Airline Food Safety and Accountability

Posted on September 26, 2012 by Joseph A. Arnold — No Comments ↓

Delta made headlines this summer when passengers discovered needles in turkey sandwiches served on three separate flights from Amsterdam to the U.S. Both the Transportation Security Administration (“TSA”) and the FBI announced that they would be investigating the catering company, Gate Gourmet, to determine the origin of the tampered food. Delta announced plans to heighten its food safety procedures.

Just two weeks after the Delta incident, four needles were found in airline sandwiches on an Air Canada flight from British Colombia to Toronto. Gate Gourmet also caters for Air Canada, but the incidents appear to be unrelated. Although Air Canada was reluctant to discuss the matter, police suspect that a disgruntled employee may have planted the needles during the course of labor negotiations with the caterers’ union. The airport added extra security guards and cameras to monitor the food preparation area.

Gate Gourmet is no stranger to food contamination claims. Shortly after the incidents hit the news, Gate Gourmet issued a statement on its website advising consumers that it was launching a full internal investigation. This post is not about Gate Gourmet; the catering giant certainly is not alone when it comes to contaminated airline food.

Rather, this post is to highlight the risks associated with airline food. The hundreds of millions of travelers consuming airline food each year represent a particularly vulnerable group of people, who have limited choices, limited information, and no assurances as to where the food came from and how it is maintained. Each country is responsible for policing its domestic catering operations. The TSA and FDA, for instance, share responsbility for U.S.-based catering operations. From January 2009 to June of 2010, the FDA inspected 46 airline catering facilities and generated 27 reports of food-preparation violations and objectionable catering practices.

The International Flight Services Association, a global professional association dedicated to serving the airline and railway industries, including inflight and rail caterers, publishes the World Food Safety Guidelines for Airline Catering to guide caterers with food safety plans. However, these are merely guidelines, and there is no uniform set of rules and regulations governing the truly international in-flight food industry.

In response to this summer’s dual occurrence of airline food contamination, New York Senator Charles E. Schumer is pushing for stronger regulation of airline food, insisting on stiffer fines for specific violations and bans for catering companies at U.S. airports that have a history of violations.

At the end of the day, responsbility is borne by catering companies and their suppliers, the airlines, and airport security, to ensure food safety and prevent the intentional adulteration of airline food.

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Posted in Food Safety

FDA Announces 100k Genome Project

Posted on September 3, 2012 by Richard Fama — No Comments ↓

The Food and Drug Administration(FDA) and the Centers for Disease Control (CDC) are collaborating with the University of California Davis and Agilent Technologies, a chemical analysis/engineering company from Santa Clara, California, to sequence the genetic codes of 100,000 types of lethal food-borne bacteria. This project, designated “The 100k Genome Project,” will allow the FDA to more easily identify pathogens and in much shorter time periods from weeks to days, or even hours.

The 100k Genome Project is a five-year effort to discern the genetic codes of subtypes of important pathogens like salmonella, listeria, and e coli, all of which were responsible for widespread outbreaks from a range of food products in recent years. This will enable the FDA to pinpoint the genetic codes of 100,000 types of lethal food-borne bacteria so that the agency can respond quickly to deadly contamination outbreaks. The FDA is contributing more than 500 completed salmonella whole-genome draft sequences, as well as other food bacteria strains. The CDC and U.S. Department of Agriculture’s Food Safety and Inspection Service will also be providing strains to be sequenced.

The actual sequencing will occur mostly at the newly formed genome sequencing facility at U.C. Davis. Once sequenced, the genomes of the genetic codes will be stored in a public database maintained by the National Institute of Health’s National Center for Biotechnology Information. The Department of Agriculture’s Food Safety and Inspection Service, which is responsible for inspecting meat in the US, will also cooperate in the effort.

