Can We Eat Quinoa and Other Passover Dilemmas
It's Passover, a time when Jews think more about their food than we usually do, which is a lot. I was raised in a kosher home where we had four sets of dishes, meat and milk each for chametz and Passover. Every year, cupboards were lined, closets were closed, and the house was prepared for Passover. My mother was not obsessive, even allowing my brother and I to eat Easter dinner once at the home of a close friend; I only partially expected lightning to strike when I ate something breaded.
The title of this entry is a pun, because quinoa is pronounced "Kin Wa". That's appropriate because in Hebrew the word for Passover is also a pun, meaning both "pass over" and "lamb", denoting the sign of the lamb on the doorposts of the Jews designating that the angel of death would pass over their homes on his way to foment the tenth and last plague on the Egyptians. There is a great debate about quinoa, a grain not known in Biblical places in Biblical times. Can we eat quinoa? A New York Times article on Sunday stated the state of the debate. Since I doubt anyone was in a position to take a four-day trek into the Bolivian wilderness to inspect quinoa processing operations in time for a holiday that began Monday night, the decision to eat quinoa or not must be left to the individual conscience. Assuming you know where you can get quinoa anyway.
Which brings up the larger point, as the New York Daily News asks, why do Seders, indeed Passover in general, put the "fun" in dysfunctional? Growing up, I remember Seders with my entire extended family at my great aunt's house, the only time during the year everyone would be together at once, but I also remember how little I understood of the davening in Ashkenazic Hebew at warp speed (the term hadn't been invented yet) and how so many of us little kids would end up being disciplined because we couldn't sit still through the hours of reading the entire Haggadah. The most wonderful Seder I remember was the first one, as an adult and a parent, where we had four children and eight adults (one child per family) and all the children made it through the entire service (much in English, much shortened), each one participating and no one leaving the table. At the end we all agreed to do it again together every year. Which we did until my own son, the eldest of the children, left for college, with additional children, another family, wandering members of extended families and the effects of one divorce bending but not breaking the group. The last time we were all together, the group strained the size of our dining room, but it was a happy strain.
One thing we did every year was read passages from 1001 Questions About Pesach, where we learned that a certain Ashkenazic rabbi believed that someone somewhere would soak fresh garlic in beer, so garlic was not permitted at Passover. And we would talk about these things, adults and children. We resolved the garlic thing against the rabbi's ruling, by the way.
My mother, like many others, has long sought to find ways to make cakes, breads and rolls in ways that meet the strict Passover requirements. Our family has rebelled against this idea. Many Orthodox families will stress over the preparations for the holiday for a month or more before. Our family has resolved this differently. Our view is that the Jews in Egypt got no notice of the Exodus, that was why they didn't have time to prepare. So we eat things that can be hastily prepared; our typical Passover meal is a fritata made with fresh vegetables.
Okay, so what's the "food liability law" angle to this? Well, there was one other key article this week, this from the Wall Street Journal, about the different degrees of preparation certain rabbis insist upon. There are different organizations with different certification standards, each with a different mark. And if you are not someone who accepts a particular mark, it is as though the food contained ham, cheese and, for Passover, French bread. If you invite a particularly observant Jew to your home, and assure him or her that all the food will be Kosher for Passover, do not be surprised if instead of a simple thank you, you are subjected to a cross-examination about every item.
Is there consensus? Yes, it is pretty clear that an unpeeled piece of fruit, which can be washed by the eater himself or herself, wll be acceptable. Better yet, an unpeeled banana, which need not be washed to be eaten.
FDA's Reportable Food Registry Makes a Profound Impact
Here is a link to my article, "FDA's Reportable Food Registry Profoundly Impacts Litigation and the Food Industry," posted this week by the American Bar Association's Litigation Section (Products Liability). The article is a follow-on to lively discussions over the litigation impacts of the federal Reportable Food Registry ("RFR") at the ABA’s recent Food & Supplements CLE at Coca-Cola World Headquarters in Atlanta. The RFR was created by Congress as part of the Food and Drug Administration ("FDA") Amendments Act of 2007 and requires that a company submit a report to the FDA within 24 hours of discovering reportable adulterated food.
Two hot-button issues discussed at the ABA CLE (and in the ABA article) were whether the FDA (1) intends to use the RFR as an enforcement as well as an informational tool, and (2) will move toward the concept of "control" and away from "possession" in interpreting one of the key exceptions to the reporting requirement.
Health Claims Class Actions Set to Explode
Stoel Rives food liability attorney Ken Odza discussed with NutraIngredients-USA.com the significance of a rise in activism from consumer lobby groups combined with food manufacturers pushing the envelope with more aggressive health claims. General Mills recently lost its bid to invalidate class action certification at the Eleventh Circuit of Appeals in a Florida lawsuit involving digestive claims for Yo-Plus, a probiotic yoghurt product.
