Oh, Honey

It's been a long time! A lot's happened since this blog's been active - I hardly know where to start back in!

This topic isn't strictly legal - not in the usual Fed Reg/SCOTUS/etc. way , but it is about consumer protection and mislabeling. Guess what? That cheap honey in the store? It's not honey! Not technically. Well, sort of.

Most of the honey that you find in the store aisle is ultra-filtered. The filtering process yanks out all of the pollen but leaves in antibiotics and heavy metals. Geekily, the Codex Alimentarius standard for honey decrees that no pollen may be removed unless its removal is an unavoidable side effect of the removal of foreign matter (CODEX STAN 12-1981, para. 3). Significantly, pulling out the pollen makes it impossible to trace the honey, and tracing is important, apparently, because some countries are more likely to be selling adulterated product.

Now, honey producers claim that their honey is purified because that's what the consumers want and what keeps better on store shelves. Mark Jensen, the president of the American Honey Producers Association states: "I don't know of any U.S. producer that would want to do that. Elimination of all pollen can only be achieved by ultra-filtering and this filtration process does nothing but cost money and diminish the quality of the honey... In my judgment, it is pretty safe to assume that any ultra-filtered honey on store shelves is Chinese honey and it's even safer to assume that it entered the country uninspected and in violation of federal law."

I'm not clear how he's getting from "it makes bad honey" to "clearly these people are criminals", but I will assume that they know more about international honey smuggling than I do.

The FDA does test honey and seizes it when they find bad things, like killer antibiotics. The question is how much they're testing. The EU banned imports of Indian honey a year ago due to heavy metal and antibiotic contamination - but according to the Economic Times, 3/4 of Indian honey exports head right over to our American shores.

Here's where things get crazy: antidumping duties are complex but suffice to say, for our purposes, that they apply to US importation of Chinese honey. And people have been looking for ways to smuggle Chinese honey into the US. And folks in the know indicate that a lot of that contaminated Indian honey is probably, actually, contaminated Chinese honey.

Whew! Okay, breakdown: Indian honey is found to be contaminated more often than we'd like. Chinese honey is often contaminated and Indian honey is probably Chinese honey laundered through Indian smuggling rings and ultra-filtered so no one can tell. The US would have an anti-dumping case against the smugglers but for lack of the pollen necessary for geographic determination of sourcing.

I'm not really clear what the big policy solution is here, other than the need for stronger enforcement of already-existing standards. There may be some consumer-advocate action coming down the line against particular companies. The individual solution is to buy local honey from a small producer.

California May Approve Methyl Iodide for Strawberry Crops

It will hardly be a revelation to anyone who reads this blog to learn that I try to keep my produce organic whenever possible. I encourage others to do the same, for both health and environmental reasons. (Health claims can be split into nutritional claims and body-burden claims.) However, some people can't afford to buy organic produce, some don't have access to it, and some don't believe the health claims and don't care about the environmental costs. Pesticides aren't going away anytime soon.

Not all pesticides are created equal, however. California's Department of Pesticide Regulation is considering approving the use of methyl iodide for use on strawberry, tomato, and pepper crops. The notice of proposed decision and extended comment period is available here.

First, let's note that strawberries and peppers are both members of the Environmental Working Group's "Dirty Dozen." 90% of the strawberries tested by the EWG had pesticide residue left on the skin, even after washing, and 61% of the sweet bell peppers tested carried residues of 63 separate chemicals. In part because you can't really scrub a strawberry before you eat it, if you eat non-organic strawberries, you're significantly more likely than not to be eating some pesticide residue.

Now, let's talk about methyl iodide (MeI). MeI was approved for use as a pesticide by the EPA in 2007, over the concerns of research scientists. To quote from a 2007 letter from 50 scientists, including Nobel Laureates, to the EPA:

"[C]hemists who work with this material use the smallest amounts possible and take great precautions to avoid exposure. Because of methyl iodide’s high volatility and water solubility, broad use of this chemical in agriculture will guarantee substantial releases to air, surface waters and groundwater, and will result in exposures for many people. In addition to the potential for increased cancer incidence, U.S. EPA’s own evaluation of the chemical also indicates that methyl iodide causes thyroid toxicity, permanent neurological damage, and fetal losses in experimental animals. EPA’s exposure assessment suggests that the Agency is willing to accept exposures at levels that may cause these effects in humans up to five percent of the time near the application site."

Perhaps the CDPR thinks that there won't be a problem because "no dietary exposure is expected" (pg. 4). Risk evaluation was rather based on inhalation exposure, with dermal exposure being considered negligible (id.). Protection methods proposed include buffer zones (100 and 200 feet, depending on application methods) (pg. 5), tarps, maximum usage rates, and prevention of farm workers from re-entering the field for 14 days after application (pg. 7).