The United States has been no stranger to food-safety incidents . With the 100+ people allegedly sickened from the salmonella bacteria tied to raw tuna this year and the 25 people who allegedly died from listeria-infected cantaloupe last year (not to mention the more recent cantaloupe-related outbreak), there is no doubt that food-borne bacteria incidents have been noticed by the media and the population at large.

“A problem of this magnitude demands an equally large countermeasure,” said Mike McMullen, president of Agilent’s Chemical Analysis Group, “we see this project as a way to improve for quality of life for a great many people, while minimizing major business risk for food producers and distributers.”

According to the FDA, this newly created database will provide a roadmap for the development of tests to identify pathogens and provide information about the origin of each pathogen. It will also hopefully accelerate the testing of raw ingredients, finished products, and environmental samples examined during outbreak investigations.

Open access to this information will allow researchers to develop tests that can identify the type of bacteria present in a sample within a matter of days or hours, significantly faster than the approximately one week it now takes between diagnosis and genetic analysis.

“Right now, we spend a lot of time after an outbreak trying to figure out what country is it from, and how is it spreading,” said Dr. Steven Musser, director of the FDA’s Office of Regulatory Science for Food Safety, “the hope of this outbreak is to cut down on that time, and in turn be able to identify and address the infected food faster, saving as many people as possible from unnecessary illness or death from food-borne pathogens.”

The FDA, however, warns that the creation of this database addresses only one aspect of the outbreak response and public health officials still must identify the food or ingredient contaminated and where the outbreak originated.

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Posted in Food Safety, Food Safety Modernization Act

When Competitors Make You Crabby

Posted on August 14, 2012 by Aaron Krauss — No Comments ↓

Everyone in the food industry wants to come up with their “secret sauce” — that unique ingredient (or combination of ingredients) that sets them apart from others. But coming up with a secret sauce isn’t enough. Once you do, you have to let consumers know. After all, the point of having a “secret sauce” is to get customers to come back, time and time again, for more.

If you tell a lot of people about your “secret sauce,” how do you keep competitors from saying they are selling the same thing? One way is through a trademark. A trademark gives you the exclusive right to use a certain term to describe your goods. But you can’t trademark common terms. Just ask any grower who tried to trademark “apples.”

Chickie’s and Pete’s, a restaurant chain that has made a fortune selling (among other things) beer and “crab fries” to sports fans (who don’t seem to care that the crab fries are spicy enough to make you want several more beers) trademarked their “crab fries.” Technically, this made them the only ones who could sell crab fries®. This worked wonderfully until a crab shack in Kill Devil Hills, N.C. named itself Crabby Fries.

Chickie’s and Pete’s sued to protect its trademark. After all, if you don’t protect your trademark, you lose it. Just ask Xerox® or the folks who invented (and use to have a trademark on) aspirin.

But Chickie’s and Pete’s couldn’t get Crabby Fries to change its name. Apparently they recognized that people were unlikely to confuse a crab shack in Kill Devil Hills, N.C. with the fries being sold north of the Mason Dixon line.

So what are you supposed to do when someone says they are selling the same thing you are? Sometimes you can work it out. Other times you have to either defend your trademark, or push back and say there is no confusion (either because everyone knows the difference or because the trademark is really “generic”). While that is expensive for everyone, sometimes you have to stand up for yourself. Taking to the internet, and attempting to rally your supporters, can help (at least by driving more business to you so that you can pay for your lawyers). Oh, and some people say that everyone wins in a fight like that because there is no such thing as bad publicity.

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Posted in Intellectual Property

E. Coli Outbreak Constitutes A Single Occurrence

Posted on August 10, 2012 by Joseph A. Arnold — No Comments ↓

Incidents of food-borne illness impact a number of parties, from sick consumers to various commercial entities in the chain of distribution. Many general liability insurance policies cap policy limits on a per occurrence basis. For example, a policy may provide $2 million in aggregate limits but only $1 million in per occurrence limits. The relevant question – and one that is frequently litigated – is whether the per occurrence limit applies when an insured is facing numerous claims arising out of an outbreak. The analysis generally is specific to the policy language and the facts of an individual case.

