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Food Safety News continues to be incredulous at Chipotle’s apparent denial of responsibility for the safety of food served in its outlets.

For sure, what has happened at Chipotle restaurants is unusual—illnesses caused by multiple toxic microbes at multiple locations:

• Seattle — E. coli O157:H7, July 2015, five sick people, source unknown;
• Simi Valley, Calif. — Norovirus, August 2015, 234 people, source was sick employee;
• Minnesota — Salmonella Newport, August and September 2015, 64 sick people, source was tomatoes but it remains unclear  at what point in the field-to-fork chain the pathogen was introduced;
• Nine states — E. coli O26, began October 2015 and declared over Feb. 1, 55 sick people, source unknown, states involved are California, Delaware, Illinois, Kentucky, Maryland, Minnesota, New York, Ohio, Oregon, Pennsylvania and Washington; and
• Three states — E. coli O26, began December 2015 declared over Feb. 1, five sick people, source unknown, states involved are Kansas, Oklahoma and Nebraska; and closing out in
• Boston — Norovirus in December, 151 sickened.

Chipotle did the obvious right thing.  It brought on board the most experienced and highly regarded food safety experts: Mansour Samadpour (he has a food safety consulting company), James Marsden (to head up its food safety initiatives), Dave Theno (formerly of Jack in the Box) and David Acheson (former FDA food safety official).

Perhaps before they had time to weigh in, Chipotle’s counsel wrote a letter to the CDC complaining about the way the agency was conducting its investigation.

The CDC recently responded in no uncertain terms as Food Safety News discussed.

Food safety lawyer Bill Marler says:

My thought:  “In 23 years being involved with every major food illness outbreak in the US, I have never seen a company take on the CDC or public health in this manner.  Frankly, it is bizarre given that Chipotle was involved in multiple Salmonella, Norovirus and E. coli cases in 2015.  As the CDC states in its responsive letter, it has to protect the public health and that is what it did.”

His view of the score: CDC 1, Chipotle Lawyer 0.

Chipotle’s food safety consultants have their work cut out for them.  Let’s hope they figure out the problem and find ways to solve it—soon.

The terms “healthy” and “natural” help to sell food products.  They are about marketing, not health.

This makes life difficult for the FDA, which has the unenviable job of defining what the terms mean on food labels.

In a victory for the maker of KIND bars, the FDA has just said that the bars can be advertised as healthy—and that the agency will be revisiting its long-standing definition of the term.  This is what that definition says now:

You may use the term “healthy” or related terms as an implied nutrient content claim on the label or in labeling of a food that is useful in creating a diet that is consistent with dietary recommendations if the food meets the conditions for total fat, saturated fat, cholesterol, and other nutrients…In addition, the food must comply with definitions and declaration requirements for any specific NCCs [Nutrient Content Claims].

The chronology :

• March 2015: FDA issues a warning letter to KIND stating that product labels make nutrient content claims without meeting the requirements for making such claims.
• December 1, 2015: KIND files citizen petition asking FDA to permit use of “healthy” because nuts, even though higher in fat than FDA permits, are healthy.
• April 20, 2016: FDA says KIND products now meet labeling requirements
• May 10, 2016: KIND announces that the FDA has reversed its stance and will allow it to use “healthy.”

As reported by Food-Navigator-USA (in a remarkably thorough account of these events),

Dr. Susan Mayne, Director of the Center for Food Safety and Applied Nutrition at the FDA, said: We do not object to the specific statement that you would like to place on your bar wrappers, on the condition that there will be no other nutrition-related statement, such as express or implied nutrient content claims, on the same panel of the label…We agree with you that our regulations concerning nutrient content claims are due for a reevaluation in light of evolving nutrition research.”

What this sounds like is that FDA will be soliciting comments on the meaning of “healthy.”   It also sounds like the FDA agrees that fat is not an appropriate criterion.  But will the FDA set a limit on sugars?  KIND bars are sweetened.

This looks like the FDA will request comments as the start of its interminable rulemaking process.

In the meantime, here’s the Wall Street Journal’s video explanation of the absurdity of the current rules.

Natural

The FDA is further along in that process for “Natural.“  The comment period closed and Politico Pro Morning Agriculture reports that more than 5000 came in.  These have not yet been posted, but Morning Ag has some.  It says opinions vary.  Widely.

• FDA should prohibit using the term.
• Acceptable post-harvest processing and production methods [including GMOs]
• No chemicals, no additives, and no kitchen chemistry
• Some forms of processing can be used – and indeed may be necessary.
• ‘Natural’ means that this product contains no artificial or synthetic ingredients.

I’ve commented many times in the past on the ongoing debates about “natural.”