The atmospheric lifetime of MeI is 6.9 days in northern and mid-hemispheric latitudes. This means that, with no wind, proper tarping, and functional hazmat suits for farm workers, inhalation risks may be fairly minimal. This does not, however, mean that all the MeI disappears within 7 days, however: "Gan and Yates (1996) reported half-lives ranging from 13 to 43 days in unsterilized soil, and neutral hydrolysis half-lives in the range of 50 – 113 days have been reported (Mabey and Mill, 1978; Schwarzenbach et al. 1993, DPR, 2002b). Initial investigations into the environmental fate of iodomethane recommended a cautious approach due to the potential for ground water contamination (Gan and Yates, 1996; Gan and Yates, 1997). However, USEPA concluded that 'based on environmental fate data, the residual contents in soils (from field studies), and Tier I and II model estimated concentrations, the Agency does not expect iodomethane to adversely affect ground water.'" The risk characterization goes on to explain how other compounds in the soil will prevent transmission to groundwater (RCD pg. 7).

The risk characterization does not address any potential residue on the fruit itself.

An external Scientific Review Committee has expressed serious concerns about the public health impacts of approving MeI: "The Scientific Review Committee noted in their report: 'Based on the data available, we know that methyl iodide is a highly toxic chemical and we expect that any anticipated scenario for the agricultural or structural fumigation use of this agent would result in exposures to a large number of the public and thus would have a significant adverse impact on the public health. Due to the potent toxicity of methyl iodide, its transport in and ultimate fate in the environment, adequate control of human exposure would be difficult, if not impossible.'”

I'm not a scientist, and I'm not going to pretend to understand all of the degradation pathways which may make MeI less concerning than it's being treated in the blogosphere at the moment. With the concerns of the scientists quoted above, however, the possibility of serious carcinogenic tendencies documented (MeI is listed as a carcinogen under Prop. 65), and poisoning consequences as described here, I'd rather it stay far away from my food supply.

Playing Catchup

I didn't want to do this, but I'm giving into the blogging cliche of saying "oh my gosh, I haven't written on here in so long!" I haven't written in a few months, and certain developments warrant attention, even if that attention is belated.

Bluefin Tuna

I have a tender spot in my heart for the bluefin tuna. My second year in law school I worked at the Harrison Institute for Public Law, Georgetown Law Center's policy clinic. My first project at the clinic was an analysis of US trade sanction law in the context of the bluefin and its impending doom.

I was, therefore, deeply saddened to learn that the International Commission for the Conservation of Atlantic Tunas (ICCAT), which is responsible for setting catch limits (known as "total allowable catches" or TACs) for member states, once again set catch limits far beyond sustainable levels. The current bluefin population is estimated to be around 15% of the size it was when commercial fishing began. Scientists have estimated that an 8000 metric ton/year catch would put the population at a 50-50 chance for recovery. This year's catch was set at 13,500 metric tons. Granted, this is significantly better than 2009's quota, which was set at 22,000 metric tons. ICCAT has to step it up, though, or it will find itself with one less species to "conserve."

If ICCAT's continuing failure wasn't concerning enough, Monaco called for a ban on harvests of bluefin tuna under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) at the Conference of the Parties in March. The proposal, had it passed, would have listed the bluefin under Appendix I of CITES, which forbids trade in the species in the absence of exceptional circumstances. The US, Europe, Norway and Monaco, with the support of the UN Food and Agriculture Organization, called for adjournment of the meeting to discuss the matter prior to a vote, but apparently the delegate from Libya "started 'screaming and calling everyone liars…He said the science was no good and that it was part of a conspiracy of developed countries.'" The proposal was put to immediate vote and rejected. Can't a poor, tragically delicious (or so I've been told) fish get a break?

Ban on Synthetic "Accessory Ingredients"

On April 27, the USDA closed a 2006 loophole in the National Organic Program (NOP) which allowed synthetic "accessory nutrients" to be included in processed organic foods. Specifically, synthetic fatty acids DHA and ARA were being added to infant formula. The oils in question are derived from soil and algae using hexane, a neurotoxic, and have reportedly been linked to gastrointestinal distress in babies.

The NOP explains the creation of the loophole: "[e]stablished under the Organic Foods Production Act of 1990, the National List of Allowed and Prohibited Substances identifies synthetic substances that may be used, and the nonsynthetic substances that cannot be used, in organic production and handling operations. The NOP’s understanding at the time of the decision was that the substances were allowed as “accessory nutrients” under the National List § 205.605(b) Nutrient Vitamins and Minerals, in accordance with 21 CFR 104.20, Nutritional Guidelines for Foods and the National Organic Standards Board Recommendations." The press release goes on to state that "[a]fter recent consultation with the FDA, it was determined that this is an incorrect interpretation of 21 CFR 104.20."