The Tenth Circuit recently addressed this issue in Republic Underwriters Insurance Co. v. Kenneth Moore et al.., No.11-5075 (10th Cir. July 20, 2012). The lawsuit concerned the amount of insurance coverage available to Country Cottage Restaurant for claims originating from a 2008 E. Coli outbreak. The restaurant prepared and served the contaminated food over a 10-day period in August 2008. The E. coli-contaminated food sickened 341 people and resulted in one fatality and, at the time, was believed to be one of the largest such incidents in the country. Most of the victims consumed the food at the restaurant, but 21 were also sickened at a restaurant-catered church gathering.

When the restaurant sought liability coverage, its insurers took the position that the contamination incident constituted a single occurrence. The insurers argued that the number of occurrences is determined by the cause of the bodily injuries, which, in this case, was the ongoing preparation, handling and storage of the contaminated food during that ten-day time period. The restaurant disagreed with the insurers’ position because officials from the Oklahoma Department of Health identified a number of factors as contributing to the spread of E. coli and were unable to identify a single cause of the outbreak.

The insurers initiated a declaratory judgment action and sought to interplead the per occurrence limits. The parties consented to the jurisdiction of the Magistrate Judge. In its summary judgment brief, the claimants argued that various acts of negligence related to the restaurant’s food safety techniques constituted separate occurrences, while other claimants argued that each sale of contaminated food was a separate occurrence. The Court rejected both arguments but still found multiple occurrences. The Court held that, because the food was prepared and served in two different locations, the outbreak constituted two occurrences. The insurers appealed the decision to the Court of Appeals of the Tenth Circuit.

The 10^th Circuit reversed the magistrate’s opinion and ruled that, under the “cause test,” all injuries resulting from the restaurant’s ongoing preparation of contaminated food constituted only one occurrence. The Court relied on Business Interiors Inc. v. Aetna, 751 F.2d 361 (10^th Cir. 1984), a case in which the court held that forty separate checks falsified or altered by an employee on separate occasions constituted a single occurrence because the act was caused by an employee’s “singularly dishonest intent.” According to the Court “an occurrence is determined by the cause or causes of the resulting injury,” and ”as long as injuries stem from one proximate cause[,] there is a single occurrence.” Here, the preparation and storage of the contaminated food at the restaurant qualified as one occurrence because all contaminated food originated at the restaurant, regardless of whether it was subsequently served at different locations.

Republic Underwriters perfectly illustrates why it is extremely difficult to apply a hard and fast rule to determining the number of occurrences, even when the law of a jurisdiction is settled on an analytical framework, such as the cause test. Here, different sets of claimants presented two different arguments, the magistrate developed yet a third solution, and the Tenth Circuit ultimately reached another conclusion altogether. Accordingly, it is extremely important to be familiar with case law from each jurisdiction when performing a number of occurrences analysis.

* Special thanks to Delia Solomon for her assistance with this post.

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Posted in Insurance Coverage

FDA Delays Enforcement of the Food Safety Modernization Act

Posted on July 26, 2012 by Stephanie P. Gantman — No Comments ↓

The Food Safety Modernization Act (FSMA) was enacted in January 2011 to increase the safety requirements for food facilities, as well as the FDA’s role in monitoring compliance with our food safety laws. Ever since this ambitious (and necessary) overhaul, the industry has watched carefully for the FDA to begin enforcing food companies’ compliance with its new responsibilities. However, the FDA recently delayed enforcement of compliance with major provisions of FSMA – mainly the hazard analysis and preventive controls requirements – until final regulations are implemented.

The FDA’s delay relates to two FSMA provisions, sections 103 and 301. Under Section 103, effective July 2012 according to the statute, food facilities are required to evaluate hazards, identify and implement preventive controls to minimize hazards in a written plan, monitor the performance of those controls and maintain records of their monitoring. Thereafter, food facilities are required to reanalyze their plan every three years or whenever there is a significant change in operations. Section 301, statutorily effective January 2013, requires the US to perform risk-based foreign supplier verification activities to verify that all imported foods comply with US law.

