Food Freedom: "Downer" animal treatment, National Meat Association v. Harris

Federal preemption is the legal issue here, but treatment of animals is the reason it matters.  Under the Federal Meat Inspection Act, it is illegal to sell meat from animals that were sick or that died other than by slaughter. (Title 21, U.S. Code, sec. 644.)  What this essentially means, is that "downed" animals have to be inspected to determine whether they're sick or just tired before they can be slaughtered and used for food.

The U.S. Supreme Court just heard arguments about a California law that would bar "the purchase, sale and butchering of animals that can’t walk and require[] slaughterhouses under the threat of fines and jail time to immediately kill nonambulatory animals," according to an AP article published in the Washington Post.

The legal issue is whether the federal law preempts this state law, which is stricter.  The case is National Meat Association v. Harris.  The District Court issued a preliminary injunction against enforcement of the law on the grounds that it was preempted.  The Ninth Circuit vacated the injunction.  The National Meat Association petitioned for cert, which the U.S. Supreme Court granted.  So the Supremes just heard arguments this week.

I haven't read all the briefs yet, but I intend to.  Preemption issues are more interesting than they seem at first.  (See my Findlaw article about labeling farmed salmon.) The freedom of a state to make its own laws is really what is at stake, and California has a history of passing laws that go beyond federal legislation.
 Some useful links:

Legal Information Institute summary (an excellent explanation of the issues and the arguments prepared by two law students)
9th Circuit opinion

Petitioner's Brief
Brief for non-state respondents ( several animal rights groups)
Brief for state respondent

Amicus brief: Chamber of Commerce of the United States

Amicus brief: Professors of Preemption (law professors specializing in these kinds of issues)

Amicus brief: swine veterinarians, pork producers, & farmers union (huh? the pig doctors are on the same side as the bacon makers?)

So why are the pig doctors on the same side as the bacon makers?  If downed pigs are euthanized immediately, verterinarians don't get to examine them while they're alive.  The argument is that it is easier to identify infectious diseases in live animals, and this helps veterinarians identify and stop infectious disease outbreaks.  I don't have enough information to know what I think of this argument. 

But I'm pretty sure we should not eat pigs anyway.

Starbucks will sell juice

Starbucks is going to start selling juice.  From the L.A. Times,

"The coffee king on Thursday finalized its $30-million purchase of San Bernardino-based Evolution Fresh Inc., an artisanal fruit and vegetable juice maker created by Jimmy Rosenberg, the founder of Naked Juice.

Starbucks said it would begin offering juices, made with a process called high-pressure pasteurization, from the company in stores." 

Personally, I don't much care.  I've decided to be frugal and only drink coffee and juice that I get out of my refrigerator (OJ from concentrate, for what it's worth, and cold process coffee from wherever).  But I'm curious about "high-pressure pasteurization."  So I looked it up.  Here's a fact sheet from Ohio State University Extension.  High pressure processing, as it suggests, subjects the food to really high pressure -- up to 87,000 pounds per square inch, according to the fact sheet.  And this is more than enough to squish the life out of any bacteria present in the food. 

Of course, it would tend to kill ALL bacteria, and probably squishes cells that are not separate organisms, but since it does not use heat, it doesn't "cook" the food.  The food still seems fresh.  It doesn't work with everything, of course.  from the Ohio State fact sheet:

"At the moment, HPP is being used in the United States, Europe, and Japan on a select variety of high-value foods either to extend shelf life or to improve food safety. Some products that are commercially produced using HPP are cooked ready-to-eat meats, avocado products (guacamole), tomato salsa, applesauce, orange juice, and oysters."

Oysters?

Food Freedom: Is SOY cruel and unusual punishment?

This is not about any particular individual's cooking; I just want to make that clear.  It seems some prisons use too much soy in their cooking for the preferences of some prisoners.  In at least two states, prisoners have sued, arguing that the soy-based meals constitute "cruel and unusual" punishment.

From Huffington Post:

Florida prisoner Eric Harris, 34, currently serving a life sentence for sexual battery on a child, has filed a lawsuit that claims serving soy-laden meals to inmates is a form of cruel and unusual punishment. According to the Orlando Sentinel, Harris claims that the meals of processed and blended soy foods "have caused painful gastrointestinal cramping" which threaten the health of Harris' thyroid and immune system.

