New Online Course: Global Regulation of Food Contact Substances and Packaging

The course starts in January 2019.  More information is available at 

https://goo.gl/ESzACq

Information Session on Master of Jurisprudence Degree at MSU

Give us our chicken but hold the antibiotics

By Abhijit Ghosh

In a time of national division, Americans remain unified on their love for chicken. As the No. 1 source of protein consumed by Americans, chicken commanded $90 billion in 2016 consumer spending.

The use of antibiotics in feed and agricultural water began in the 1950s. While pharmaceuticals and chicken farmers have harvested financial windfalls and cost savings respectively, consumers are facing an emerging public health crisis. Behind the curtain of murky marketing, uncooked chicken may have elements of bacterial resistance rising from the industry’s unchecked antibiotic usage. By changing their spending habits and demanding state legislation, consumers are reshaping industry practice.

In 1950, American Cyanamid, a pharmaceutical, stumbled on to a finding where the use of Aureomycin, an antibiotic, played a key role in fattening chicken. Word spread across the industry and the use of antibiotics to spike livestock feed and agricultural water mushroomed. While farmers have been able to fatten birds quickly, pharmaceuticals have been fattening their wallets. According to Consumers Reports, 80 percent of antibiotics sold today are used for meat and poultry production. Of the 27 million pounds of antibiotics sold in 2014, livestock operations used 20 million.

Public health crisis

The purpose of antibiotics is clear: to kill potentially harmful bacteria. Repeated use and overuse trigger bacteria to mutate in order to gain resistance to the effects of any particular antibiotic. With their large enclosed spaces, chicken farms provide the perfect nidus for antibiotic resistance. Under the FDA’s blind eye, those bacteria-infested chicken then follow supply chain to grocery stores and kitchen counters. According to the CDC, 23,000 people die from microbes resistant to antibiotics. The Institute of Medicine concluded in a 1988 report that “a link can be demonstrated between the use of antibiotics in food animals, the development of resistant microorganisms in those animals, and the zoonotic spread of pathogens to humans.”

FDA

The FDA’s mission is to protect the public’s health and keep the food system secure. Under the FDA’s Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sects. 301-399f), the FDA must approve a new animal drug before it goes to market. Following the 1950 finding and rapid application, the poultry industry quickly obtained FDA approval. To this day, the approval stands. Due to aggressive lobbying of pharmaceutical and chicken farmers, Congress has been successful in creating only voluntary requirements to curtail antibiotic usage for growth purposes, while maintaining an exception for medicinal usage in chicken farms.

Litigation

Nonprofit advocacy organizations including the National Resource Defense Council (NRDC) attempted to push the FDA into action by going into litigation focused on 21 U.S.C. § 360b(e)(1). Prior to issuing the voluntary guidelines, the FDA called for hearings regarding the public health crisis but never held the hearings. NRDC argued that the cited rule above compelled the FDA to actually hold the hearings. On appeal, the Second Circuit sided with the FDA’s decision not to withdraw the approval.

States

In 2014, tests from Consumer Reports revealed that 97 percent of chicken breasts available for sale at grocery stores nationwide contained bacteria that are potentially harmful for human consumption. Such jarring statistics compelled consumers to demand changes at the state level. Of the eight states that had proposed legislation to curtail antibiotics usage in chicken farms only California passed a law, which will take effect Jan. 1, 2018.

Industry

Perdue has begun to change its business practice. Perdue showed that it was feasible to maintain production while completely phasing out antibiotics. Motivated by stagnant sales, fast food restaurants such as McDonald’s, Chick-Fil-A, and Subway issued statements that they will stop serving chicken processed with antibiotics.

Conclusion

With the movement towards healthier eating, Americans’ love for chicken will only grow. Today, however, consumers don’t want just any chicken, they want antibiotic-free chicken. Consumers are driving the demand for antibiotic free chicken. Fast food companies are listening and encouraging chicken farms to do the same. There is a false assumption that chicken grown without antibiotics would be cost prohibitive. As evidenced by its increasing market share, Perdue has taken the lead showing it is indeed possible to meet consumer demands without using antibiotics. The question is will other chicken farmers follow suit?

Food Regulation, 2nd edition, is now available!

The second edition of Food Regulation is now available.  It contains over 25 percent new material, particularly a rewritten import law chapter and revisions related to food safety regulation, health claims, and food defense. The text provides an in-depth discussion of the federal statutes, regulations, and agencies involved in food regulation. After an introduction to the history of food regulation, it covers current food regulations, inspection and enforcement, international law, and more. 