I repeat: When it comes to food labels, “healthy” and “natural” are marketing terms.  Their purpose is to sell food products.

Caveat emptor.

Congress in its infinite wisdom is now doing Big Ag a big favor.  It wants to exempt checkoff programs from having to deal with pesky Freedom of Information Act (FOIA) requests.

The House Appropriations Committee just approved its version of the 2017 Agriculture Appropriations bill along with committee report language getting checkoffs off the hook.

Checkoff programs, you will recall are commodity research and promotion programs run by boards and overseen by USDA.   The Milk Board, for example, does the milk mustache campaign.

Checkoffs mainly do generic marketing.  They are not supposed to lobby.  The USDA is supposed to manage the boards—but not with federal money.

So are checkoffs government programs or not?

The checkoffs like to say they are government when convenient, but not government when inconvenient.  This is one of those times.

The report language says because checkoffs are “not agencies of the federal government,” they should not be subject to FOIA laws.

I learned about this latest example of congressional protection of industry from a tweet on May 2 from Associated Press reporter Candice Choi.

Food commodity trade groups, she shows, wrote a letter to Congress to exempt checkoff programs from being subject to FOIA requests.

Congress happily incorporated that language right into the Appropriations Act.

In their article about this latest act of hypocrisy, Candice Choi and Mary Clare Jalonick write:

On April 11, a group of 14 trade associations sent a letter to Rep. Robert Aderholt, R-Ala., chairman of the House Appropriations agriculture subcommittee, and Rep. Sam Farr, D-Calif., the subcommittee’s top Democrat, asking them to urge USDA to recognize that the promotional programs are not subject to public records requests.  The rationale was that the programs are funded by producers, according to a copy of a letter obtained by the AP.

Irony alert: A Supreme Court decision in 2005 upheld the checkoffs’ collection of fees from producers as being protected as “government speech.”

Hypocrisy alert: Trade associations wrote the letter, not the checkoff boards.  This is because the boards are not allowed to lobby, but their closely related trade associations can.

Choi and Jalonick also point out that:

The checkoff programs were established by the government at the industry’s urging as a way to collect mandatory fees from producers for promotional efforts. That has resulted in considerable marketing muscle for agricultural products. Last year, the egg board had revenue of more than $22 million; the pork board’s revenue topped $98 million in 2014.

The Fern quotes professor Parke Wilde of Tufts University, a long-standing expert on checkoff programs.  These, he says,

have always been subject to freedom of information laws. It stands to reason: Farmers and the public deserve to know what’s really going on with these well-funded USDA-sponsored programs….

Wilde obtained documents

about the 2006 decision by the Pork Board to pay $60 million to the National Pork Producers Council for the rights to the advertising slogan of pork as “the other white meat.” Wilde wrote in 2013, “It looks to me like the sale price was drastically inflated as a way of funneling money from the semi-public checkoff program to the private-sector trade association.”

Just last year, a FOIA request from The Guardian, revealed that the egg checkoff, working with Unilever, agreed to use its influence to have Hampton Creek’s Just Mayo removed from Whole Foods.

Lobbying or not?  You decide.

The National Farmers Union says it

strongly opposes the blurred lines between the commodity trade associations and the checkoff boards. Our policy states that mandatory producer assessments should not go to organizations that engage in lobbying, and no contracts should be awarded to organizations that carry out political or lobbying activities.

FOIA is a central pillar of transparency in our democracy. It provides for an open government where citizens can request records from federal agencies – with some exemptions for national security, law enforcement and personal privacy…Take a look at the letter NFU sent today, and let your members of Congress know that this language is not in the best interest of family farmers, ranchers or consumers.

Thanks to The Hagstrom Report for this list of references

▪ Capital Press — Commodity groups seek Freedom of Information exemption for checkoff boards

▪ National Public Radio — Under Attack, Commodity Promotion Programs Try To Hide Their Emails

▪ U.S. Food Policy —Checkoff program supporters seek to shield checkoff boards from freedom-of-information scrutiny

▪ The Guardian — Largest U.S. food producers ask Congress to shield lobbying activities

▪ Fortune — Where’s the Beef? You Won’t be Able to Find Out if Agricultural Groups Get Their Way

Warren Buffett, the billionnaire who owns 9.3% of Coca-Cola stock, understandably defends its products.  When challenged by shareholders in his company, Berkshire Hathaway, Buffett said:

He also said he drank 700 calories worth of Coca-Cola each day (translation: 44 teaspoons of sugars).  As Michael Jacobson of the Center for Science in the Public Interest put it, this much sugar is not in the interest of anyone’s health.

