Further Solutions to the Honey Fraud Problem

This is the fourth of four posts by students in the UCLA Law Food Law and Policy Clinic on honey adulteration, honey litigation, and potential policy solutions to the problem of honey fraud.

By Terra Duchene, Aris Prince, Victoria Russell, Candace Yamanishi*

This post outlines the actors who can make a significant impact to the honey fraud problem and suggests potential starting points for solutions.

Beekeepers like Chris Hiatt are desperate for a solution. Honey adulteration is a threat to the survival of U.S. bees and beekeepers, which in turn, is a threat to food growing in the U.S., since 1/3 of the food grown in the U.S. depends directly or indirectly on bees. Just as the bee is endangered, so too is the U.S. beekeeper. The livelihood of essential beekeepers, the well-being and survival of honeybees, and, ultimately, the success of crops that are essential to our agricultural system, are being severely endangered by the relatively unknown but extremely large-scale adulteration of honey. Ultimately, putting a stop to honey fraud is vital to our environment and those who dedicate their lives to cultivating it. We must end honey adulteration in all its forms. 

Continue reading “Further Solutions to the Honey Fraud Problem”

Legal Recourse for Self-Regulation in the Honey Industry

This is the third of four posts by students in the UCLA Law Food Law and Policy Clinic on honey adulteration, honey litigation, and potential policy solutions to the problem of honey fraud.

By Terra Duchene, Aris Prince, Victoria Russell, Candace Yamanishi*

The American honey industry has been aware of the honey fraud problem for a long time. This post outlines fraudulent conduct in the honey certification space and describes a new California lawsuit that tackles honey adulteration.

 In 2010, four North American honey packers and importers set up a certification program called True Source to guarantee the origin, safety, and purity of honey. Since the program’s creation, True Source participation has flourished. True Source representatives told the UCLA Food Law & Policy Clinic (“the Clinic”) that as of January 2021, 40% of honey sold in the USA and Canada is True Source Certified, and there are 820 participating companies: 22 packers, 23 importers, 95 exporters, and 680 beekeepers.

The True Source concept is simple. In theory, honey certified by the organization is regularly tested by third party laboratories for authenticity and is designed to allow honey to be tracked from the consumer, back through the supply chain, to the country of origin and the beekeeper who harvested the honey from the beehive. (True Source Standard; Complaint). The True Source participants are supposedly required to comply with specific standards (the “True Source Certified Standard”) to ensure the traceability and authenticity of honey at each stage in the supply chain.

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What is Adulteration?

This is the second of four posts by students in the UCLA Law Food Law and Policy Clinic on honey adulteration, honey litigation, and potential policy solutions to the problem of honey fraud.

By Terra Duchene, Aris Prince, Victoria Russell, Candace Yamanishi*

Honey is made when the nectar and sweet deposits from flowering plants are gathered, stored, and dehydrated in honeycomb by honeybees. By definition, honey is a pure, single ingredient natural substance free of other substances or sweeteners. Honey adulteration occurs when real honey is added to or altered in such a way that it modifies its natural composition and integrity.

Adulteration occurs in a variety of forms, the most common being dilution with cheap fillers, sugary syrups, or other additives. This dilution increases the sugar content as well as changes the color and texture of the honey. Some honey producers extract the honey from the honeycomb prematurely[R(1] , or even substitute the nectar usually used to feed honeybees with sugar water to increase honey production and enhance their honey’s sweetness. Other common forms of adulteration include super heating and ultrafiltration or “resin stripping,” which remove pollen and naturally occurring enzymes to “improve” taste and smell and prevent the crystallization that retailers and consumers often find unattractive. Pollen removal is also an effective way to obfuscate efforts to track honey by adding local pollen after removing the foreign source pollen so that adulterators can circumvent labeling laws. Honey blending is another non-obvious form of adulteration where different honeys are blended in varying amounts and often misrepresented as a single type of honey. According to Amina Harris, Director of the Honey and Pollination Center at the UC Davis Robert Mondavi Institute for Wine and Food Science, a honey that has been labeled “Orange Blossom Honey” may be composed of only 28% orange blossom so long as that is the highest percentage present. The other 73% can be composed of any random mixture of various types of honey.