With explanation of the policies and food science behind the law, the text is designed for both food scientists and lawyers. Yet the book remains accessible to students and professionals alike. This is an excellent text for food science and food law and a practical reference for food industry professionals, consultants, and others. 

I hope you find it appetizing. If you would like more information, the Table of Contents is available here.  A copy of Chapter One is available here.  

To order from the publisher, click here. 

To order from Amazon, click here. 

To order the iBook, click here. 

MSU's world of food has plenty to offer

By Michaela Oldfield / Global Food Law Fellow

You may have noticed it’s been a while since my last post. Well, my fellowship with the Institute for Food Laws & Regulations is wrapping up, so I’ve been occupied with finishing journal articles and frankly not quite sure what to write for a final post.

Except I don’t want to never post again and leave people thinking, “Did she move to Iceland or Peru or somewhere?” (No, those are just places I would like to visit some day)

Michaela Oldfield at the MSU summer food law seminar.

I spent some time pondering whether to write about a recent food law issue and act like nothing is changing – for instance, I could write something explaining the possible importance and very gnarly knot of the FDA deciding to redefine healthy - or I considered trying to give some current and future food law students advice about how to build a food law career.

Or, and this is what I’ve decided to do, I can write a bit about food law as part of the larger educational opportunities at Michigan State University. Because even though I’m looking forward to the next step of my career, I want others to recognize and take advantage of the amazing resources at MSU.

My original purpose with this blog has been to try to demonstrate to current and potential students how lawyers might analyze a food policy issue. I wanted to give readers an idea of what it means to “think like a lawyer” so that they could see what they would be getting into if they pursued a Certificate in International Food Law or a Master’s in Global Food Law.

I would also note there are a number of other online degrees that match up nicely with these programs, including a master’s degree in food safety or public health and perhaps even an MBA.

Of course, I’ve strayed from my legal analyses because I’m not only a lawyer. I’ve also studied sociology, geography, public policy, political science, behavioral economics, etc., as part of an interdisciplinary Ph.D. to understand the history and operations of our food and agriculture systems policies. It is hard for me to separate my policy-oriented thinking from precise legal analysis, because what I care about is the “so what” of the legal analysis for understanding the larger systems issues.

I chose MSU for my graduate studies because it’s a place I could study food law and policy from these numerous angles. I wanted to gain understanding of the variety of perspectives on how food systems operate and build skills for critically analyzing what is wrong with, and how to fix, our food systems. I consider this interdisciplinary thinking key to solving challenges such as public health and sustainability (among a potential litany of others) because no one discipline can fully understand things so complex as our food and agriculture systems and the societies in which they operate. 

Being on campus, I’ve also been able to connect with faculty across the university studying food systems from any number of angles – food science, food safety, nutrition, ag econ, international development, agrifood sociology, labeling and standards, regional food systems development, local food systems planning, entomology, crop and soil sciences, the list easily goes on and on. But I have known and/or worked with someone in each of these areas whose work I think is exciting and valuable. 

As the Global Food Law Fellow, I’ve been able to really dive into the nitty gritty of food law issues, including through writing this blog. Working with our students and planning the Food Law Seminar has been a rewarding experience that has given me new perspective on the regulatory complexities and challenges facing food companies. But everything I’ve learned has been informed by my interactions with other MSU researchers, and, I think, helped me develop a more nuanced understanding of these challenges. 

For anyone interested in food law or food systems, there really is an incredible abundance and diversity of researchers here who can broaden your perspective on the context in which food law operates. So while I’m sure many of you already know that MSU is a leader in Food Law, also remember it is a leader in many other food issues.

Which is all to say, when you discover you need expertise beyond food law, go explore some of the rest of what MSU has to offer.

Skál and chau!!!

Label limbo: Use by when? According to whom?

By Michaela Oldfield

MSU Global Food Law Fellow

You know the scene. There’s that container of yogurt idling in your fridge. It had a "best by" date of a week ago, maybe more. Is it just idling, or is it festering? Should you eat it, or toss it?

This is a conundrum faced by consumers every day, and what do to about their confusion has been getting some recent news coverage. There is a movement happening to address the use of dates in food labels, because they are creating confusion that leads to consumers throwing away perfectly safe food. Even Wal-Mart is getting in on the action.

This issue of labeling is part of a larger, much more complex issue of how to address food waste. Here’s some of the other issues implicated in food waste reduction efforts:

• Why is food being wasted? Because of cosmetic standards, because of food safety standards, because there’s too many calories in our food system for how many people we have? The food waste solution depends on what you see as the cause of the problem.
  
