Tag Archives: law

Effectively communicating risks should lead to less risky food choices, not laws

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When it comes to social issues I’m a bit of a libertarian hippy. I’ve looked the part (big bushy beard and longer thinning hair); used to play ultimate frisbee (poorly); and, our first-born was delivered at home. I saw The Dead, after Jerry, but I never really got into Phish.

The philosophy I’ve embraced around food safety is let people eat what they want. 

Extension folks like me should provide the best available evidence culled from the literature to help eaters calculate the risks and benefits of food choices. Present the info in a compelling way and then step back to let the individual do their thing.

Hopefully the choice results in the least amount of barf.

As North Carolina moves down the path of adopting the U.S FDA model food code, restaurant patrons will be able to order an undercooked burger, and the restaurant able to serve it, without risking a lower inspection grade. The responsibility to communicate the risks associated with undercooked burgers, and other raw/undercooked animal-derived foods (eggs, poultry, fish) lies with the restaurant. Risk must be disclosed somehow, and a reminder presented to the patron when they order.

Temperature guidance for cooking burgers doesn’t change (the food code suggests 155F for 15 seconds or 160F for 5-log reduction), just the ability for the restaurant to respond to patron requests – with the caveat of the mandatory risk discussion. And the risk dialogue applies to stuff like Caesar salad dressing, hollandaise sauce and sushi.

According to Kathleen Purvis of the Charlotte Observer:

The N.C. Commission for Public Health this week approved the adoption of most of the 2009 federal food code. Among other changes, it would allow restaurant customers to order raw or undercooked foods if the restaurant provides a warning – usually a note on the menu – to remind you it’s dangerous. A similar procedure is already followed in many states, including South Carolina.

“This really does represent the largest comprehensive change in our food safety rules in over 30 years.”
How big is that? It’s so big that when we called chef-owner Tom Condron at The Liberty, a pub known for its burgers, he was actually willing to come to the phone during the lunch rush.
“About time,” he said happily. “The quality of beef and the preparation have come so far. It’s about time North Carolina stepped up. For restaurants like us and others that grind in-house and take all the steps to make sure we get top-quality beef, it’s an important change.”
Michael says adopting the federal food code allows North Carolina to use the latest research in forming its own food safety standards.
“The majority of states use it,” he said. “It’s the most comprehensive standard out there.”
But the big one, Michael admitted, is the standard on allowing customers to request raw or undercooked foods. As it is now, undercooked burgers are often served to customers even though the restaurant isn’t supposed to do it – a sort of “wink-and-nudge” approach to food safety.
What the new regulation would do is put the decision into the hands of the consumer. The restaurant would have to tell you that you’re ordering a food that isn’t cooked to a safe level and it has to tell you that eating undercooked or raw foods puts you at a risk of foodborne illness, such as salmonella.
“This consumer advisory will be more helpful in ensuring consumers know they’re increasing their risk.”
 
I’m not sure what knowing the source well has to do with evaluating whether the primal cuts have pathogen-containing poop on the surface and in-house grinding can spread that surface bacteria just as well as at a processing plant.
 
Regardless of the source or method, undercooked ground beef carry food safety risks; restaurants with a positive food safety culture will communicate this effectively – or won’t serve it at all.

 

Slander applies to Internet: legal warning over food-poison allegations in UK

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A warning for armchair epidemiologists: people who make unsubstantiated allegations about food poisoning in reviews on user-generated websites such as TripAdvisor could face legal action.

“It’s almost impossible to say with any certainty that food poisoning came from any one meal, so making these kind of threats could potentially be libellous,” said Mark Harrington, chief executive of Check Safety First, a company specialising in food hygiene checks.

Mr Harrington told The Telegraph that fake restaurant reviews are being used to blackmail hoteliers. “There have been many reports that customers have blackmailed hoteliers by threatening to post false food-poisoning claims on TripAdvisor. It is scandalous.”

The news follows the Advertising Standards Authority’s (ASA) ruling that TripAdvisor can no longer claim or imply that all its reviews can be trusted.

Kwikchex, a reputation management company that brought the case to the ASA on behalf of hoteliers and restaurateurs, said there were thousands of such allegations of food poisoning in Britain and U.S.

“Almost none are reported to the proper authorities, let alone substantiated,” said a spokesman. “Sometimes the reviewer believes it is the truth, but has not reported it and has no understanding of gastro-intestinal infections.

“They usually just pick on the last place where they ate, when in fact the incubation period for such infections is usually one to two days and sometimes as long as a week.”

The spokesman added that this type of allegation can be used by competitors and disgruntled ex-employees to harm the business.

