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FoodNavigator-USA has collected its recent articles on food industry lawsuits.  As it puts it,

There have been hundreds of class action lawsuits directed against food and beverage companies in the past five years, spanning everything from added sugar, ‘natural’ and ‘healthy’ claims, to glyphosate residues, and alkaline water claims. We take a look at some high profile cases, some emerging hot topics from Non GMO claims to a new wave of kombucha lawsuits, and what’s coming up from the FDA, from plant-based ‘milk’ labeling guidance to a fresh look at ‘healthy’ and ‘natural’ labeling.

I’ve organized these into categories.

GMOs

• And now the food lawsuits… General Mills sued over glyphosate residue post Monsanto $289m verdict: Monsanto has just been ordered to pay $289m in damages to a man who alleged its glyphosate-based herbicide caused his cancer (a ruling it is appealing). But what, if anything, does this verdict mean for food companies manufacturing products containing trace levels of glyphosate?.. Read
• Nestlé USA lawsuit highlights confusion over Non-GMO claims, say attorneys: A lawsuit alleging that Nestlé USA is misleading shoppers with its ‘No GMO Ingredients’ seal is unlikely to make much progress, predict legal experts, but it does highlight the confusion surrounding Non-GMO claims given that the standards underpinning them can differ from one product to another… Read
• The Non-GMO Project may emerge as the big winner from federal GMO labeling legislation: The Non-GMO Project will “only become more relevant” as mandatory GMO labeling kicks in, in part because its scope could be so narrow that consumers will not simply be able to assume that anything without a bioengineered label is automatically Non-GMO, says executive director Megan Westgate… Read

Warnings about chemicals in foods

• ‘Significant increase’ in Prop 65 notices over lead, acrylamide, and cadmium in 2017/18, says Perkins Coie: There has been a significant increase in food and beverage Prop 65 actions in the past five years, with particularly strong growth in notices relating to lead, acrylamide and cadmium, according to new data compiled by attorneys at Perkins Coie… Read
• Amended Prop 65 regulations likely to prompt a significant uptick in litigation, predict attorneys: Amendments to Prop 65 – which requires firms selling products in California to provide warnings if their products expose consumers to 900+ chemicals linked to cancer or reproductive toxicity – will likely trigger a sharp rise in litigation as manufacturers struggle to get to grips with the new rules, predict attorneys… Read

Compliance with labeling and health claims requirements

• RXBAR sued over minimalist labels, ingredients declaration; but case is a stretch, say legal experts: ‘We tell you what’s on the inside on the outside’ protein bar brand RXBAR has been hit with a proposed class action lawsuit* by the same law firms challenging the minimalist ingredients declarations of fellow bar brand That’s It.**.. Read
• Halo Top routinely under-fills its pints, alleges lawsuit, ‘dramatically so, at times…’: A month after being hit with a lawsuit alleging it made false and misleading representations about its light ice cream, Halo Top has been targeted again, this time with a proposed class action alleging it routinely under-fills its pints, “and has been doing this for years.”.. Read
• ‘No reliable scientific evidence’ supports Trader Joe’s alkaline water claims, alleges lawsuit: “There is no greater benefit to ingesting Trader Joe’s alkaline water than ingesting an equivalent bottled water or tap water,” argues a lawsuit alleging Trader Joe’s is duping shoppers into paying over the odds for the water, although legal experts predict that proving Trader Joe’s is making false implied health benefit claims will be “close to impossible.”.. Read
• Plant-based ‘milk’ row heats up as FDA commissioner says ‘public health concerns’ inform the agency’s renewed interest in dairy standards of identity: The war of words over labeling conventions for plant-based ‘milk’ intensified this week as FDA commissioner Dr Scott Gottlieb indicated that a “a new compliance policy” may be on the cards as the agency hosted a public meeting on its nutrition innovation strategy… Read
• Do consumers expect kombucha to contain live organisms? Court gives green light to lawsuit: Do consumers expect products labeled as ‘kombucha’ to contain live organisms, even if they don’t make any claims to this effect? Maybe, according to a court filing in a case that could have broader ramifications for the burgeoning category going forward, say attorneys… Read
• How much sugar do consumers expect in a ‘lightly sweetened’ cereal? Judge certifies classes in Kellogg added sugar case:  If up to 40% of the calories in breakfast cereals are from added sugar, and brands describe them as ‘lightly sweetened,’ are they misleading shoppers? Perhaps, says a federal judge who has just certified three classes of consumers in a false advertising lawsuit vs Kellogg, which is now heading into mediation… Read
• Tofurky CEO: It’s not the role of lawmakers to choose winners or losers in any given industry: As long as protein products are safe and shoppers are not being misled, it’s not the role of lawmakers to write new labeling laws favoring one production method over another, says the CEO of plant-based meat brand Tofurky, which is challenging a Missouri law* limiting the term ‘meat’ to slaughtered livestock or poultry… Read
• Clif Bar fires back at ‘absurd’ lawsuit: Consumers expect energy bars to contain sugar: Clif Bar has hit back at allegations made in a recent lawsuit* that it is duping consumers by presenting bars that are “loaded with sugar” as wholesome and nutritious, and urged the judge to toss the “absurd” and “implausible” case… Read

