Washington Insider-Wednesday

Labels, Definitions and the Law

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

Bird Flu Find in Missouri County Prompts Turkey Cull

Discovery of H5N1 low-pathogenic avian influenza (LPAI) in Missouri has prompted to destruction of 39,000 turkeys, according to a USDA notification sent to the World Organization for Animal Health (OIE).

The discovery was made on a farm in Jasper County and the Missouri Department of Agriculture has already set up surveillance measures around the infected farm to watch for any additional cases. All farms within a 10-kilometer radius of the farm have tested negative, the state agency said.

According to USDA's Food Safety and Inspection Service (FSIS), the following countries have put restrictions on US poultry as a result of the AI finding:

Japan: Poultry slaughtered on or after April 5, 2016 which originated from or passed through or is slaughtered/processed within a zone near the farm is ineligible. Within the state, poultry slaughtered/processed outside the zone on or after December 11, 2015, or inside the zone on or after December 11, 2015 but prior to April 5, 2016 is eligible.

Kazakhstan: Poultry originating from Jasper County slaughtered on or after May 1, 2016 is ineligible. However, poultry products that are heat-treated to a temperature according to the table below are exempt from the new restriction.

The event was first discovered on April 26 with confirmation of the H5N1 version on April 30, with U.S. notification to the OIE on May 2.

A comprehensive epidemiological investigation is being conducted by USDA's Animal and Plant Health Inspection Service (APHIS) and the Missouri Department of Agriculture, and they have implemented enhanced surveillance and testing related to this event, according to the OIE. "Samples were initially collected from healthy, non-clinical turkeys as part of the routine, pre-slaughter surveillance that is done under the National Poultry Improvement Plan (NPIP) Avian Influenza Clean Program (H5 and H7)," according to the OIE. "Through this routine surveillance H5N1 low pathogenic avian influenza (LPAI) of North American wild bird lineage was identified and confirmed by partial HA/NA sequence."


Leaked US-Europe Trade Talks Info Prompts US, EU Responses

U.S. and European Union (EU) trade officials pushed back on claims by Greenpeace that leaked Transatlantic Trade and Investment Partnership (TTIP) documents demonstrate that the U.S. is pushing the EU to lower environmental and consumer standards in the ongoing trade talks.

While the U.S. has not made public its offers in the talks, the EU has published proposals after tabling them in the rounds.

Greenpeace posted leaked chapters of the TTIP on its website May 2, and said it was “releasing to the public secret documents” from the U.S.’ TTIP talks with the EU. The group said it is “clear that U.S. negotiators have been consulting with industry behind closed doors” talks and put corporations before the interests of the public. Greenpeace listed “four aspects of serious concern” about environmental and consumer protections.

The U.S. Trade Representative's Office stated, “TTIP will preserve, not undermine, our strong consumer, health, environmental standards, and position the U.S. and the EU to work together to push standards higher around the world.”

White House spokesman Josh Earnest May 2 said that he would not comment on the veracity of the documents but reiterated that President Barack Obama is seeking high-standard trade deals because U.S. business and workers already observe such standards. Earnest also said the leaks will not harm the goal of concluding the negotiations this year. “We certainly are aiming to complete these talks by the end of the year. And I don't think there's anything about this leak that's going to [have a] material impact on our ability to do that,” Earnest said.

The USTR spokesman also said the U.S. would not comment on the validity of the leaked documents but said the interpretations “appear to be misleading at best and flat out wrong at worst.” The US wants TTIP to promote economic growth, boost jobs, increase public participation and transparency in regulatory processes, the USTR spokesman said.

EU officials also comment. In a blog post, European Trade Commissioner Cecilia Malmstroem said “consolidated texts” in a trade negotiation reflect each side's negotiating position and do not represent an outcome. “And it shouldn't come as a surprise that there are areas where the EU and the U.S. have different views,” she said.