Listeria outbreak victims go beyond farm to target grocers, auditors

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The three prime targets of lawsuits in the cantaloupe listeria outbreak have just $17 million in liability coverage for more than 130 illness cases that could easily cost more than $100 million, say experts in liability law.

The Denver Post reports the wide gap could make new legal targets out of grocery stores, distributors and auditing labs as victims seek richer funds for compensation, according to product-law experts.

"If they can get the deep pockets in, they’re going to get them in," said Denver lawyer Justin Prochnow.

"I think the case as a whole has the potential to make new law in Colorado," said lawyer Scott Eldredge, a malpractice and liability specialist who also teaches at the University of Denver’s Sturm College of Law.

Seattle lawyer Bill Marler said a third-party auditor that certified Jensen’s safety practices before the outbreak has also been threatened with lawsuits. PrimusLabs of California has $5 million in insurance.

Bob Stovicek, president of PrimusLabs, stands behind his company’s audit as in line with cantaloupe-industry practices.

"Primus has never been sued, nor are we aware of any third-party auditing firms being sued under similar circumstances," Stovicek said in an e-mail. "That being said this is an almost unprecedented tragedy," adding that he is aware lawyers are trying to pull auditors into cases.

With deaths and serious illnesses often producing $1 million to $3 million each in bills and other compensation, the 139 cantaloupe illnesses will produce massive claims, attorneys say.

Attorneys’ fees vary widely but generally are in the range of 15 percent to 30 percent of settlements.

In the listeria cases, attorneys may try to show retailers contributed by not demanding tougher farm audits, by failing to test for pathogens themselves, or by failing to wash the fruit one more time before sale.

The Food Safety Modernization Act: How not to make food safety law

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It’s accepted wisdom among government workers who play hockey that Canada has an outstanding international reputation for designing regulations and is equally terrible at enforcement.

Ron Doering, a former president of the Canadian Food Inspection Agency who practices food law in the Ottawa offices of Gowling Lafleur Henderson LLP, writes in his monthly column that despite all the hype, the new U.S. Food Safety Modern¬ization Act (FSMA) signed into law by President Obama on Jan. 4, 2011, is a model of how not to make food safety law.

The Americans labored long and hard and delivered a mouse.

Under the FSMA, some powers of the Food and Drug Administration (FDA) are enhanced or clarified. For example, the FDA has powers to demand access to and copies of records when there is potential for serious health consequences (Canada has always had this). The FDA has also finally been given the power of mandatory recall after a Hearing (Canada has had this since 1997, without the right of a Hearing); and the FDA has the right to hold food products it has reason to believe are adulterated or misbranded (Canada has always had this).

But FMSA has two fundamental flaws, flaws so serious that the law may end up doing more harm than good. First, the Act provides a broad framework leaving to future regulations the real law. As everyone knows, the FDA is profoundly under-resourced to carry out its exist¬ing mandate — and the House Appropriations Committee recently recommended $285 million in cuts — and yet FMSA requires it to bring in more than 12 Rulemak¬ing regulations and more than 10 Guidance documents. The FDA has admitted it is already behind and that it may take many years before the regulations are enacted.

In the meantime, there will be real legal uncertainty for industry and consumers as the new law will be fully en¬forceable with little guidance on how it will be enforced.

The most serious flaw is the profound disconnect be¬tween the rhetoric about major improvements in food safety and the complete absence of new resources to walk the talk. For example, FDA is required to do 600 foreign facility audits next year and to double the number of audits every year for five years. The FDA has admitted this is completely impossible. As Peter Hutt, the dean of American food law lawyers, has recently observed: “The lack of reality in the statute is staggering.”

The import provisions of FSMA are the most relevant to Canadian exporters and, again, the law is confusing. Under section 301, every U.S. importer is required by January 2013 to carry out foreign supplier verification programs to provide assurances that the imported food meets the same level of public health protection as required of U.S. companies. Yet guidance on how this should be done will not be available on time.

In the meantime, effective immediately under section 303, the FDA has the power to require certification before the product can be imported. Certification can be provided by third-party auditors, but there are no guidelines on how this would be implemented or which entities would be acceptable third-party auditors. At the moment, the FDA is reluctant to accept private-sector audits done, for instance, under the Global Food Safety Initiative, even though they may be the best hope for improving food safety when there are more than 10 million importations of food every year into the U.S. under FDA jurisdiction carried out by over 150,000 importers.

There are lessons here for Canada. Don’t accept the facile argument that the state must move from reaction to prevention. The primary responsibility for food safety rests with industry — the role of the state is to make laws that it enforces, to audit industry’s risk management systems, and to be very good at reacting swiftly and fearlessly to protect the public when there’s a problem. Don’t mislead your citizens by telling them that you’re doing more than you are. And don’t legislate what you can’t enforce.