In a similar case in Illinois, a District judge recently denied summary judgement. From Weston A. Price Foundation, which represents the plaintiffs:

WASHINGTON, DC. October 25, 2011.  Honorable Judge Harold Baker of the United States District Court for the central district of Illinois has ruled that litigation challenging the use of soy foods in Illinois prisons will go forward. In his September 9, 2011 ruling, Judge Baker denied motions by the State and Wexford Health Sources for a summary judgment in their favor, thus bringing the case closer to trial. The ruling emphasized the importance of scientific and medical testimony at the trial. . . .

. . . The lawsuit claims that feeding of soy-laden food constitutes cruel and unusual punishment in violation of the eighth amendment to the Constitution, as well as a denial of plaintiffs’ liberty in violation of their due process rights under the fourteenth amendment to the Constitution. 

I like soy foods.  I often add soynuts to my hot cereal.  My daughter pours soymilk on her cereal or uses it in her chai tea lattes.  And I would never eat an animal.  But the Weston A. Price folks are convinced soy is bad for us, and they're not the only ones.  I haven't done any research on soy, but it is one of the eight allergens that must be labeled under the Food Allergen Labeling and Consumer Protection Act of 2004.  If it's not cruel and unusual to feed a prisoner yucky food (e.g. nutraloaf), surely it is unacceptable to ignore individual food allergies . . .

Salmonella in dog treats?

The FDA is investigating the extent and types of salmonella in dog treats.  According to a Memorandum, dated October 24, 2011, during 2012 FDA will be collecting samples of dry dog treats -- um, cookies, milk bones, and all those chew sticks Maddie and Teva like so much.  This does not seem to be in response to any recent threat.

Nevertheless, if dog treats are contaminated with salmonella, dogs can get sick and so can their humans.  It's a good reminder to always wash hands after handling dog food (as well as human food).

Hat tip to Food Safety News.  I'm just reposting to get going on this blog.

Still Thirsty for Coke?

William Mitchell College of Law student Dan Johnson prepared this post

The Center for Science in the Public Interest ("CSPI") has petitioned the FDA to ban the "Caramel Coloring in Coke".  Here is their petition: http://cspinet.org/new/pdf/caramel-coloring-petition.pdf.

 

CSPI argues that additives that cause cancer have no place in the food supply.  The center breaks down the chemicals in the coloring and cites multiple studies (http://ntp.niehs.nih.gov/ntp/htdocs/ST_rpts/tox067.pdf), as evidence that the chemicals are cancer causing.  In addition, the State of California stating treats the coloring as a known carcinogen in that state (http://www.oehha.ca.gov/prop65/law/pdf_zip/010711_4MEInotice.pdf).  CSPI argues that it is the FDA's job to protect consumers, so the Center believes this is a change that must be made.

 

Armed with all of this information, the Center makes their case for the FDA.

 

Thanks, Dan!

 

Want to get deathly ill at a funeral? Go to Wyoming.

William Mitchell College of Law student, Courtney Marshak, prepared this post.

 

The Wyoming state Senate recently approved House 8 Bill, known as the Traditional Food Act, during its first debate on the floor.  If the Act becomes law, people will be allowed to prepare food for public events without regulations such as packaging, labeling, licensing and inspection requirements.  Currently, those who plan to cook food at home and serve at public events are not exempt from these food safety rules.  If the bill passes, food will be allowed to be cooked at home for traditional events such as funerals, weddings, fundraisers and picnics free of regulation when the food is for families or nonpaying guests.

This sounds like a bad idea and State Senator Fred Emerich, R-Cheyenne, agrees.  Emerich voted against the bill. He recognizes that if a problem developed, it would be difficult to trace a food source without inspections.  Despite the fact that the director of the Cheyenne-Laramie County Health Department did speak against the measure at a recent Senate committee hearing, it appears the bill is likely to pass.  The Traditional Food Act has already passed the House. If the Senate approves it two more times the bill will go to Governor Matt Mead for his signature. 

Food cooked at home should stay at home.  Once the food enters the public arena, the public has the right to expect that the food they consume will be safe, just as they would at a restaurant.  Just because they are not paying for the food doesn’t mean they should be subjected to potentially life threatening hazardous foods.  The government should do what they can to make our food more safe, not less safe.  Wyoming residents, BEWARE.  Potluck food is bad enough without the increased threat of E Coli.

 

Thanks, Courtney!

Cert denied in Tyson Farms case

William Mitchell College of Law student, Phil Zarko, prepared this post.