In May 2012, industry associations including the Grocery Manufacturers Association wrote letters to the FDA asking for clarification of its plans regarding enforcement of FSMA’s preventive controls and foreign supplier verification provisions because of the imminent effective dates for these measures. The FDA’s Deputy Commissioner for Foods Michael Taylor responded to these concerns, replying for example to the Grocery Manufacturers’ inquiry on June 18, 2012, stating that

the FDA is committed to a “full and timely implementation of FSMA.”

Taylor’s letter makes clear, however, that the FDA “will expect to enforce compliance” in time frames established in the final rules, whenever those may come.

While such final rules for the preventive controls and foreign supplier verification provisions have yet to be published, it is clear that the industry will have additional time to come into compliance with these new responsibilities.

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Posted in Food Safety Modernization Act

Traceback Analysis Protected From Disclosure By The Common Interest Doctrine

Posted on July 24, 2012 by Joseph A. Arnold — No Comments ↓

In the wake of a foodborne illness outbreak, a traceback investigation is critical to determine the source and distribution path of the contaminated food products. According to the FDA, a traceback investigation “helps prevent additional illnesses by providing a foundation for recalls of contaminated food remaining in the marketplace and identifying hazardous practices or violations.” The importance of a traceback analysis is magnified during litigation, where it can be used to prove or disprove liability, provide a basis for comparative/contributory negligence, and possibly limit damages. The potential impact of a traceback analysis makes it a frequent target of discovery in litigation over a foodborne illness outbreak. Is a traceback analysis discoverable? Generally, a food company conducting a traceback investigation will seek to protect the results of its investigation under the work product doctrine. But is that protection waived if the company shares it investigation with another entity in the chain of distribution?

The New Jersey Federal District Court recently held that under New Jersey state law, a traceback analysis that one defendant shared with its co-defendant is protected from disclosure under the common interest doctrine.

The plaintiff, McLane Foodservice (“McLane”) filed suit seeking damages after an e-coli outbreak shut down numerous Taco Bell restaurants in New Jersey, New York, and Pennsylvania in 2006. McLane is a food distribution company that receives and warehouses products from suppliers destined for Taco Bell restaurants. McLane filed the suit against lettuce suppliers Ready Pac Produce (“Ready Pac”) and Tanimura, alleging that contaminated lettuce was the source of the outbreak. Ready Pac and Tanimura both denied that lettuce caused the outbreak, yet they maintained cross-claims against each other and blamed each other for the contamination in a separate action pending in California.

In response to the outbreak, Ready Pac’s counsel conducted a traceback analysis to ascertain the source bacteria and determine which parties, if any, were negligent. Ready Pac and Tanimura later entered into a Common Interest and Confidentiality Agreement to exchange documents, including the traceback analysis. McLane demanded production of the traceback analysis on the basis that any work-product privilege was waived when Ready Pac shared its analysis with Tanimura. McLane further argued that the common interest doctrine should not shield the document from discovery because Ready Pac and Tanimura were adverse to each other in this and other pending litigation.

The common interest doctrine is not a recognized privilege, but rather a rule that determines whether work-product protection has been waived by the sharing of a document with third parties. In many cases, the voluntary disclosure of a document or communication to a third party waives privilege. However, the common interest doctrine, “enables counsel for clients facing a common litigation opponent to exchange privileged communications and attorney work product in order to adequately prepare a defense without waiving either [work-product or attorney-client] privilege.” Haines v. Ligget Group Inc., 975 F2d 81, 94 (3d Cir. 1992). The New Jersey state courts employ a three-part test to determine if a document is protected by a common interest:

The common interest exception may be asserted with respect to communications among counsel for different parties if (1) the disclosure is made due to actual or anticipated litigation; (2) for the purposes of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties.