Maybe the Wizard of Omaha can maintain good health while consuming more than three times the added sugars recommended by the nation’s leading health officials, but it’s a sure-fire prescription for increased risk of diabetes, heart disease, obesity and tooth decay for the rest of his fellow citizens…the American Heart Association whose scientific panels have reviewed the evidence as well call for an even more conservative daily limit of added sugars: six teaspoons for women and nine for men.

Jennifer L. Pomeranz.  Food Law for Public Health.  Oxford University Press, 2016.

I’m told that food law is the hottest area in legal education right now.  At a time when law schools and lawyers are struggling, food law offers opportunities.  Food issues are so controversial that they constitute a full employment act.

Jennifer Pomeranz is my colleague at NYU.  Her book could not be more timely, and I was delighted to give it a blurb:

If you want to know how laws and regulations affect what you eat, how those laws are made, and why they cause so much controversy, Food Law for Public Health is a terrific place to start.

I love cartoons (witness Eat, Drink, Vote: An Illustrated Guide to Food Politics) and was appalled when I read this tweet:

Here’s the offending cartoon:

In a Facebook post the cartoonist, Rick Friday, explained:

I am no longer the Editorial Cartoonist for Farm News due to the attached cartoon which was published yesterday. Apparently a large company affiliated with one of the corporations mentioned in the cartoon was insulted and cancelled their advertisement with the paper, thus, resulting in the reprimand of my editor and cancellation of It’s Friday cartoons after 21 years of service and over 1090 published cartoons to over 24,000 households per week in 33 counties of Iowa.

I did my research and only submitted the facts in my cartoon.

That’s okay, hopefully my children and my grandchildren will see that this last cartoon published by Farm News out of Fort Dodge, Iowa, will shine light on how fragile our rights to free speech and free press really are in the country.

The Des Moines Register explains further:

The CEOs at the ag giants earned about $52.9 million last year, based on Morningstar data. Monsanto and DuPont, the parent of Johnston-based Pioneer, are large seed and chemical companies, and Deere is a large farm equipment manufacturer.

Profits for the three companies, all with large operations across Iowa, also have declined as farm income has been squeezed. After peaking in 2013, U.S. farm income this year is projected to fall to $183 billion, its lowest level since 2002.

US Uncut adds more details:

Friday received an email from his supervisor at Farm News, informing him that he would be fired, citing he was “instructed” by a superior to not accept another cartoon from Friday. The supervisor told Friday that “in the eyes of some, Big Ag cannot be criticized or poked fun at.”

It also published Friday’s cartoons based on his firing.  Here’s one:

Friday has done other cartoons like this.  It’s not surprising that he has corporate advertisers upset.

How to help? Consider a quick note to Farm News about how badly Americans need a free, independent press to discuss farm issues.

Here’s the publisher’s contact information:

Larry Bushman
lbushman@messengernews.net

(Thanks to Daniel Bowman Simon for keeping me up on such things.)

Addition, May 5: Friday’s view of all this.

Philadelphia Inquirer reporter Mike Newall says the beverage industry is spending a lot of money (“flowing like a Big Gulp”) to defeat the City Council’s soda tax initiative—$2.6 million so far (but see footnote below).

Here’s the catch – this time around, the beverage barons only have to win over City Council. There are 17 Council members, so that comes out to about $152,000 in ad dollars each.

Philadelphia is a battleground Big Soda cannot afford to lose.

The soda industry spent more than $10 million to fight soda tax measures in San Francisco (the industry succeeded) and in Berkeley (the industry lost—76% of voters were for the tax).

But what I really want to know is how much the soda industry spent to defeat Mayor Bloomberg’s proposal to cap the sizes of sugary beverages at 16 ounces.  I live in New York City and here’s what I saw the industry do or heard about (much of this is documented in my book, Soda Politics, and in former NYC Health Commissioner Tom Farley’s Saving Gotham; Farley is now health commissioner in Philadelphia):

• Three full-page ads in the New York Times
• Signs on Coke and Pepsi delivery trucks
• A personal mailing to my home
• Tee shirts: “I picked out my beverage all by myself”
• People collecting signatures on petitions against the proposal (they said they were paid $30/hour)
• Airplane banners
• Movie trailers
• Video ads
• Meetings with city officials
• Legal challenges—briefs, court appearances

This was not an election so the soda industry did not have to disclose how much it spent.  But I sure would like to know.

Footnote: Jim O’Hara of Center for Science in the Public Interest reminds me that he wrote a report last year about the amount of money spent by the soda industry to fight public health measures.  You can find it here.  By his count, the industry spent ~$15 million just in New York between 2010 and 2015, but I’m guessing this doesn’t count the soda cap legal fees.