ACLU sues Arkansas for “meat” labeling law

by Diana R. H. Winters

The ACLU, the Animal Legal Defense Fund, and the Good Food Institute are suing Arkansas on behalf of The Tofurky Company to challenge a new law that restricts producers of plant-based food products from using words like “meat,” “burger,” or “sausage” to label these items.  The complaint argues that the law restricts commercial speech, and thereby violates the First and Fourteenth Amendments, and the dormant Commerce Clause.  The law “creates consumer confusion where none existed before in order to impeded competition.”

The stated purpose of the Arkansas law is to “protect consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.”  Tofurky’s complaint states that there is actually no evidence that consumers are confused about plant-based meats, nor does the Arkansas law point to any such evidence.  Moreover, existing laws, both federal (FDCA, FMIA, PPIA, and FTCA) and state, prohibit misbranding and deceptive marketing.

The lawsuit asks for a declaration that the Arkansas law is unconstitutional and an injunction against its implementation.

Along with questions about state power, this case raises questions regarding the “reasonable” consumer.  Does a consumer buying a veggie burger think that burger contains meat?  Or that Tofurky deli slices made with “slow-smoked tender plant-based non-gmo ingredients,” are meat?  In most circumstances, the answer is no.  Consumers of plant-based meat products actively seek these items.  If we expect consumers to know that a “crunchberry” isn’t a real berry, and to have the wherewithal to check the nutrition facts label for the sugar content in a product labeled “healthy,” surely we can trust a consumer to understand that a veggie burger contains no animal meat.

An Ongoing Regulatory Failure – Antibiotics in Animal Feed

by Diana R. H. Winters

A few weeks back, the New York Times published an article about continuing publicity campaigns by drugmakers to sell antibiotics to farmers for use in healthy animals.  In “Warning of ‘Pig Zero’: One Drugmaker’s Push to Sell More Antibiotics,” Danny Hakim and Matt Richtel discuss the recent (and not-so-recent) regulatory attempts to curtail antibiotic use in animal feed and show how one drugmaker has worked to maneuver around these obstacles to continue selling massive amounts of antibiotics to farmers.

Particularly striking in this article is the explanation of how antibiotic overuse affects human health:

“The connection of overuse of antibiotics in livestock to human health takes two         paths: As bacteria develop defenses against drugs widely used in animals, those defense mechanisms can spread to other bacteria that infect humans; and, resistant germs are transmitted from livestock to humans — through undercooked meat, farm-animal feces seeping into waterways, waste lagoons that overflow after natural disasters like Hurricane Florence, or when farm workers and others come into contact with animals.”

And how this connection is misconstrued by pharmaceutical companies:

“Mr. Simmons of Elanco has long played down livestock’s role in spreading resistant microbes to humans.

‘The most serious pathogens are not related to antibiotics used in food animals,’ he said. ‘Of the 18 major antibiotic-resistant threats that the C.D.C. tracks, only two, campylobacter and nontyphoidal salmonella, are associated with animals.’

But such oft-repeated statements, made even in Elanco’s securities filings, refer only to food-borne strains like antibiotic-resistant salmonella that can be found in raw chicken, for example, while ignoring the myriad ways pathogens can be transferred.”

Also striking is the discussion of research linking the rise in C.Diff. infections, as well as in E. coli and MRSA infections, and the use of antibiotics in livestock:

“There is a growing body of research establishing links between Clostridium difficile, or C. diff, in livestock and humans, viewed by the C.D.C. as an urgent threat. Broad-spectrum antibiotics in livestock provide “a survival advantage to antibiotic-resistant C. difficile strains,” according to a 2018 study by Australian researchers. Similar studies exist for E. coli and methicillin-resistant Staphylococcus aureus, known as MRSA — the C.D.C. even lists different animals like cows, goats, sheep and deer that can pass E. coli to humans.”

Disturbing on many levels, the article highlights how federal attempts to regulate antibiotics, while laudable, have fallen short.

 

See our prior post on a previous N.Y. Times article on this issue here.