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Honey Adulteration and the Precarity of the U.S. Beekeeper

This is the first of four posts by students in the UCLA Law Food Law and Policy Clinic on honey adulteration, honey litigation, and potential policy solutions to the problem of honey fraud.

By Terra Duchene, Aris Prince, Victoria Russell, Candace Yamanishi*

Honey litigation is in the news again. Like previous honey lawsuits such as the Honeygate scandal—in which honey fraudsters were arrested for selling fraudulent honey that passed through U.S. Customs with fraudulent country of origin documents—the honey lawsuit filed March 29, 2021, in United States District Court, Eastern District of California, is targeted at actors responsible for flooding the U.S. market with cheap adulterated honey. Unlike previous lawsuits, this lawsuit focuses on a different set of victims: U.S. beekeepers who have been overwhelmingly harmed by adulterated honey flooding into the North American market.

Numerous commercial beekeepers in the U.S. are sitting on millions of pounds of real honey that they cannot sell. Why? Because the market is flooded with cheap, adulterated honey from out of the country, and producers of real honey in the U.S. are forced to sell at a loss. The Food Law and Policy Clinic at UCLA, an experiential course that partners law students with local and regional non-profit organizations and community groups to advocate for food movements, was paired with lifelong American beekeeper Chris Hiatt. Hiatt is fighting for the survival of his second-generation family business, Hiatt Honey, which has been owned by five Hiatt brothers for over five decades. Hiatt advocates to keep commercial beekeepers in business by preventing the continued proliferation of adulterated honey and honey fraud in the U.S.

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Not labeled for retail sale, except during the coronavirus pandemic

By Daniel Pessar* (Guest Blogger)

This is the third in a series of occasional posts by Daniel Pessar on regulatory flexibility in the context of food law and the pandemic.

The novel coronavirus pandemic has led to health, economic, and political turmoil around the world. In response to this public health crisis, U.S. federal, state, and local governments have been seeking to contain the impact of the virus while minimizing the collateral economic impact. Although stay at home orders and social distancing rules have had the greatest impact on people, many laws, regulations, and rules have been suspended or relaxed in order to help individuals and organizations—especially those involved in the pandemic response—to be productive during these difficult times.

One agency relaxing regulatory measures is the U.S. Food and Drug Administration (FDA) which has been working to remove obstacles to the flow of essential goods throughout the economy. As supply chains have been disrupted and demand patterns have shifted, the FDA has worked to relax the enforcement of certain regulations which could slow the response of food manufacturers and distributers to the new food business landscape.

In March 2020, the FDA announced that it would relax the enforcement of certain labeling laws that are familiar to many shoppers who purchase packaged goods in bulk. These shoppers know that often the individual beverage containers or snack bags do not have the product’s nutrition information. Instead, they have a label which reads “This unit not labeled for individual sale” or some variation of that announcement. Labeling items within a multi-pack in this way gives manufacturers more flexibility in package aesthetics and design and can help a food business to better control the flow of products for retail sale. Retailers interested in selling these items individually would need to affix a compliant nutrition label on top of the manufacturer’s label to comply with federal law.

In addition to multi-unit packaged goods, FDA nutrition labeling regulations also provide exceptions for food served in most restaurants or in other establishments in which food is served for immediate human consumption (e.g., institutional food service establishments, such as schools, hospitals, and cafeterias; transportation carriers, such as trains and airplanes; bakeries, delicatessens, and retail confectionery stores where there are facilities for immediate consumption on the premises; food service vendors, such as lunch wagons, ice cream shops, mall cookie counters, vending machines, and sidewalk carts…)  21 CFR § 101.9(j)(2)(ii)

These exceptions do not give restaurants a blank check, however. Only food served for immediate human consumption may be served without the inclusion of the necessary nutrition information. Under normal circumstances, these regulations do not limit restaurants—they are in the business of serving food for immediate human consumption after all.