While determining whether a party has met conditions (1) and (3) is simple enough, the meaning behind “furthering a common interest” in condition (2) has received much scrutiny from the courts. Summarily, courts have held that all of the parties’ interests need not coincide, so long as they share a joint legal interest with regards to the reason for sharing the document. According to the court in S.E.C. v. Wyly, 2011 WL 2732215 at *1 (S.D.N.Y. July 5 2011), “[m]ost courts have held that the common interest privilege can apply even if the clients are in conflict on some or most points, so long as the communication itself deals with a matter on which the parties have agreed to work toward a mutually beneficial goal.” In the case of Ready Pac and Tanimura, the mutually beneficial goal was to prove that lettuce did not cause the e-coli outbreak. Therefore the companies’ other adverse positions were not enough to overcome the common interest. Accordingly, the court ruled that Ready Pac did not have to produce its traceback analysis to McLane.

State laws differ on the application of the common interest privilege, and given courts’ wide discretion in discovery issues, the standard can even differ from judge to judge in the same courthouse. For instance, many courts are wary of parties misusing the common interest doctrine to protect from disclosure documents shared to further a commercial transaction rather than a common legal strategy, or communications regarding joint business strategy where the concern of litigation is secondary. Either way, the McLane Foods case highlights the various discovery issues that can arise in connection with a traceback investigation.

* Special thanks to Thomas Coyle for his assistance with this post.

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Posted in Discovery Issues, Traceback Investigation/Analysis

Genetically Modified Food: Right to Know?

Posted on June 28, 2012 by admin — No Comments ↓

State by state, small farmers and individual consumers are squaring off against large food and agriculture corporations over genetically modified food. So far, it appears the food and agriculture industry has the upper-hand on the little guy. Connecticut state legislation requiring labels on genetically modified food did not make it past the committee stage. The measure was supported by small organic farmers, but opposed by the Connecticut Department of Agriculture. A similar act also failed in the Vermont state legislature.

Despite failures in Vermont and Connecticut, supporters of genetically modified food labels achieved a small success in California. A petition to place the “Right to Know Genetically Engineered Food Act” on the November ballot obtained more than the required amount of signatures. California voters will decide whether genetically engineered ingredients must be noted on product labels. If approved, the California measure could have a huge impact on the food and agriculture industries. Manufacturers would be forced to make California-specific labels or completely change their national labeling process.

The primary proponents of genetically engineered foods include agricultural corporations like Monsanto, which manufactures genetically modified seeds. In March 2011, the Organic Seed Growers and Trade Association (OSGATA), along with a group of family farmers, filed a lawsuit against Monsanto in U.S. District Court in Manhattan. The plaintiffs sought to overturn Monsanto’s control of genetically engineered seed patents. The filing was prompted in part by Monsanto’s lawsuits against farmers who had genetically modified seeds mixed into their crops without Monsanto’s permission. OSGATA et al. vs. Monsanto was dismissed in February 2012, but the OSGATA has recently appealed the decision. In addition to challenging Monsanto’s patents, the organization is fighting more broadly against genetically modified food. The OSGATA and other small farmers believe that their products will benefit if consumers are provided label information regarding genetically modified foods.

The FDA does not require genetically engineered foods to be labeled, and both the FDA and the U.S. Department of Agriculture approve genetically engineered ingredients before they reach the market. Whether or not consumers are aware, genetically modified products are common in grocery stores. California’s ballot measure will test consumer sentiment over genetically modified foods and address the question of whether people really want to know what they are eating.

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Posted in Labeling Claims

Pollution Exclusion Bars Coverage For Contaminated Infant Formula

Posted on June 7, 2012 by Melissa A. Cornibe — No Comments ↓

THE SCOOP

On April 20, 2012, the Virginia Supreme Court determined that a group of property insurers did not owe coverage to PBM Nutritionals, LLC (“PBM”) in connection with its multimillion dollar claim for losses related to contaminated infant formula.