And here’s a more recent one from CBS News:

• LaCroix ingredients: Lawsuit alleges “all natural” claim is false: LaCroix sparkling water is facing a lawsuit alleging its claims of “all natural” and “100 percent natural” are misleading because…”Testing reveals that LaCroix contains a number of artificial ingredients, including linalool, which is used in cockroach insecticide.”

And here’s one more from CSPI (an October 24 addition):

• CSPI sues Jamba Juice: its juices, CSPI charges, are made from cheap concentrates as well as fresh fruit.

Addition, December 11

• Article about the five most active lawsuits

The Environmental Working Group recently released a report on the amounts of glyphosate (Roundup) in children’s breakfast cereals, particularly those made with oats and wheat.

Roundup, you may recall, has been judged a probable carcinogen by the International Agency on Research on Cancer (IARC) and California courts.  It is used to kill weeds in fields growing crops genetically modified to resist Roundup.

But oats and wheat grown in the U.S. are not genetically modified.  The FDA’s list of genetically modified foods says nothing about oats and wheat, and the agency does not permit GMO versions to be marketed.

How could Cheerios and Quaker Oats be contaminated with glyphosate at amounts that exceed standards?

The explanation:

Increasingly, glyphosate is also sprayed just before harvest on wheat, barley, oats and beans that are not genetically engineered. Glyphosate kills the crop, drying it out so that it can be harvested sooner than if the plant were allowed to die naturally.

Really?  They spray glyphosate on oats just before harvest?  Yes, they do.

What this means is that more glyphosate gets into your food from the non-GMO wheat and oats sprayed just before harvest, then from GMO corn and soybeans sprayed earlier in their growth.

Whether eating glyphosate is bad for you or your kids is a matter of fierce debate.  As the New York Times explains, the safety of glyphosate is very much at issue:

In fact, it is central to a raging international debate about the chemical that has spawned thousands of lawsuits, allegations of faulty research supporting and opposing the chemical and a vigorous defense of the herbicide from Monsanto, the company that helped develop it 40 years ago and helped turn it into the most popular weedkiller in the world.

Scott Partridge, a vice president at Monsanto, said in an interview on Wednesday that hundreds of studies had validated the safety of glyphosate and that it doesn’t cause cancer. He called the Environmental Working Group an activist group.

“They have an agenda,” he said. “They are fear mongering. They distort science.”

The EWG states its advocacy position on its website:

The Environmental Working Group’s mission is to empower people to live healthier lives in a healthier environment. With breakthrough research and education, we drive consumer choice and civic action. We are a non-profit, non-partisan organization dedicated to protecting human health and the environment.

I do not view this report as distorting science.  If anything, it provides data that the industry is not collecting or does not want released.  This information is useful for making decisions about what to eat.

You don’t want your kids eating glyphosate while scientists are still in disagreement about the extent of its harm to human health?

• Vote with your fork: Buy organic cereals; they have far less or no detectable glyphosate.
• Vote with your vote: Call for policies to get these practices stopped.

Or you can consider a third option now in play: file a lawsuit.

I am indebted to IEG Agribusiness Intelligence (formerly Food Chemical News) for alerting me to USDA’s latest proposals for GMO labeling—BE (bioengineered) labels, as USDA prefers.

In May, I wrote about the USDA’s initial proposals:

After dealing with 14,000 comments on them, the USDA has revised them and sent the new set to the patent office.

As the National Law Review comments notes,

Interestingly, two of the newly filed symbols include the text, “made with bioengineering,” which was not explicitly contemplated in the proposed rule. Further, the new filing do not utilize the “smiley faces” associated with proposed Alternatives [shown above], which received much attention in the comments to the proposed rule. Whether USDA adopts any of the newly filed symbols remains to be seen….

The FDA has concluded its “consultation process” on Golden Rice.  This, you may recall, is rice bioengineered to contain genes for beta-carotene, a precursor of vitamin A.

The International Rice Research Institute (IRRI) consulted with the FDA to make sure that the agency had no objection to this rice being used in human or animal food products.