•  Is this about reducing waste to improve sustainability, make more food available, or save consumers money? Is reducing food waste the right approach to tackle that particular problem?

•  Food “waste” can actually be redirected into food “recovery” when it is donated to anti-hunger organizations. But who bears the cost of collecting, distributing and disposing of unusable foods? And is it just to expect low-income individuals to rely on recovered food for their nutritional and caloric needs?

• The best way to reduce waste is to not produce or purchase more than can be consumed, which reduces the availability of food for recovery - how might food waste reduction initiatives operate at counter purposes with each other?
  
•  If we reduce food waste, does that reduce food demands, depressing prices or causing problems for the food industry that needs to sell more food?

There are more issues. Those are just a few that have occurred to me as I’ve been considering the issues and implications of food waste in the U.S. While focusing on date labeling makes sense because its low hanging fruit, these complications make me a little concerned about the strategy. It runs the risk of making it seem that a simple switch by industry and behavioral change by consumers will be a sufficient quick-fix.

Nonetheless, given the recent coverage of food date labels, here’s a brief intro/refresher on some food date labeling law.

Consumption dates on foods in the United States are governed by the Food, Drug and Cosmetic Act, 21 U.S.C. §341 et seq. However, contrary to what many consumers might think, most foods are not required to have any sort of “consume by” or expiration date. For the most part, dates must be used in a manner that is not ‘misbranded”, 21 U.S.C. § 331(a), meaning they cannot be “false or misleading in any particular”, 21 U.S.C. § 343(a)(1). The one exception is that infant formula must be labeled with “use by” dates. 21 C.F.R. § 107.20.

Other than that, it’s up to companies to decide what dates to use and even whether to put any sort of dates.

This issue came up a few years ago in United States v. Farinella, 558 F.3d 695 (7th Cir. 2009), in which the FDA prosecuted a man for misbranding salad dressing when he changed the “best when purchased by” date on the bottles.

The prosecutor in the case took “best when purchased by” to be the same thing as expiration dates, id. at 697, and prosecuted the man on the grounds that it was a safety issue. But that’s not really what those date labeling terms mean.

There’s no consensus on exactly what “best when purchased by” or “best when used by” dates mean 558 F.3d at 698. They’re generally about freshness and taste, but it’s up to the manufacturer to decide what these dates should be based on their knowledge of the product’s shelf life. Id. And in theory, anyone in the distribution chain could make a judgement about the products quality decline and relabel accordingly (though that could constitute a breach of contract between the manufacturer and distributor). Id. at 697.

Expiration dates can have a specific meaning. The FDA’s regulation of infant formula requires “use by” dates which are calculated “on the basis of tests or other information showing that the infant formula, until that date, under the conditions of handling, storage, preparation, and use prescribed by label directions, will: (1) when consumed, contain not less than the quantity of each nutrient, as set forth on its label; and (2) otherwise be of an acceptable quality (e.g., pass through an ordinary bottle nipple).” 21 C.F.R. 107.20(c).

Some states also regulate the “use by” and other labeling dates, with considerable variation as to whether it’s for safety or other fair-marketing reasons. (See the NRDC report the Dating Game for an inventory of states’ labeling laws.)

In the case of United States v. Farinella, since it was being prosecuted under the FDCA, Farinella had done nothing violating that law and so his conviction was overturned.

This confusion over the date labeling arose more recently in Chase v. Bros. Int'l Food Corp., 3 F. Supp. 3d 49 (W.D.N.Y. 2014). In that case, Chase complained to his employer about the date labels being changed, was fired for not signing a non-disclosure agreement that would have restricted him making the information public, and subsequently brought a false termination claim against his employer under the whistleblower protection provisions of the Food Safety Modernization Act, 21 U.S.C.A. § 399d(a).

Whether the employee’s activity was protected under the whistleblower provision turns in part on whether the employee had a reasonable belief that the law was being violated. “It is well settled that an employee's mistaken belief that an employer has violated a law may nevertheless be reasonable provided that the totality of the circumstances establishes that a reasonable employee considering the same facts could have concluded that the employer had violated the law.” 3 F.Supp.3d 49 at 54. Consequently, the labeling date confusion exposes food manufacturers to some potentially difficult employment situations.

So long story short: there’s no consistent federal requirements on what labeling dates should be. Representative Pingree has introduced legislation to try to address this. But in the meantime, so long as the terms and dates are used in a not-misleading manner, food companies can apply dates as they deem appropriate.

If FDA agents and food company employees can’t understand these laws, it’s no wonder that consumers are confused too!