The National Organic Standards Board (NOSB) voted in 1995 to allow "nutrient minerals" which had undergone technical advisory panel reviews in organic foods. The original NOSB recommendation stated that "the use of synthetic vitamins, minerals, and/or accessory nutrients in products labeled as organic must be limited to that which is required by regulation or recommended for enrichment and fortification by independent professional associations." The final rule, however, published in 65 F.R. 80548 did not incorporate the NOSB's language in the same way, which is why the FDA and NOP have chosen to rescind approval of the organic label for the nutrients in question.

The final rule does mention that products labeled "organic" may contain accessory ingredients if the nutrients were not produced using excluded methods (65 F.R. 80577). In this case, however, the nutrients were extracted using hexane, which violates the NOSB standards.

Monsanto Case Argued

For now I simply wish to note that the Supreme Court heard oral arguments in Monsanto v. Geertson Seed Farms on April 27, challenging the 9th Circuit's affirmation of a nationwide injunction against the planting of Roundup Ready alfalfa. The case raises a lot of interesting questions, and I would encourage people to read the briefs at Scotuswiki. I'm looking forward to writing more when the slip opinion comes out.


Finally, for the edification of anyone who's interested in Executive Branch power struggles over food safety regulation, see David Gumpert's piece on why keeping as much jurisdictional authority under the USDA as possible might matter here. I would add that, as the USDA has moved toward support of small producers over time, so too might the FDA. I've noted concern about the pending legislation before, however, and my apprehensions presently remain.

Greener Pastures

We already have some pretty compelling reasons to pick organic beef over non-organic. If nothing else, organic regulations under the National Organic Program require that cows not eat slaughter by-products. (NOP §205.237: Organic livestock producers must provide a total feed ration that is organically produced and handled. Synthetic materials on the National List § 205.603 may be used as feed additives and supplements. Plastic pellets, growth hormones; supplements or additives in amounts above those needed for adequate nutrition and health maintenance; feed formulas containing urea or manure; mammalian or poultry slaughter by-products are prohibited.)

Today, however, the Agricultural Marketing Service of the USDA issued a final rule requiring that National Organic Program producers "provide year-round access for all animals to the outdoors, recognize pasture as a crop, establish a functioning management plan for pasture, incorporate the pasture management plan into their organic system plan (OSP), provide ruminants with pasture throughout the grazing season for their geographical location, and ensure ruminants derive not less than an average of 30 percent of their dry matter intake (DMI) requirement from pasture grazed over the course of the grazing season." 75 F.R. 7154. The "grazing season" is defined as not less than 120 days. The agency listed as one of their motivations a desire to meet "consumer expectations that ruminant livestock animals graze on pastures during the grazing season."

Organic producers were previously required to provide "access to pasture" under NOP §205.239. This phrase had not been clarified, however.

We already know that grass-fed beef is better for you than grain-fed. Organic beef and grass-fed beef still aren't the same thing, but this regulation may bring them a little closer together.

Food Safety and Local Food - At Odds?

There's been some buzz lately about how the pending food safety legislation may impact local growers and producers ability to sell their goods. Fundamentally, the argument is that having standards requiring inspection and lots and lots of red tape will inhibit small producers from selling their foodstuffs.

The text of the bill is available here. (Hint - skip to page 121 - that's where the bill actually starts, past all the strike-outs.) The more concerning parts are on pg. 129 - how is a small producer to conduct in-depth analyses of all potential hazards, and, furthermore, verify the effectiveness of their preventative measures (pg. 130)? The bill does grant small and "very small" businesses more time (pg. 139) - while most businesses have 18 months to comply, small businesses get 2 years and "very small" businesses get 3. Still, for a small producer, even a 3 year window to put all of this together may not make it significantly less burdensome. It seems that simply extending the time frame is not the only concession the bill should be making to small farmers.

There's a strong argument, I believe, that the legislation will promote centralization - which is how we got huge outbreaks in the first place (peanut butter factory has salmonella, now peanut butter all over the country is tainted vs. small producer has salmonella and the small community of their consumers is affected).

Small farmers have spoken up, and Senator Stabenow has introduced the Growing Safe Food Act (S. 2758), which purports to teach farmers how to do their job safely, and "stipulates that existing conservation, biodiversity, and organic farming standards would have to be taken into account in the development of any training program receiving funds." I'm all for expanding Extension programs, but it seems like saying "well, we'll educate you, so the bureaucratic burden on you won't matter" avoids the fundamental issue.