The FDA’s letter to IRRI concluding the consultation includes this statement:

Although GR2E [“Golden”} rice is not intended for human or animal food uses in the United States, when present, it would be a producer’s or distributer’s responsibility to ensure that labeling of human and animal foods marketed in the United States, meets applicable legal requirements.  Although the concentration of ß-carotene in GR2E rice is too low to warrant a nutrient content claim, the ß-carotene in GR2E rice results in grain that is yellow-golden in color.*

The FDA’s analysis of the science concludes that this rice Is unlikely to be toxic or allergenic.  It also concludes that although the rice contains higher amounts of ß-carotene than non-modified rice, people in the U.S. are unlikely to eat much of it and in any case the amounts would decline due to storage, processing, and cooking.

In any case, the amounts are not high enough to merit a nutrient-content claim.

This rice has long been promoted as a means to solve problems of vitamin A deficiency in the developing world.  Will it?  We are still waiting to find out.

*What does “too low to warrant a nutrient content claim” mean?

The FDA’s rules for nutrient content claims (go to pages 91 and 92) say:

• “High,” “Rich in,” or “Excellent source of” means that a standard food portion contains 20% or more of the daily value for that nutrient.
• “Good source,” “Contains,” or “Provides” means 10% to 19% of the daily value per standard serving.
• “More,” “Fortified,” “Enriched,” “Added,” “Extra,” or “Plus” means 10% or more of the daily value than an appropriate reference food.

The daily value for beta-carotene is complicated because it is a precursor of vitamin A; 12 micrograms of beta-carotene are equivalent to one vitamin A unit.  The standard for adults and children is 900 vitamin A units or 900 x 12 for beta-carotene = 10,800 micrograms.

One serving of Golden Rice must provide less than 10% of that amount (1,080 micrograms).

For comparison, one small carrot provides about 4000 micrograms of beta-carotene.

Journalist/author Carey Gillam of US Right to Know has an article in The Guardian about glyphosate (Roundup) in food based on emails obtained in a lawsuit.

The emails concern FDA’s testing of food samples for residues of glyphosate, the herbicide widely used with genetically modified crops.  The agency has not yet released the test results.

But the emails contain some interesting information.  For example, FDA chemist Richard Thompson writes that he had to use broccoli to establish testing standards.

I used broccoli because it’s the only thing I have on hand that does not have glyphosate in it. I have brought wheat crackers, granola cereal, and corn meal from home and there’s a fair amount in all of them.

How much?  We won’t know until the FDA releases the data.

Glyphosate is widely used for growing GMO corn, soybeans, sugar beets, and other ingredients of highly processed foods.  It is not surprising that residues remain in products made from GMO ingredients.

Should we be concerned?

One agency, IARC, judges glyphosate as a probable carcinogen, but industry scientists strongly dispute this decision and are fighting it in court.

We need better data for sure, but in the meantime it is hard to believe that glyphsate residues are good for us.

These findings are another reason to avoid ultraprocessed foods and eat your veggies.

One picture is worth a thousand words.

Here is my favorite of USDA’s proposals for the front-of-package icon for GMO foods.

Translation: “be” means “bioengineered.”

Here are the options USDA proposes (thanks to FoodNavigator.com):

You can’t make this stuff up.

You have about 60 days to file comments.  By all means, do so.

What do we know about the carcinogenicity of glyphosate?

The International Agency on Research on Cancer (IARC) said it was “probably carcinogenic to humans.”

Monsanto, the maker of Roundup, the glyphosate herbicide used widely on genetically modified crops, was not happy with this decision and has been doing all it can to cast doubt on that research.

Some of its efforts are documented in this report:

Republicans on the House science committee have repeatedly tried to get IARC to admit its judgment was based on inadequate evidence.  The chair of the committee wrote IARC complaining about its report and asking for someone to come and testify about it.  IARC declined.  In yet another letter the committee said it would stop funding IARC, to which IARC asked that its immunity be respected.

How to understand all this?  A lot of money is at stake.  In this diagram, HT means herbicide tolerance (e.g., Roundup glyphosate):

The FDA is responsible for food labeling but in the peculiar way things get done in federal agencies, the USDA governs front-of-package labeling for organics and also gets involved in labels for non-GMO, no-antibiotics and those for country-of-origin.

It has just published a report on all this:

The report is a good place to learn about the labeling laws passed in 1990, and it has an interesting case study on GMO labeling:

It has a lot to say about organic labeling:

Do such labels influence what the public buys?  Yes.  (That’s what the USDA is worried about)

Does the public understand what the labels mean?  Not really. (The USDA worries about this too)

The USDA derives many conclusions from this study, but boils them down to this statement:

There are fundamental tradeoffs in how information is presented to consumers. If it is presented simply, then important nuance or complexity may be missed. On the other hand, if standards and labels attempt to convey complexity, then consumers may just be confused. Policymakers and marketers will need to consider these tradeoffs in the future when developing new process-based labels.

What the USDA does not discuss is the fundamental issue behind fights over food labels.  They work well to discourage people from buying products that may not be good for them or do not meet their values.  That’s why the food industry opposes them so strongly.