Big Gulps are Back in NYC

Court Decision

On June 26, 2014, the New York Court of Appeals (that's its highest court) finally released its decision regarding former New York City Mayor Bloomberg's controversial soda ban. The decision puts an end outright to the ban, satisfying some, but the the chagrin of many public health advocates.

The court struck down the soda ban, enacted under the auspices of the rule making authority of the New York Department of Public Health, because the regulation exceeded the health department's regulatory authority. The reason why: the prohibition on soda size constituted lawmaking.

The ban disallowed the serving of sugary drinks in food service establishments in portions exceeding 16 ounces. Of note, the portion size limits did not apply to supermarkets and convenience stores for the simple reason that the health department lacked jurisdiction. 

After determining that the health department lacked authority to enact law, the court held that the soda size restrictions constituted lawmaking, and thus exceeded the authority of the department. The ban attempted "to resolve difficult social problems by making choices among competing ends." Comparing the ban to regulations on tobacco, the court held that because the soda ban required the weighing of purely policy questions, it was a legislative matter. Since legislative matters must be left to legislative bodies, the health department exceeded its authority.

Somewhat ironically, the court used fact that the department attempted to assuage the sugary beverage industry by not enacting an outright ban of all sodas against the health department, concluding that striking such a balance indicated the legislative nature of the regulation.

Neil Pederson, J.D. Expected 2015, William Mitchell College of Law. 

Photo Credit: http://www.morguefile.com/archive/display/4030

Fast Food Marketing and Childhood Obesity

STUDY

As noted by Edible Progress, a new study connects a child's ability to recognize brands selling processed foods high in fat and sugar (think fast food logos) with that child having a high Body Mass Index (BMI). In other words, children who who can recognize "junk food" brands are more likely to be obese.

To some this might seem like a relatively commonsense connection. Children who eat more fast food know more about that food. Children who eat more fast food also will tend to be more overweight than those who do not. Nevertheless, it is a significant finding in the context of marketing unhealthy food to children. Children are routinely exposed to advertisements for unhealthy food on television and in schools (although the latter might be changing because of new proposed regulations under the Healthy, Hunger Free Kids Act. The study's findings provide evidence that suggests such exposure could have a real impact on children's health.

The United States has no laws restricting advertisements aimed at children. To some this might seem like a matter of parental responsibility, but it is worth noting that, as of 2007, over 30 countries have laws in place that limit television advertisements aimed at children. According to Consumers International, Brazil recently banned all advertisements aimed at children, deeming them "abusive." (here's the text for those of you who can read Portugese).

Neil Pederson, J.D. Expected 2015, William Mitchell College of Law.

Photo Credit: http://www.morguefile.com/archive/display/156284

The Secret Ingredient is...Wood Pulp?

In the last day or so, The Los Angeles Times, Quartz, and the International Business Times have all noted that many foods, including fast-food items, include wood pulp among their listed ingredients.

According to the L.A Times, among the fast-food items that include wood pulp, or "cellulose," are McDonald's Fish Filets and Taco Bell's Beef  (The information is available on the companies' websites).

The FDA notes that cellulose is not digestible, but nevertheless recognizes many forms of it as "GRAS," or generally recognized as safe.


Neil Pederson, J.D. Expected 2015, William Mitchell College of Law.

Photo Credit: http://www.morguefile.com/archive/display/104063

Fun with Food Labels

 Kim Ode and Rick Sennott of the Minneapolis Star Tribune went grocery shopping with me last week.  Here is Kim's story from the Sunday Variety section:

Grocery shoppers face a growing array of percentages, vitamins, adjectives and health claims up and down the aisles. The information is emblazoned on the packaging if it’s something the producer wants to tout, or in the smallest typeface allowable if the facts aren’t so encouraging. 

Not that some shoppers even care. 

“A lot of people shop only by price and flavor,” said Donna Byrne, a professor of law at William Mitchell College of Law in St. Paul where she teaches food law. She’s not judging, really; for many, price has to be a consideration. 

 Read more 

Of course, I had to go buy five copies for my mother. DMB

Haagen-Dazs Ice-Cream Recall

RECALL

According to the Food and Drug Administration (FDA), Nestle USA, owner of Haagen-Dazs ice cream, has issued a recall. The reason for the recall is mismatched packaging. Some containers of ice cream labelled as "Chocolate Chocolate Chip Ice Cream" contain "Chocolate Peanut Butter Ice Cream."

The recall notice states that Nestle is recalling 10,000 packages in the Eastern U.S., including in the District of Columbia, Delaware, Florida, Maryland, North Carolina, New Jersey, New York, Pennsylvania, South Carolina, Virginia, and West Virginia.

A consumer reported the mislabeled product to Nestle.

Under the Food Allergen Labeling and Consumer Protection Act, peanuts are a "major food allergen" and must be included on a product's label.


Neil Pederson, J.D. Expected 2015, William Mitchell College of Law.


Photo Credit: http://www.morguefile.com/archive/#/?q=ice%20cream

EVENT: "Is the GRAS process broken?"

The Food and Drug Law Institute (FDLI), a non-profit based in Washington D.C., is hosting a conference: "Is the GRAS process broken?" The event is set for July 23, 2014 in Washington, D.C. FDLI describes the event as a forum for dialogue, where experts"will explore whether there are holes in the system and the efficacy of the GRAS determination procedures."

FDLI is seeking attorneys, regulatory affairs specialists, scientists, public health professionals, academics, and consultants to attend the event.

Teleconference is available.

"GRAS" is an acronym for "generally recognized as safe." The standard applies to FDA approvals of food substances, under sections 201(s) and 409 of the Food, Drug, and Cosmetics Act (FDCA). Food substances that meet the standard are not subject to premarket approval by the Food and Drug Administration (FDA).

Neil Pederson, J.D. expected 2015, William Mitchell College of Law

Photo Credit: http://morguefile.com/archive/#/?q=tall%20grass&sort=pop&photo_lib=morgueFile

What does "Natural" mean anyway?

The American Agricultural Law Association, on its Ag & Food Law Blog, recently wrote on the topic of "natural" labels on food:

"Consumer Reports National Research Center released a poll revealing that 59 percent of consumers check to see if they are buying “natural” products even though there is 'no federal or third-party verified label for the term....'"

Moreover, Consumer Reports indicated that more than 80 percent of consumers think that the labeling of food as natural should connote that the food is free of artificial ingredients, pesticides, and genetically modified organisms.

So far, the FDA has chosen not to exercise its authority to define "natural."

Consumer Reports is currently seeking signatures for a petition to the FDA requesting that the FDA prohibit the use of the term "natural"on food labels.

Neil Pederson, J.D expected 2015, William Mitchell College of Law.