Of additional note, having prior food safety regulations in place has not necessarily made us all that safer. Consider pink slime (sounds delish, no?) which has been more widely used as a result of ammonia treatments in processed beef. Ammonia treatments were supposed to virtually eliminate E coli and salmonella from beef products - but has actually led to increased dispersal of parts of the cow known to be more susceptible to contamination.

Don't get me wrong - I'm all for regulation of large producers. But there must be loopholes to provide for small producers or all the work that has gone into developing local food economies may turn for naught. This would be a step backward for the planet and for all of us who like knowing our farmers and eating truly fresh, picked-when-it-oughta-be food.

Antitrust Times Two

Both of these stories have been out for a while, but I think they still deserve some air time.

Seed Control

The Department of Justice announced that it is investigating a potential antitrust claim against seed companies for their essential takeover of U.S. agriculture. Ten companies account for 65% of seed sales with intellectual property implications. Four companies control half of the proprietary market (seeds with IP protections) and 43% of the common market (public and IP protected seeds). Check out the Farmer to Farmer's report here. As if this weren't bad enough, Monsanto itself controls 90% of U.S. grown soybeans and 80% of U.S. grown corn. When you consider how many forms of processed foods contain some form of U.S. grown corn or soybeans, we're talking about an unbelievably large market share.

The AP recently reported on Monsanto's competition-squeezing practices. The AP report notes concern that, if Monsanto chooses to up its prices, all the cheap processed food that we've gotten used to may not be so cheap anymore. (Maybe then people will eat less bad food. Or we'll just be fat and poor.)

In indirectly related news, Grist recently reported that soybean yields have increased to the point that they are now leading to deforestation in the Amazon. We're sacrificing carbon sinks in favor of cheap food additives AND profiting Monsanto at the same time.

Speaking of soybeans...

Dean Foods

(Dean is the owner of WhiteWave, which produces Silk Soymilk.)

While dairy farmers have posted average losses of $180,000 this year, Dean Foods, the largest dairy distributor in the U.S., has seen profits increase by 30%. As a result, a group of dairy farmers in the Northeast have filed a class action suit against Dean Foods and Dairy Farmers of America. The suit alleges that Dean and DFA monopolized dairy distribution, forcing farmers to sell through them if they wanted to remain in the market. Farmers currently make about $1 per gallon of milk, which is only 2/5 of the actual price.

As things get worse for dairy farmers, it isn't only the loss of small family farms that we have to worry about. When farmers don't make any money, they can't afford to pay their workers well. Barry Estabrook just wrote in The Atlantic Online about the plight of dairy workers following the death of a 20-year-old illegal immigrant who was caught in a manure removal conveyor belt.

Whatever the result of this investigation and this suit, they both emphasize the true costs of cheap food.

UPDATE: The DOJ has filed an antitrust suit against Dean for its 2009 acquisition of Foremost Farms. MarketWatch article here.

Administrative Law Judge Enjoins Organic Violator

Promiseland Livestock, LLC, one of the largest organic cattle producers in the nation, has been suspended from the organic market for four years, following the decision of a USDA administrative law judge.

Complaints were filed against Promiseland by the Cornucopia Institute as early as 2005, claiming that the operation was not feeding organic grain to its cattle, was selling fraudulent organic feed, and was "laundering" conventional cattle as organic.

The decision in the case focused on the requirements in the Organic Foods Production Act and the National Organic Program's regulations regarding availability of records. The Act requires that producers not only keep careful records, but also make them available for inspection by the certifying agent, the USDA, and the governing state officials. (7 USC 6506(b)(1)(B).) The regulations further state that records must "[f]ully disclose all activities and transactions" (7 CFR 205.103(b)(2)) and make such records available for inspection and copying by the proper authorities during normal business hours (7 CFR 205.103(c)). The decision notes that Promiseland initially bought time by switching certifying agents and then, despite a large amount of leniency on the part of the inspectors, simply refused to provide the records requested to the inspectors (pg. 5).

The decision states that "operation under the auspices of the USDA NOP is a privilege rather than a right," and that operators cannot defer inspection by invoking advice of counsel, requesting specific schedules of the documents to be inspected, or requiring that a corporate official be present at the inspection (pg. 12). (Side note: what kind of counsel says "no, don't comply with the very specific and clear regulation"?)

In sum, the ALJ, Peter M. Davenport, did not make a finding that Promiseland actually did the things of which it was accused. As he notes, however, the integrity of the NOP program relies almost entirely on record keeping and access by inspectors to those records. This case took several years to resolve, during which time who knows what sort of "conventional" food Promiseland managed to pass off as organic. Good on the USDA for finally taking action.