PBM is a leading manufacturer of infant formula. When PBM shut down its machinery for a scheduled cleaning, a valve leaked, which allowed steam to enter a heat exchanger. The steam then superheated water which in turn melted a filter assembly, releasing disintegrated filter components into the water. When PBM restarted its manufacturing process after the cleaning, it did not realize that it was mixing the contaminated water with other infant formula ingredients. After FDA-mandated tests revealed the presence of the filter components, PBM quarantined and disposed of the contaminated batches of baby formula prior to distribution.

THE FOOD FIGHT

PBM submitted a claim under its “product contamination insurance” policy and its commercial property policies for the resulting losses. PBM’s three property insurers denied its claim and litigation ensued. After the circuit court found that the property insurers properly denied coverage, PBM appealed the decision to the Virginia Supreme Court.

On appeal, PBM advanced three arguments as to why the circuit court erred in concluding that it was not entitled to coverage under its broker’s manuscript policy form. According to PBM:

The exception to the pollution exclusion in the manuscript form for pollution resulting from a covered peril conflicted with the pollution exclusions added to the policy through endorsements, creating an ambiguity that must be construed in favor of coverage;
The pollution and contamination exclusion endorsements were ambiguous because they were overly broad and could exclude virtually any loss, and that ambiguity could only be resolved by confining the scope of the pollution exclusion endorsements to “traditional environmental pollution;” and
The circuit court never expressly found that the formula was contaminated, nor did the insurers present sufficient evidence to prove that the formula was actually contaminated.

In affirming the circuit court’s decision, the Virginia Supreme Court explained that PBM did not establish that the manuscript form’s exclusion “conflicted” with the pollution exclusion endorsements. As the court noted, an exception to an exclusion does not create coverage where none exists. Accordingly, an exception that renders one exclusion inapplicable does not create a conflict with another exclusion that does bar coverage. The court, therefore, concluded that the manuscript form’s exclusion had no application to the pollution exclusion endorsements.

The court similarly rejected PBM’s argument that the pollution exclusion endorsements were overly broad and ambiguous. As the court explained,

when determining the meaning and application of a pollution exclusion in a liability policy, ‘the law of this Commonwealth and the plain language of the insurance policy provide the answer.’

Looking to the plain language of the policy, the court found that none of the pollution exclusion endorsements included any terms such as “environment,” “environmental,” “industrial,” or any other limiting language suggesting that the scope of the exclusions was confined to “traditional” rather than “indoor” pollution. Moreover, the court noted that the endorsements did not suggest that the discharge or dispersal of pollutants or contaminants must be into the environment or atmosphere. Finally, the court concluded that if the pollution exclusion endorsements were intended to be limited to traditional environmental pollution scenarios, the included exceptions to the pollution exclusion endorsements would not be necessary. Thus, the pollution exclusion endorsements were unambiguous.

Finally, the court rejected PBM’s argument regarding insufficient evidence of contamination. The court determined that evidence introduced at trial of elevated levels of melamine in the baby formula, combined with testimony that the formula was unfit for human consumption, was unmarketable and had no salvage value, supported the circuit court’s finding of contamination.

LEFTOVERS

The scope of the pollution exclusion remains an ongoing source of tension between insurers and their insureds. PBM Nutritionals offers well-reasoned authority for the application of the pollution exclusion to losses incurred by food manufacturers during the production process caused by the release of contaminants. Though Virginia law is now clear on the issue, interpretation of the pollution exclusion is a jurisdiction specific analysis and will continue to be a hotly-contested issue in courts across the country.