Ronald L. Doering, BA, LL.B, MA, LL.D, can be reached at: Ronald.doering@gowlings.com

On bullshit and section 5 of the Food and Drugs Act (the Canadian one)***

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Ron Doering, the first president of the Canadian Food Inspection Agency and probably the only one anyone remembers (right, pretty much as shown), writes about food silliness in his regular column for Food in Canada. It’s reprinted below.

In his classic 1986 essay “On Bullshit,” Princeton Uni¬versity professor Harry Frankfurt makes an important distinction between lying and mere “bullshit.” The liar knows and cares about the truth but deliberately sets out to deny or disguise it; the bullshitter doesn’t care about the truth, he is simply trying to impress us or sell us something. The honest man and the liar really care about the facts but the bullshitter isn’t concerned with the facts except insofar as they may be pertinent to his interest in getting away with what he says: “He does not care whether the things he says describe reality correctly. He just picks them up, or makes them up, to suit his purposes.”

Which brings me to food labelling. It is not well under¬stood that Section 5 of the Food and Drugs Act not only prohib¬its false claims on pre-packaged food labelling, but it also makes it illegal to have statements that are “likely to create an erroneous impression.” The Guide to Food Labelling, which sets out the government’s interpretations of section 5 of the Act, does not expressly refer to bullshit, but it comes close when it explains why it is a criminal of¬fence to make such factual statements: they “infer [sic] a false uniqueness and give an unfair advantage to that food.”

In practice, unless there is a pushy competitor complaint, the Canadian Food Inspection Agency does not usually take aggressive enforcement against mere bullshit claims. So, for example, even though green tea is the only pre-packaged food that Health Canada allows to make an antioxidant claim, there has been a shameless proliferation of implied claims through the use of a trace amount of green tea, blueberry or acai, or just “blueberry flavour” to give the erroneous impression that the food has anti¬oxidant qualities. The companies don’t really care about the facts (the science on the real value of antioxidants is not that clear anyway), they just want to get away with creating an erroneous impression.

Bullshit on food labels is everywhere. Other tolerated bullshitting claims common today include sea salt (trying to create the impression it is healthier than ordinary salt — it is not), organic (trying to create the impression that the food is safer, more nutritious, more sustainable — it is not), brown eggs (trying to create the impression they are different nutritionally from white eggs — they are not), and non-GMO (trying to create the impression the product is safer — it is not).

While it is not exactly the same as bullshit, the Ameri¬cans have quite a body of jurisprudence on what they call “puffery” in food advertising. As Professor David Hoffman explains in his learned article “The Best Puffery Article Ever,” the U.S. Food and Drug Administration has concluded that there is no harm in it if rea¬sonable people are not likely to take the statement literally.

Our own Dr. Bill Riedel, re¬tired Health Canada food mi¬crobiologist, writes and blogs regularly on what he calls “truthiness.” He claims, in retirement, to have “found sal¬vation in the academic literature on bullshit.”

For my part, I got into this aspect of Section 5 when the regulator recently threatened to take action against a client when I argued that the enforcement was not war¬ranted because the statement was scientifically true and not intended to give an erroneous impression (the issue was stating the Glycemic Index of the food). The regula¬tor argued back that the scientifically illiterate consumer might nevertheless have an erroneous impression — the test, it says, is not what is implied but inferred. That, I say, is another type of bullshit.

Ronald L. Doering, BA, LL.B, MA, LL.D, is a past president of the Canadian Food Inspection Agency. He practices food law in the Ottawa offices of Gowling Lafleur Henderson LLP, and can be reached at: Ronald.doering@gowlings.com

Rhetoric rules: food safety law battle accomplishes nothing

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Tomorrow’s USA Today has competing food safety editorials and they both get it wrong.

The editorial board of USA Today says regulators lack enough authority to do what’s needed to protect the public, and they need recall authority.

No, regulators have lots of authority and continually mess up.

Tom Coburn, a medical doctor and a Republican senator from Oklahoma, says in this political nosestretcher that “America has the safest food supply in the world, and it has never been safer” and that “the so-called FDA Food Safety Modernization Act of 2010, which the Senate will vote on after Thanksgiving, only expands a disjointed, duplicative and ineffective food safety bureaucracy. “

Coburn says that “for the past 100 years, the free market, not the government, has been the primary driver of innovation and improved safety. Consumer choice is a far more effective accountability mechanism than government bureaucracies.”

Except consumers can’t choose safer food because no one will promote such food at retail. Coburn is having some wet dreams about Reagan trickle-down economics.

Market food safety at retail and consumers could actually choose. Otherwise, it just tastes like urine, trickling down …