Recently, the Supreme Court denied certiorari and will not hear a case from a Tennessee poultry producer against Tyson Farms, Inc.  The Supreme Court did not say why they will not hear the case, although the issue was not about whether there were violations, but (according to the Ag Law blog) “whether an injury to competition must be pleaded and proved to establish liability for violation of the Packers and Stockyards Act, and also whether courts should have deferred to USDA decisions that a showing of injury is not required.”  Presumably that means that the plaintiff did not or could not show injury.

    In Terry v. Tyson Farms, Inc., the plaintiff poultry farmer filed an action against the poultry processing firm under the Agricultural Fair Practices Act (AFPA), alleging unlawful interference and discrimination based on his membership in a growers' association, and the Packers and Stockyards Act (PSA), alleging that the firm engaged in unfair, discriminatory, or deceptive practices and subjected him to undue or unreasonable prejudice or disadvantage.  The Court affirmed the dismissal of the suit by the District Court, holding that Terry failed to show on injury and therefore lacked standing to bring the case.

Thanks, Phil!

A new sort of condiment? What type of additive would you prefer on your burger or hot dog: bacteria or a viral mix?

William Mitchell College of Law student, Lisa McCormick, prepared this post.

While perusing some food blogs earlier this week, my attention was caught by a press release included on the US Food Safety blog, www.blog.usfoodsafety.com , concerning a new anti-Listeria product.  The US Food Safety Blog referred to the product Micocin^(R), a spray solution designed to control the growth of Listeria in packaged meat products.   Micocin^(R) was recently approved in Canada and granted GRAS status by the USDA providing for immediate use in both Canada and the US.  Micocin^(R) was developed from a strain of “naturally-occurring bacteria” Carnobacteria maltaromaticum.  In following an additional press release by Griffith Labs regarding Micocin^(R), I was particularly amused by the following:

“The Micocin bacteria culture is already being used in consumer food products and it has no effect on the flavour, texture or appearance of the products to which it is introduced, so consumers can be protected without the addition of extra chemicals or technical-sounding ingredients being added to the food label. “

It sounds as though we should feel “lucky” that we don’t have to be burdened by wondering what these “additives” are.  However, don’t get me wrong here, Listeriosis is a serious problem.  I just don’t know yet what I think about these additives because prior to reading this post, I didn’t know this was already occurring and used in the US.

Listeriosis is a serious infection with a significant mortality rate that is caused by eating food contaminated with the bacterium Listeria monocytogenes.  Controlling Listeria can be especially problematic in “ready to eat” foods found at deli counters, fast food establishments, etc.  Products affected can be ready to eat meats, poultry, dairy (including soft cheeses) and seafood.  

In the US, the FDA, USDA and CDC have made the prevention of Listeria the focus of several programs, prompting the research of development of innovative products or “food additives” to combat Listeriosis. In 2006, the FDA approved a product “LMP-102” consisting of 6 different viruses or “bacteriophages” that specifically target, infect and destroy Listeria monocytogenes.  The product is designed to be sprayed on ready to eat meats and poultry. 

Thanks, Lisa!

Minnesota Raw Milk Producer Back in Court

William Mitchell College of Law student Rebecca Coobs prepared this post.

On January 31, 2011, Minnesota dairy farmer Michael Hartmann appeared in a Sibley County courtroom for a Contempt of Court charge that was filed about one month after the court approved an embargo on his unpasteurized food products.  When Minnesota Department of Health officials went to Hartmann’s farm to exercise a condemnation order for the embargoed food, they discovered that the embargoed food had disappeared from the Hartmann Farm.  The food was embargoed in the summer of 2010 when Minnesota Health Department studies revealed Michael Hartmann’s unpasteurized milk and other products were to blame for 15 people falling ill with E. Coli and campylobacter infections.

Michael Hartmann has a history of regulation violations and with the most recent Contempt of Court charge, some are calling for criminal charges to be brought.  So far, criminal charges have not been filed against Hartmann.



More about the Hartmann case is available on the Winona Daily News website.

In addition, in September of 2010, Minnesota Senators Klobuchar and Franken cosponsored the Food Safety Accountability Act (Senate Bill No. 3767) that is currently pending on the Senate’s legislative calendar, to increase the penalty for a person who knowingly contaminates the food supply.  Such an act is currently a misdemeanor but the legislation would change the classification to a felony and penalize violators with a fine, imprisonment for not more than ten years, or both.

Thanks, Rebecca!

