Category: Food litigation

The Poisoning of the Gerber Generation:

How Public Nuisance Law Could Address Heavy Metals in Baby Food in the Face of Regulatory Failure

by Lillian Matchett*

A cheerful jingle plays as beaming babies flash across a white background.  These children are the “Gerber Generation,” the voiceover tells you, and they have some big news to share: the nutrition they get in their first five years of life can affect their health forever.   “Think about that,” they say.

Gerber launched its Gerber Generation campaign in 2010 in the face of increased attention on childhood obesity, focusing on the health and nutritional needs of young children at a vital point in their development.  Gerber was right: what a child consumes in the first few years of their life is critically important, but as it turned out, there were other substances in at least some of the Gerber Generation’s food that could have a profound and lasting impact on children’s health.  In 2021, Gerber was one of several companies exposed for selling baby food containing concerning levels of heavy metals—toxins which, even in small amounts, can cause severe and irreversible cognitive impairment and physical illness in young children.

In 2021, a congressional subcommittee issued two reports finding high levels of heavy metals—lead, arsenic, cadmium, and mercury—in commercial baby foods from seven major manufacturers.  Heavy metals were present in baby foods from all companies, often at concentrations many times than that allowed under existing regulations for other food products.  The reports also illuminated failures of industry self-regulation, revealing that companies largely do not test their final products and often do not adhere to their own internal standards. 

Predictably, a deluge of litigation followed the release of the Congressional Reports.  Despite well-documented findings of high heavy metal levels in baby food and the known effects those substances have on children, lawsuits have thus far been mostly unavailing, failing on issues of causation and standing, though many are still making their way through the courts.  Regulatory and legislative solutions have also fallen short.  The FDA and Congress attempted to address the issue, but the FDA’s response has been slow and unenforceable, while legislation lacks bipartisan support, and has stalled in committee. 

Continue reading “The Poisoning of the Gerber Generation:” →

JOB POST! Law Clerk for Food and Beverage Team

Davis Wright Tremaine LLP is offering a paid, school-term law clerk position to a diverse 2L/3L student to work with our Food + Beverage team for the Spring 2023 Term. This is a remote position with the potential to travel to one of the DWT offices at some point during the clerkship.  The online application site opens on October 3, 2022. Applications must be received by 11:59 PST on October 31, 2022.

The link to the job post is here.

Reflections on the 6th Annual Food Law Conference: Current Trends & Perspectives Beyond the Beltway

by Alexa Libro*

Earlier this year, I had the pleasure of attending CLE International’s 6th Annual Food Law Conference. I vividly remember attending the previous food law conference in San Francisco in February of 2020, deliberating on whether it was appropriate to shake hands and how often to use hand sanitizer. A lot has changed since then, including food law. This evolution of food law was demonstrated in every session of this year’s food law conference. Ann Oxenham, the Acting Director of the Office of Compliance in the Center for Food Safety and Applied Nutrition (CFSAN) at the US Food and Drug Administration spoke of tech-enabled traceability as a part of the FDA’s new era of smarter food safety. The General Counsel Roundtable session exemplified how food businesses had to adapt to navigate supply chain issues, labor issues, and remote work. Thus, ending the conference with a session on the future of food law was the perfect way to reflect on how food law has evolved and surmise its next evolution.

In the Future of Food Law session, Michael Roberts, the Executive Director of the Resnick Center, moderated a conversation with two of his former students, Evan Graham Arango and Jason Lawler. The conversation illustrated why food is currently top of mind for everyone, not just food lawyers. The pandemic forced us to think about where our food comes from. For many, it was the first experience with gardening or baking bread. For many, it was the first experience not finding numerous items on a grocery list. For many, it was the first or worst experience with food insecurity.

Evan Graham Arango, the owner, founder and farmer at Ojai Roots Farm in Ojai, California noted people’s interest in regenerative agriculture and eating locally. I’m speculating that many people, like me, watched documentaries about regenerative agriculture, such as Kiss the Ground and Biggest Little Farm, when they were stuck inside, and were inspired. Regenerative agriculture and its potential to sequester carbon from the atmosphere brings to the forefront the connection between our food system and climate change

Jason Lawler, an associate at Sidley Austin LLP, elaborated on how his work around the business of food interfaces with climate change realities. Businesses are aware that consumers vote with their wallets, which encourages existing businesses to voluntarily offset carbon and new businesses to form with the goal of sequestering greenhouse gases.

Michael Roberts posits that the future of food will revolve around information. As artificial intelligence gives us more insights into what to grow, how to grow it, where to grow it, and when to market it, he wonders how to democratize that information and ensure fairness in data collection and ownership. As a consumer, I wonder how all that information will be relayed to me so I can make good food choices. To all the current and aspiring food lawyers, I look forward to seeing how we navigate the future of food law and reflecting on our progress at the next food law conference.    

*Alexa is graduating this year from UCLA Law. She graduated from UCLA with a BS in neuroscience with highest honors and a minor in biomedical research in 2017. At UCLA School of Law, she has been coexecutive chair of the Food Law Society and is currently chief managing editor of the Journal of Environmental Law & Policy. She is also a research assistant with the Resnick Center.

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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Upcoming Webinar

By Diana Winters

Please let me draw your attention to this exciting upcoming webinar in the Faegre Drinker Food Webinar series, to be held at 10am PT on June 15, 2021:

Litigation Considerations Arising From the Pandemic – This presentation will explore litigation trends in the food practice area arising from the COVID-19 pandemic. Covered topics include types of litigated claims, state and federal defenses, and jurisdictional questions, among others.

The webinar will be led by Molly Flynn, a partner at Faegre Drinker, and Rita Mansuryan, an associate at Faegre Drinker and a Research Affiliate with the Resnick Center, as well as an Advisory Board member.

I am sure it will be terrific. You can register for the webinar here.

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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Food Law Conference – March 2-3

by Diana R. H. Winters

I will be attending CLE International’s Annual Food Law Conference on March 2-3, 202, in San Francisco.  This is a terrific conference, which I highly recommend.

This is one of the few food law conferences where you can hear from both defense and plaintiff’s counsel, industry associations, and advocacy organizations.  I learned so much last year.   Michael T. Roberts, the Resnick Center‘s Executive Director, is a Co-Chair, and I am speaking on state law regulation on Tuesday, March 3.  The featured speaker is Laura Eichhorn Kurpad, Esq., Associate Chief Counsel US Food and Drug Administration, to give us views from the FDA.  You can find more info here: https://web.cvent.com/event/091ab345-25cd-4928-adf0-9212b7768bd5/summary?RefId=cle.com%20more%20info

Seriously, this conference is the cream of the crop!  Hope to see you there.

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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