Yet all of the upheaval that has come with the coronavirus pandemic has turned this law into a costly obstacle to offloading excess ingredient inventory. Food establishments with extra meat, flour, or cheese—but fewer customers—might consider selling packages of supplies directly to customers in order to reduce the economic pressures they are facing. However, given that these supplies would not qualify as food for immediate human consumption, the restaurants would need to ensure that an appropriate label be designed and affixed to the food parcels. Further compounding this challenge is the fact that the large packages sent to the restaurants by manufacturers or distributers of food supplies often lack nutrition labeling as well—those companies qualify for a separate exception from nutrition labeling regulations (see 21 CFR § 101.9(j)(2)(v)).

Recognizing that this rule would hurt restaurants while reducing the amount of food being made available to consumers during the pandemic, the FDA stepped in to temporarily relax certain rules. In March 2020, The FDA issued a temporary policy to relax labeling requirements for restaurants seeking to sell these kinds of products. As long as the food was labeled with (1) statement of identity, (2) ingredient statement, (3) name and place of business of the food manufacturer, packer, or distributer, (4) net quantity of contents, and (5) allergen information, the FDA would not object to the product’s sale even if it lacked a Nutrition Facts label.

Other rules have not been suspended, however. Restaurants making nutrient content claims about these food products (“Low fat cheese” or “High fiber beans”) would face other labeling rules that have not been relaxed by the FDA’s temporary policy. In addition, the FDA guidance does not apply to any foods prepared by restaurants. Entrepreneurs interested in developing packaged foods to supplement their restaurant offerings during the pandemic will need to comply with the robust label requirements for packaged foods. But as long as the new guidance stays in effect, restaurants can more easily sell packaged foods—both perishable and non-perishable—from cooking oil and tomato sauce to snack packs and juice pouches.

As restaurants, bars, and bakeries see a dramatic slowdown in business, some are trying to capitalize on their supply chain to maintain some business activity. For example, Fort Defiance, a bar in the Red Hook section of Brooklyn, New York, now sells a range of food supplies online including cheese, tofu, and raw chicken.  The FDA’s new stance facilitates this flexibility.

*Daniel Pessar is a third-year student at Harvard Law School. Before law school, he worked in the real estate investment industry for six years. He is the author of three books and numerous articles. He can be contacted at dpessar@jd20.law.harvard.edu

Boosting shell egg supply during the pandemic

By Daniel Pessar* (Guest Blogger)

 

In response to the COVID-19 pandemic, countless government agencies at the federal, state, and local levels are working to relax certain rules to help industry operate and respond to the needs of the public. For example, the U.S. Food and Drug Administration has issued a host of temporary policies to facilitate increased production of hand sanitizer, sterilization of respirators, and increased availability of shell eggs for retail sale. This last effort impacts countless Americans and will be the focus of this post.

Just as the FDA has an interest in helping medical supplies manufacturers and users to have enough inventory on hand, it seeks to respond to the changes in supply and demand in food markets, such as the current trends in the market for shell eggs. Shell eggs are the eggs many of us purchase in supermarkets, as distinguished from the processed egg products—available in liquid, frozen, or dried form—sold to restaurants and prepared foods manufacturers. Because of the pandemic, there are more people buying more shell eggs and fewer people eating in restaurants. As a result, the egg industry asked the FDA to help make it easier for them to direct more eggs to meet shell egg demand, rather than being sent for further processing.

The Egg Safety Rule, codified in 21 CFR 118, requires egg producers to follow certain rules meant to reduce the risk of Salmonella Enteritidis (SE), a leading cause of foodborne illness in the United States. While the safety rules for shell egg producers are much stricter than the safety rules for processed egg product producers, the relaxed rules for processed eggs are only available if all of a producer’s eggs receive the relevant treatments. Under the regulations,

If all of your eggs that are produced at the particular farm receive a treatment as defined in 118.3, you must comply only with the refrigeration requirements in 118.4(e) for production of eggs on that farm and with the registration requirements in 118.11.

21 CFR 118.1(a)(2)

As a result, processed eggs producers shifting even ten percent of their supply to the shell egg market would result in significant compliance effort and cost for all eggs being produced.