Post by William Mitchell College of Law student, Thomas Lauria

photo from freedigitalphotos.net

A recent study published online in the Journal of Epidemiology and Community Health analyzes the effects of a poor, or “processed,” diet on children’s IQs. 

The study analyzed data on almost 4000 children and found that children who were eating a poor diet (described as being high in fat and sugar)at age three had somewhat lower IQ's by the time they were eight and a half.  The children with this type of diet saw decreases in IQ from the time they were three until eight. 

Children with a “healthy diet” early on, or a lot of nutrient rich foods, saw slight increases in IQ by the time the children were older.  

Thanks, Thomas!

Kids don't care about calories on the menu

Post by William Mitchell College of Law student, Francis Chang

Reuters published an article online describing a recent study appearing in the International Journal of Obesity.  The study determined that children and adolescents noticed the calories posted on a menu, but that it didn’t affect the amount of calories ordered and consumed.   According to the newswire article,  the study found taste was actually the most important factor for children and teens, more than the amount of calories they were consuming.  This study was conducted in New York City, which was the first U.S. city to require fast food restaurants to post calorie information on their menus.

From Reuters:

The team gathered restaurant receipts and surveyed 427 parents and teenagers at fast-food restaurants both before and after mandatory labeling began in July 2008. . . .

[The study] found that after labeling began, 57% of New York teens surveyed said they noticed the calorie information and 9% said that the calorie information influenced their food choices. . . .

The study found that most teens underestimated the amount of calories they had purchased, “some by up to 466 calories.”

Digging deeper into the issue, I looked at the International Journal of Obesity study that was the source of information in the article.  The interesting thing about the study was that it was focused on restaurants located only in low-income areas of New York City. Furthermore, 90% of the subjects used in the study were from racial or ethnic minority groups.  Neither of these facts was mentioned in the article.   The fact that this study targeted low-income groups and that 90% of the study’s subjects were minorities seems like a very important factor that should have been mentioned. The article makes the study sound as if it applies to all kids and teens regardless of socioeconomic backgrounds, which may not be the case. 

In the end, it was an article that was misleading and disconcerting, since most people will use this newswire article as their source of knowledge instead of looking at the actual study conducted. 

Thanks, Francis!

Comfort Food and Depression Risk

Post by Jennifer Kalyuzhny (Jennifer is a Hamline University School of Law student participating in a food law seminar at William Mitchell College of Law)



photo from freedigitalphotos.net



On msnbc.com, a headline appearing in the section devoted to medical curiosities called The Body Odd declares, “Comfort food may spark a vicious cycle, study suggests.”  The author explains that a new study “shows that eating junk food is linked to depression.” 

However, this definitive language likely overstates the findings of the study.  For example, all data collected in the study relied on questionnaires sent out to participants twice a year who self-reported the levels of intake for various types of fats as well as clinical diagnoses of depression.  Such a questionnaire method cannot be completely accurate, as some participants may have forgotten their precise intake amounts in the previous six months or may misreport a diagnosis.  Furthermore, the researchers acknowledge that reverse causality may be a possibility, as “participants with sub-clinical depression at baseline might have changed their food habits because of their mood disorder.”  They also admit that although their findings do present a detrimental correlation between substances such as Trans fat and risk of depression, these finding need confirmation by further prospective studies and by trials. 

Thanks, Jennifer!

Oh honey, won’t you bee my Valentine??

Post by William Mitchell College of Law student, Katie Kelly



photo from shutterstock.com



As I was looking at the news online this week, I found an interesting BBC article about honey-bees.  Apparently, 20,000 of them simply dropped dead in their exhibit in a Canadian museum.  My first reaction was that it was probably related to the night custodian and some unfortunate hi-jinks. But no, all of the obvious causes were ruled out.  In the article, Colony Collapse Disorder was mentioned as a possible cause.  Although it also was quickly ruled out, it reminded me that, indeed, there was a phenomenon of disappearing bees in the last several years.  No one is sure what causes it; scientists seem fairly convinced that there are multiple causes. 

Whatever the reason, entire hives of bees suddenly leave the hive one day, never to return.   Don’t care?  Well, when you consider how much of our food is dependant upon pollination, you might want to think twice about our little striped friends. 

Thanks, Katie!