Washington Insider: Labels, Definitions and the Law

The New York Times reported that a lawsuit seeking to be certified as a class action has been filed on behalf of consumers in New York and California against the owner of Quaker Oats. Quaker advertises its oatmeal is “100% natural,” but tests found trace amounts of the pesticide glyphosate. The lawsuit calls on Quaker to make amends.

The lawsuit seems sort of weird since the amount of glyphosate detected is really, really small — well below the limit set by federal regulators. However, the lawsuit is aimed at what it calls false advertising. The oatmeal contains something not “100% natural.”

Quaker clearly wants to shift the subject — it argues that the oats used in its products are “grown in an environmentally responsible way,” and face “less risk of pollutants and groundwater contamination,” it says.

The lawsuit, filed in Federal District Courts in New York and California, contends that such statements are false and misleading. “There is nothing unlawful about Quaker Oats’ growing and processing methods,” the suit says. “What is unlawful is Quaker’s claim that Quaker Oats is something that it is not in order to capitalize on growing consumer demand for healthful, natural products.”

Quaker, for its part, argues that it did not add glyphosate during any part of the milling process “but that it might be applied by farmers to certain grains before harvest.” In addition, it says it cleans the oats so that “any levels of glyphosate... are below any limits which have been set by the EPA as safe for human consumption,” the company said.

Turns out that the law firm for the plaintiffs, the Richman Law Group, found glyphosate at a level of 1.18 parts per million in a sample of Quaker Oats Quick 1-Minute, the Times says, roughly 4% of the 30 parts per million that EPA allows. However, Kim Richman, the lead lawyer of the firm representing the plaintiffs, is adamant that the amount of glyphosate is not the issue. It is the claim that these products are 100% natural that offends, and “glyphosate in any amount is not natural,” he said. Quaker thinks the pesticide is not used for weed control, but is increasingly being used as a “desiccant” to dry out crops to speed harvesting.

The plaintiffs are seeking refunds for purchasers. They also are asking that Quaker either be required to reformulate the products or disclose the presence of glyphosate in them.

The Quaker Oats suit is not the only “label problem” being discussed in the press these days. Bloomberg reported recently that Chipotle also may face a class-action suit challenging the chain's representations that its food contains no genetically modified ingredients.

The case is being held up for additional evidence needed to establish a definition of “non-GMO” and whether a reasonable consumer would share plaintiff Leslie Reilly's interpretation that animals raised on GMO-containing feed can't produce non-GMO meat, Judge Marcia G. Cooke of the US District Court told the press.

Ms. Reilly claims that she regards meat and dairy products sourced from animals raised on GMO-rich feed as GMO products, so she expected that Chipotle's ads would mean its animals were not fed such ingredients. She alleges she was duped into paying a premium price for the food.

Chipotle doesn't regard the meat from these animals as GMO products, and says Reilly’s charges are “nonsensical” and not plausible.

What we are seeing is likely a widespread effort to capitalize on claims that imply product purity, but can’t be defined — and which likely mean a continuing source of confusion for consumers, producers, regulators and others.

In fact, there is no official definition of “natural” so it is not crazy to advertise something that way — but, that may prove hard to defend, since trace amounts of many things in foods are hard to avoid especially when the amounts handled are large and the tolerances are small or non-existent.

Similarly, efforts to sell “no GMO” products under the promise of “no GMOs, never, anywhere” is being challenged, too — and, Chipotle’s effort to define that universe unilaterally may be hard to defend.

As long as major actors in the food industry believe they have found a way to achieve a “golden, consumer magnet” label without the hard work of testing and policing its real attributes, there likely will be a “full employment for litigators” aspect to this issue.

It will be important to see what develops from the serious legal cases now emerging and how they impact the use of these important labels — at the same time the nation considers whether to allow mandatory GMO labels by individual states. This is a high-stakes fight producers should watch carefully as it intensifies, Washington Insider believes.

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