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Posted in Insurance Coverage

UPDATE: FDA Says No To “Corn Sugar”

Posted on June 1, 2012 by Chris Murphy — No Comments ↓

On May 30^th, the Food and Drug Administration issued a ruling denying the Corn Refiners Association’s (CRA) September 14, 2010 petition to authorize the use of “corn sugar” as an alternate optional name for high fructose corn syrup (HCFS). The CRA contended that consumers were confused by the name “high fructose corn syrup” and that “corn sugar” more closely reflected the “basic nature of HCFS and its characteristic properties.” The petition also argued that “consumers incorrectly believe that HFCS is significantly higher in calories, fructose, and the sweetness that sugar.” Pursuant to 21 CFR 102.5(a) the CRA asserted that the name change was appropriate because “corn sugar” reflects the source of the food, the basic nature of the food and discloses the food’s function.

The FDA’s stated rationale for denying the petition is that sugar and syrups have elementally substantive differences that require distinctive nomenclature. Specifically, sugar “is a solid, dried, and crystallized food; whereas syrup is an aqueous solution or liquid food.” Further eroding the basis for the petition, the FDA noted that “corn sugar” is often used to describe the ingredient dextrose to the consumer. Consumers who are fructose intolerant rely on the “corn sugar” designation to indicate dextrose as compared to fructose. Therefore, the FDA opined that allowing the alternate name (or granting a second request under the petition to eliminate the allowance for dextrose monohydrate to be designated as “corn sugar”) could cause a public health risk and put consumers in harm’s way.

The implications for the ongoing litigation in the Central District of California Court between the corn and cane sugar trade groups should play out in short shrift.

The FDA did not critique scientific research as to whether the human body processes sugar derived from corn verses sugar derived from cane in substantially similar manner. Clearly this decision is a significant blow to the CRA’s attempt to rebrand high fructose corn syrup.

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Posted in Labeling Claims, Sugar Substitutes

The Debate Over Gluten-Free Food Labeling

Posted on May 31, 2012 by admin — No Comments ↓

It seems the latest health craze always involves “free” food; fat-free, sugar-free, preservative-free, and now gluten-free. PepsiCo’s Frito-Lay North America recently launched an initiative to label some of their products as “gluten-free.” The proposal includes labeling products with a “GF” symbol or making a statement on the packaging. Not all gluten will be removed from snacks like Lay’s potato chips and Frito’s corn chips, however the company still intends to comply with the FDA’s 2007 Proposed Rules for Gluten Free Labeling. Under these guidelines, manufacturers can label foods as gluten-free if they contain less than 20 parts per million gluten. Other companies like Domino’s Pizza have followed the trend, recently adding a gluten-free pizza crust option to their menu. Like the Frito-Lay products, Domino’s new crust is not entirely free from gluten.

The Frito-Lay gluten-free initiative was undertaken with the support of both the Celiac Disease Foundation (CDF) and the National Foundation on Celiac Awareness (NFCA). These organizations maintain that increased gluten-free labeling will make it easier for those suffering from celiac disease to avoid injury due to the ingestion of gluten. While companies could gain business from celiacs and health-conscious consumers by labeling their products as gluten-free, the label also poses certain risks. Domino’s markets its new pizza crust as gluten-free, yet also discourages those with celiac disease or severe gluten sensitivity from eating the pizza.

If “gluten-free” products still have the potential to harm those with high gluten sensitivity, how informative is the gluten-free label and what responsibility do companies have to their customers? Under the Food Allergen Labeling and Consumer Protection Act of 2004, food manufacturers are required to label any products that contain “major food allergens” like wheat. So while companies may stamp their products with the gluten-free symbol, a more detailed reading of the label will show that traces of the allergen are still present. Although the gluten-free label has the potential to mislead consumers, it appears that the gluten-free community supports labeling initiatives. A Utah gluten-free bakery owner recently filed a lawsuit against Utah Senator Orrin Hatch in U.S. District Court in Salt Lake City, claiming that Senator Hatch has failed to get FDA funding that would allow for gluten-free labeling regulations. The bakery owner thinks increased labeling will help those suffering from celiac disease. The lawsuit will probably not get far, but it highlights the national label debate. In the future, there will probably be a shift towards more gluten-free labels whether or not the food products themselves radically change.

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