The FDA recognized this and provided conditions under which SE risk could be mitigated in a satisfactory manner without triggering most of the Egg Safety Rule requirements that would normally be triggered, including certain time-sensitive testing and inspection requirements.

eggs

Photo credit: Michael Bußmann from Pixabay

While the FDA has demonstrated flexibility, its guidance is narrowly tailored. The temporary policy regarding the Egg Safety Rule is meant to remain in effect only for the duration of the public health emergency and to apply only to producers of processed egg products—not to existing shell egg producers. As well, the FDA’s guidance does not apply to poultry houses with laying hens over 45 weeks of age at the time the guidance was issued. This is because SE is most likely to be detected in poultry houses with laying hens between 40 and 45 weeks old. Mandatory testing done under the new guidance, to hens already 45 weeks old, have a higher chance of missing the SE threat.

But the relief is real. As supply chain managers across the economy scramble to adapt to the coronavirus upheaval, some have to reimagine their operations. Equipment, staff, and logistics issues can come together to present a daunting challenge, especially to small businesses. With its emergency guidance concerning the Egg Safety Rule, the FDA plays a small but important role in helping industry adapt. Egg product suppliers will now have an easier time meeting the current demand for shell eggs.

 

*Daniel Pessar is a third-year student at Harvard Law School. Before law school, he worked in the real estate investment industry for six years. He is the author of three books and numerous articles. He can be contacted at dpessar@jd20.law.harvard.edu.

Meat Production and Covid-19 – Shortages Coming?

by Diana R. H. Winters

One of the country’s largest pork processing facilities announced that it is closing indefinitely.  The Smithfields Foods, Inc. plant in Sioux Falls, South Dakota will close after almost 300 of its workers tested positive for coronavirus.  The plant employs 3700 workers and produces about four percent of the pork production in the United States.

Other major meat producers, including JBS USA and Tyson, have closed facilities after workers tested positive, and in some instances, died.

These closures illuminate significant worker safety problems at meat production plants.  Manufacturers have been slow to provide protective equipment to low-wage workers standing close together to process meat and have pressured employees to remain working even if sick.

Moreover, these closures are one of many Covid-19 food supply chain issues resulting from the shutdown, which also include the inability of food producers to repackage food meant for institutional or restaurant use for retail use.  The New York Times reported on the resulting massive food waste this past weekend.

All of the articles linked in this post can be found in the Resnick Center’s and the UCLA Law Library’s resource guide to Covid-19 and food law.  Here in the blog we will occasionally highlight important trends and stories we see emerging.  Please explore our guide, and forward relevant material for inclusion in the guide.

 

The Honey Wars

If you’ve ever tried to buy a jar of manuka honey, you know the price is anything but sweet.  This is because of the honey’s purported health and aesthetic benefits, which have caused its price to skyrocket.  The New York Times recently published an article about a dispute between New Zealand and Australia regarding when honey can be branded “manuka,” and by whom.  Find this fascinating read here.

 

For Your Meatless Monday Reading Pleasure

by Diana R. H. Winters

Recently there has been a lot of interest in plant-based meat substitutes and their potential role in reducing global meat consumption and the environmental impact of meat production.

This week’s Economist discussed how plant-based meat can reshape the market, and its environmental potential.  The article, under the headline of “Fake Moos“, explains, however, that companies marketing plant-based meat substitutes must radically increase their reach to make much of a difference.

In today’s New York Times, David Yaffe-Bellany discusses how this may happen in “The New Makers of Plant-Based Meat?  Big Meat Companies.”  This article explains that Tyson, Smithfield, Purdue, and other meat producers are moving into the meat-substitute space.  The oddest product being introduced?  A “blended” product introduced by Purdue and Tyson, which combines meat and vegetable protein.  Weird.

And last week, Tad Friend at The New Yorker profiled Impossible Burger, and its founder’s ambition to “wipe out all animal agriculture and deep-sea fishing by 2035.”

Why the sudden fascination with bleeding vegetable protein?  Perhaps it rings a hopeful note after last month’s bleak climate news, providing a way forward for individual action.  But first, we have to stop flying these burgers across the Atlantic…..

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.

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