Resnick Center Partners with UN on Global Food Initiatives

UPDATE (June 26, 2019): Please see here for the FAO’s press release regarding this partnership: http://www.fao.org/partnerships/academia/news/news-article/en/c/1198206/ 

 

 

Reprinted from UCLA Law News and Events (https://law.ucla.edu/news-and-events/in-the-news/2019/06/resnick-center-partners-with-un-on-global-food-initiatives/)

The Resnick Center for Food Law and Policy at UCLA School of Law has entered into a partnership with the United Nations Food and Agriculture Organization (FAO) on a series of research and advisory initiatives to confront global food security, nutrition, safety and quality.

The parties signed a memorandum of understanding at an FAO event in Rome on June 10, where leaders in global food policy gathered for a series of talks on the future of food. Michael Roberts, executive director of the Resnick Center, attended and served as a featured participant in a roundtable discussion on academic perspectives of global nutrition policy.

The agreement establishes a working relationship between the Resnick Center and the UN, including an initial project involving food fraud that builds on recent research by UCLA Law scholars. Hilal Elver S.J.D. ’09, who serves as the Resnick Center’s global distinguished fellow and the UN’s Special Rapporteur on the Right to Food, was instrumental in building the partnership between the center and the FAO.

“FAO is glad to partner with UCLA, one of the most prestigious academic institutions around the world,” FAO director-general José Graziano da Silva said in a statement. “Promoting healthy food systems has become a top priority [in] sustainable development, and this cannot be done with [inadequate] regulation. … UCLA law school expertise, in particular on food law, will surely contribute to address this key challenge.”

The collaboration continues the close relationship between the Resnick Center and the FAO. Graziano da Silva visited UCLA Law in February 2019, where he emphasized that simply providing food to hungry people around the world is not enough. Rather, he said, serving healthy food should be a paramount concern.

“We need to reposition our food systems from feeding people to nourishing people,” Graziano da Silva told an audience of UCLA Law students and professionals in the field. “Obesity and overweight are growing faster than hunger. It is an epidemic. The right to healthy food should be a key dimension for zero hunger and for the right to food itself.”

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Food Law CLE at UCLA – June 6-7

The Resnick Center is collaborating with CLE International to present the fourth annual Food Law Conference at the UCLA Faculty Center on June 6 and 7, 2019.  This conference brings together an amazing group of practitioners, regulators, academics, and stakeholders to present on numerous important food law topics, including standards and food fraud, preemption, and class actions.  You can find the full brochure with a schedule of events here, and you can register here.

Please join us!

New Scholarship: The New Food Safety

by Diana Winters

Emily M. Broad Leib and Margot Pollans recently posted The New Food Safety, forthcoming in the California Law Review, on SSRN.  The article argues for a comprehensive definition of “food safety” that encompasses “acute ingestion-related illness” (narrow food safety), “whole-diet, cumulative ingestion-related risks that accrue over time” (intermediate food safety), and “risks that arise from food production or disposal” (broad food safety).  The articles discusses why our current divided regulatory approach is problematic, and may actually exacerbate food-related harms.  In addition to calling for an expanded definition of “food safety,” the article proposes better interagency coordination and the creation of a single Food System Safety agency.

This compelling work  is applicable outside of the context of food, and will appeal broadly to scholars of the regulatory space.

Food Law CLE at UCLA – June 6-7

The Resnick Center is collaborating with CLE International to present the fourth annual Food Law Conference at the UCLA Faculty Center on June 6 and 7, 2019.  This conference brings together an amazing group of practitioners, regulators, academics, and stakeholders to present on numerous important food law topics, including standards and food fraud, preemption, and class actions.  You can find the full brochure with a schedule of events here, and you can register here.

Please join us!

From The Economist: Death of the Calorie

by Diana R. H. Winters

“What we…know, however, suggests that counting calories is very crude and often misleading…. a  growing body of research shows that when different people consume the same meal, the impact on each person’s blood sugar and fat formation will vary according to their genes, lifestyles and unique mix of gut bacteria…[and] the amount of energy we absorb from food depends on how we prepare it..”                                                                    -Peter Wilson, “Death of the Calorie”

Today I taught a segment of a pre-written nutrition curriculum to my son’s fourth grade class on serving sizes.  Imagine my dismay when I picked up the script twenty minutes (oops) before I was to teach the class and found that it wanted me to teach the kids that serving sizes were recommended portions, not a reflection of what Americans actually eat (which they are, by law).  The fundamental lesson, however, contained some decent guidance–people should eat less protein (although the lesson didn’t recognize any protein but animal) and processed foods, and eat more fruits,vegetables, and other whole foods.  This simple prescription, also taught by Michael Pollan (“Eat food, not too much, mostly plants”), is more effective by far than teaching people to rely on serving sizes and calorie counting to eat healthy and maintain body weight.