Salmonella Victims to Call for Criminal Charges Against Former Peanut Corp. CEO

Post by William Mitchell College of Law student, Abigail Tyson

Relatives of the Salmonella victims from the 2009 peanut outbreak are calling for criminal prosecution of Stewart Parnell.  After the outbreak occurred, emails surfaced in which then CEO of Peanut Corporation of America (PCA) admitted knowledge that his company shipped contaminated peanuts to distributers. At the hearing, Mr. Parnell refused to answer any questions, invoking his 5th Amendment rights.  Advocate Bill Marler, a representative of the victims, states that in all his years of “handling food safety cases, I’ve yet to see a circumstance that has so clearly warranted criminal prosecution as the corporate mishandling involved in the PCA outbreak.” Six family members of the victims spoke at a press conference urging for prosecution of Mr. Parnell.  The conference occurred concurrently with the Government Accountability Conference held at American University.

Thanks, Abigail!

THE ISSUE OF THE NOW-APPROVED GM ENOGEN CORN CROP

Post by William Mitchell College of Law student, Tony Larson

Just recently the USDA has approved GM corn that has a microbial gene which introduces the enzyme alpha amylase into the corn before harvesting.  This enzyme breaks down complex starch into simple sugars.  The purpose of this GM crop is to pre-start the ethanol processing.  Breaking down starch to sugars is the first step.

What is troubling, and which the NY Times correctly reveals, is that once a gene is introduced into the wild, its gene flow is relatively uncontrolled.  Major food companies should be extremely worried about this because such cross-pollination could start the breaking down of corn intended for human consumption.  We have seen how easily crops can cross-pollinate through the nuisance patent infringement of Monsanto’s Roundup Ready crops.  The Enogen growers claim that it will only be cultivated in areas only connected to other Enogen fields, but such a blanket statement seems unsatisfactory.

Thanks, Tony!

Botulism and recalls in Canada and the US

Food law seminar student Tracy Grundman-Reza came across a post on Neal Fortin's US Food Blog from September 2010 that raised a couple of interesting issues:

The first item I read on the US Food Blog was about a sauce that was recalled after it was found that it may have been contaminated with clostridium botulinum.  I found it interesting because normally when I hear about a recall it’s usually due to a salmonella or E. coli outbreak.  I went to the Canadian Food Inspection Agency’s website and read the original notice warning consumers not to eat the product and describing the recall.   

The recall process in Canada is a little different from the recall process in the US.  In Canada, all recalls are voluntary, but when a manufacturer does not recall a product that may pose a danger to the public, the Minister of Agriculture and Agri-Food can, under the Canadian Food Inspection Agency Act, order a manufacturer/company  to recall a product when it could be dangerous to the public’s health, animals, or plants.  

More information on clostridium botulinum is also available on the FDA’s website: http://www.fda.gov/Food/FoodSafety/FoodborneIllness/FoodborneIllnessFoodbornePathogensNaturalToxins/BadBugBook/ucm070000.htm

Thanks, Tracy!

Are Working Mothers Making Children Obese? -- post by Rachel Dougherty

Another William Mitchell student, Rachel Dougherty, also has her own blog, Menu In Motion.  It may be time to start a blogroll!

Rachel has an interesting post on a study of childhood BMI and the number of hours the mom works outside the home:

A recent study published in the journal Child Development suggests that children of working mothers are more likely to gain weight than children with stay-at-home mothers.  Google News is filled with headlines suggesting that working mothers are to blame for obese children, but is this actually the case?

more

Thanks, Rachel!

Lactation Nation -- post by Will Crain

William Mitchell College of Law student Will Crain has posted a discussion of a recent study of childhood obesity and the timing of introduction of solid food.  Will has his own blog, Corrective Lenses, so I'm not reposting the whole post.  The post begins:

Every couple of weeks it seems there is another news article about how we in America are making our children obese. On alternate weeks, we get stories about the benefits of prolonged breast feeding. It was only a matter of time before a story came along that combined both. This blog post, by Jennifer LaRue Huget, from the Washington Post’s online site, reports on a new study that finds a correlation between childhood obesity and weaning babies before the recommended 6 months. more

Thanks, Will!

Food Law Seminar Posts

Spring semester is well under way, and the students in Food Law and Policy Seminar at William Mitchell College of Law are busily writing blog posts. So here we go!  Thank you in advance to everyone who participates.

Just for kicks, try a Google search for "blogging" and click on images.  There you will find many cartoons.  I would post one here, but that would probably violate someone's copyright.  Instead, here's the USDA food pyramid from Mypyramid.gov: