeling of food with GMO ingredients. Vermont’s House delegation voted overwhelmingly – 114 to 30 – on the legislation, sending the measure to Governor Peter Shumlin for his signature. Governor Shumlin has already indicated his intention to sign the measure into law. Once signed, the law goes into effect on July 1, 2016. It will require that all GMO food for retail sale in the state be labeled, subject to a long list of exceptions.
  • Concerns over USDA’s organic program. On April 24, the principle authors of the Organic Foods Protection Act of 1990 (OFPA) – Representative Peter DeFazio (D-OR) and Senator Patrick Leahy (D-VT) – called on USDA Secretary Tom Vilsack to reverse recent policy changes that have raised concerns among strict followers of organic practices. In particular, Representative DeFazio and Senator Leahy disagree with the agency’s decision last fall to end the long-standing practice of requiring the review of synthetic materials used in organic products every five years in order to keep such materials on the list of approved substances. Representative DeFazio and Senator Leahy found most alarming the decision to make substantive policy changes to OFPA without a public notice and comment period.
  • FDA finalizes rule on nutrient content claims for omega-3 fatty acids. On April 25, the FDA published a final rule prohibiting certain nutrient content claims for foods that contain the omega-3 fatty acids docosahexaenoic acid (DHA), eicosapentaenoic acid (EPA) and alpha-linolenic acid (ALA). The rule finalizes the 2007 proposed rule without any substantive changes, prohibiting statements on food and dietary supplement labels that claim products are “high in” DHA, EPA or ALA, including similar language such as “rich in.” Pursuant to the Federal Food, Drug & Cosmetic Act, nutrient content claims such as “high in” are typically only allowed for nutrients for which a reference level has been set, and the FDA has not established nutrient levels for DHA, EPA, or ALA. The final rule will take effect on January 1, 2016.
  • GRAS challenge raising issues for FDA. The Center for Food Safety is challenging FDA’s Generally Recognized as Safe (GRAS) notification system for food additives, which has been operating under draft guidance since 1997. The Center is challenging the FDA’s authority to carry out the program without a final regulation. In addition to the GRAS program, there are other FDA programs operating under draft regulations, including programs governing over-the-counter drugs, sunscreens and other products. A ruling in favor of the Center could make it unlawful for the FDA to carry out such programs before finalizing agency regulations.
  • General Mills rethinks its online legal policy. General Mills has decided to return to its previous online legal policy following the addition of new language that some interpreted as meaning consumers would lose their right to bring claims against the company by purchasing a product or “liking” the company through social media. General Mills states that the revised policy was either mischaracterized or misunderstood and that consumers were never precluded from suing the company.
  • The organic industry weighs in on GMO labeling. The Organic Trade Association (OTA) – the largest group representing the organic food industry – is weighing in on the FDA’s decision to reissue its draft guidance on voluntary GMO labeling. In a recent House Appropriations Agriculture Subcommittee hearing, FDA Commissioner Margaret Hamburg indicated that the agency would be finalizing its 2001 guidance shortly. Commissioner Hamburg noted that the agency still finds no reason to require labeling of all bioengineered food. The OTA is urging the FDA to mandate GMO labeling and to use the term “GMO,” which is most familiar to organic consumers. In addition, as part of its final guidance, the OTA is encouraging the FDA to ensure that third-party organic certification is sufficient to support a claim that a product is not produced through genetic engineering.
  • Amicus brief filed in New York “Big Soda” case (New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al., No. 653584/12). Ten organizations, including the National Alliance for Hispanic Health, the American Academy of Pediatrics, and the Mount Sinai Health System, filed an amicus brief with the New York Court of Appeals in support of the city’s proposal to limit soda sizes to 16 ounces or less. The brief highlights the importance of addressing chronic diseases and obesity, particularly in minority communities. The court is expected to hear the case later this year. Lower appellate courts struck down the proposal last year.
  • Native American tribes contemplating junk food taxes. The Navajo Nation – the largest reservation in the country – is looking to impose a tax on junk food to address escalating rates of diabetes and obesity. Navajo lawmakers recently attempted to overturn Navajo President Ben Shelly’s veto of a junk food tax measure. Lawmakers approved a separate measure to eliminate a sales tax on fresh fruit and vegetables. While the lawmakers were unsuccessful in securing the votes necessary to overturn the tax on junk food, which would have expired at the end of 2018, advocacy efforts are ongoing to revise and reintroduce that proposal.
  • Major-city public health officials urge FDA to go further in regulating e-cigarettes. On May 2, in a letter to the US Food and Drug Administration, the chief health officials of 11 major US cities urged the FDA to impose stronger restrictions on e-cigarettes than it had proposed last month. The FDA recently proposed regulating e-cigarettes by restricting sales to minors, banning free samples and requiring health warnings, but it did not advocate limits on advertising, a ban on online sales or any restriction on the use of sweet flavorings that are thought to have special appeal to younger people. The executive director of the Boston Public Health Commission was quoted as saying that the FDA “should aggressively limit access to minors and not allow marketing to them or flavorings like bubble gum.”
  • Trade group announces recommended guidelines for counting “protein” in dietary supplements. On April 30, the Council for Responsible Nutrition, the dietary supplement industry’s leading trade association, released new recommended guidelines for calculating a product’s protein content on dietary supplement and functional food products labels. These are designed to permit consumers to accurately determine the amount of added protein in these products. The recommendations provide supplement manufacturers and marketers with a uniform method to calculate the protein content and give a specific scientific definition of “protein” as a substance that consists of a chain of amino acids connected by peptide bonds.
  • USDA will clarify its rules on handling of organic produce by food retailers. The Agriculture Department’s National Organic Program will soon begin work on a clarification of its existing guidance for the handling of organic products by retailers. This was a main takeaway from the meeting in San Antonio in late April of the National Organic Standard Board, the USDA’s top advisory panel on issues related to organic food. The panel deferred action on most of the items on its agenda but it did give the USDA the job of clarifying requirements for the handling of organic products by retailers. This issue has come to the fore in view of the rapid growth of farmers markets and online retailers, and recent actions by conventional retailers to stock more organic products.
  • Marijuana-infused food products may survive legislative scrutiny in Colorado. While the recreational use of marijuana is now legal in Colorado, some law enforcement and health advocates want the legislature to act quickly against the sale of marijuana-infused food. However, observers now believe that any changes in the regulation of so-called “edibles” will be slow and deliberate ones. Two bills dealing with “edibles” are stalled in the state Senate. About 50 food manufacturers have popped up in Colorado just to make food products containing marijuana, with names such as Healthy Foods, Natural Choice and Nature’s Garden, and opposition from those companies may mean that there will be no immediate change in the law. Any developments in Colorado would presumably influence Washington state, which has also legalized recreational use of marijuana, and any other states that follow suit.
  • Grocery manufacturers oppose Vermont bill on GM ingredients. The Grocery Manufacturers Association has announced its opposition to a Vermont bill that would require the mandatory labeling of foods containing genetically modified ingredients. The GMA termed the bill, which is expected to become law and take effect on July 1, 2016, “a step in the wrong direction for consumers” that “sets the nation on a costly and misguided path toward a 50-state patchwork of GMO labeling policies that will do nothing to advance the safety of consumers.” The GMA said that genetically modified foods are safe and will reduce crop prices by 15 to 30 percent. It said that a better approach is federal legislation that would require a label on genetically modified foods if the FDA has found that they involve a health or safety risk.

For more information about these developments and their effect on your business, please contact the above members of the Food and Beverage Sector team.

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