This article in The Economist’s 1843 magazine on our misguided reliance on calories to measure our food intake addresses this concept, and is a fascinating and important read.

New Scholarship: Holding the Animal Agriculture Industry Accountable for Climate Change

by Diana R. H. Winters

UCLA Law 3L Amit Liran has published “Holding the Animal Agriculture Industry Accountable for Climate Change: Merits of a Public Nuisance Claim Under California and Federal Law,” in the Villanova Environmental Law Journal (Vol. 30, Issue 1 (2019)).  This paper develops arguments for a public nuisance claim under both California state and federal common law against companies within the animal agriculture industry for their role in climate change and assesses the validity of such arguments.

About coming to this topic, Liran writes:

“I was first inspired to write Holding the Animal Agriculture Industry Accountable for Climate Change: Merits of a Public Nuisance Claim Under California and Federal Law            while enrolled in the “Introduction to Food Law and Policy” course taught by Professor Michael T. Roberts, the founding Executive Director of the Resnick Center for Food Law and Policy at UCLA School of Law.  Class discussions regarding civil food law claims based on misrepresentations of nutritional facts made me consider potential claims against huge forces in the food industry that—motivated by profits—have continuously pushed long-standing misconceptions regarding the nutritional value of modern food staples.  This strategy boosted consumption of their products and thereby materially contributed to today’s most pressing exigency: climate change.  Based on parallel claims that have been brought against fossil fuel companies, I developed and wrote about potential litigation strategies against the most culpable of such forces.”

 

Enjoy!

 

Is Pizza Still a Vegetable?

by Stephanie Teuber – 2L, UCLA Law

 

Many K-12 students in Los Angeles, as well as throughout the U.S., rely on public schools for at least one meal each day. Although school lunch programs serve an important purpose, they are often left out of legal conversations. On February 27, with the support of a grant from the Semel Healthy Campus Initiative, the Food Law Society and Education Law Society at UCLA Law teamed up to host Is Pizza Still a Vegetable? What’s Next for School Lunch.

Through a panel conversation, moderated by Dr. Wendy Slusser, an Assistant Clinical Professor of Child Health Policy, Pediatrics, and Health Equity at the UCLA Geffen School of Medicine, students learned about the history of school lunch programs, their current state, and (of course) whether pizza qualifies as a vegetable.

Each panelist contributed a unique perspective to the conversation. Following Dr. Slusser’s historical overview of these programs and a short video, Diana Winters, Assistant Director of Scholarship at the Resnick Center for Food Law and Policy, provided background on the trajectory of school lunch programs under the Trump administration, and the role of the federal government in administering these programs. Ivy Marx, a Senior Nutrition Specialist with LAUSD, explained how school lunch programs are administered in Los Angeles, and voiced the challenges presented by both budget constraints and picky children. Paula Sirola, the Executive Director of Seeds to Plate, stressed the impact of nutrition education on a child’s overall well-being, and how Seeds to Plate’s interactive gardening program helps foster a more holistic learning experience. Cheryl Leahy, General Counsel at Compassion Over Killing (COK), explained COK’s animal-welfare focused approach to school lunch reform, articulating concerns regarding the role of industrial agriculture interests in school lunch policy, and highlighting the organization’s efforts to reduce meat consumption in schools through legal and policy advocacy.

Over 100 students RSVP’d for the panel, and feedback has been overwhelmingly positive. Law students appreciated that they were exposed to the diverse perspectives of the panelists, and found the conversation both lively and productive. As finals season approaches and meal-prep takes the backseat, the most reassuring news of the day was perhaps at the close of the event, when Ivy Marx answered the most obvious outstanding question: yes, pizza is still a vegetable.*

*LAUSD pizza has whole wheat crust and no added sugar.

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