Odza said that plaintiff attorneys who have made fortunes out of asbestos and pharmaceutical lawsuits are now turning their attention to the food industry, and predicted that “these kind of [health claims] are going to explode.” He added that the Yo-Plus case was “pretty unusual” in that it wasn’t prompted by an investigation by the FDA (Food and Drug Administration) or the FTC (Federal Trade Commission). “Usually you see a warning letter rapidly followed by a class action piggy-backing off of that.”
“Class Action Lawsuits Set to Explode in Health Claims Arena” was published by NutraIngredients-USA.com, April 1, 2011.
Defeating a Consumer Fraud Putative Class Case Early
Last week at the DRI products liability conference in New Orleans, Lara White from Adams and Reese and I presented "Regulatory Compliance Alone Is Not Enough: Understanding and Mitigating Consumer Fraud Claims." Our presentation dealt with putative class claims aimed at the marketing and labeling of food products. A link to the slide-deck can be found here. A link to the paper we submitted at the conference can be found here.
In our presentation we discussed the kinds of consumer fraud claims that have been litigated recently against the food industry and what can be expected going forward.
We also discussed effective strategies for defeating putative class claims at the earliest possible stage. While some preemption arguments in a limited number of cases may still be viable, lawyers and clients should be aware that preemption defenses are eroding. Even when a preemption argument appears to be on ”all fours” it may be worth focusing instead on a challenge to the plausibility of the pleadings.
The U.S. Supreme Court in its Iqbal and Twombly decisions said that a court must disregard conclusory allegations and scrutinize the complaint’s factual allegations to determine whether it nudges the alleged wrong-doing “across the line from conceivable to plausible.” In other words, the complaint must have meat on its bones. In the case of a consumer fraud class complaint, the plaintiffs’ counsel, to survive a motion to dismiss, must include references to evidence or other substantiation for the claim such as consumer surveys or perhaps a government finding. Bare allegations of consumer behavior, nutrition, or damages may be subject to challenge in a Rule 12 motion to dismiss.
Looking for Information and Presentations on FSMA, Recalls and The RFR? Look No Further.
I’ll be speaking at several events over the next two months on the Food Safety Modernization Act (FSMA) and how this comprehensive and far reaching legislation affects the status quo for food companies. Two of these events are free, and all promise to address relevant and critical issues for those involved in the food industry.
a. May 24 at Parker Smith Feek's offices in Bellevue for a discussion of the new FSMA, the Reportable Food Registry and how to survive a food product recall (event was rescheduled from March 22). Registration is free and coming soon. Contact me if you’re interested and I’ll get a spot reserved.
b. April 29 webinar sponsored by AON on FSMA. Link to the free registration is here.
c. May 12-14 Northwest Food Processors Association’s Executive Business Retreat in Coeur d'Alene, Idaho.
d. June 15-16 ACI Food Safety Regulatory Compliance Summit in Chicago. I'll be speaking specifically on "Curtailing Downstream Liability Arising Out of On-Site Inspections: How to Prepare and What to Do Should the Government Come Knocking." If you register by April 15, I can arrange for a discount. Just let me know.
If you can't make these events or would like a customized in-house presentation on FSMA, the Reportable Food Registry, recalls or other food liability topics, please let me know. Also, stay tuned for new blog entries addressing such topics as the Reportable Food Registry (RFR), restaurant menu labeling, and strategies to defeat food marketing/labeling putative class claims.
April 21 Presentation: Changes Coming with New FTC Green Guides
Stoel Rives attorney Jay Eckhardt will give a presentation on April 21 addressing the proposed new FTC Green Guides. The presentation will focus on new FTC guidance and interpretations concerning renewable energy claims and carbon offset claims, as well as claims concerning renewable materials, and the use of green seals and certifications. Going beyond the Guides - the presentation will also review the broader enforcement environment. The program is sponsored by the Sustainble Future and Antitust & Trade Regulation Sections of the Oregon State Bar, and the Green Business Initiative at the University of Oregon School of Law.
For event details and logistics, click here. Admission to the live event in downtown Portland, Oregon is free. A telephone number and passcode will be provided for attendees unable to attend in person.
For more information on reguation of environmental marketing, see the Stoel Rives Green Guides Resource Page.
An Update on Japan from the Perishable Pundit
This really relates to the food situation generally as a result of the earthquake and tsunami, but it was so comprehensive and well-written about the food supply situation it seemed worth linking to. And making a donation to Second Harvest Japan.
The Japanese Nuclear Incident and Food Safety
We've been somewhat reluctant to post anything about this, mainly because the facts seem to change daily. But today I found a very good website from WHO, the World Health Organization, Western Pacific Region, that is updated frequently and has a lot of good information that appears to be presented reasonably. I was particularly impressed by this FAQ, which compares various levels of radioactivity to exposure humans might have in everyday life.
Although I suspect everyone has been exposed to opportunities to donate to relief in Japan, I thought I'd pass along my own favorite group, World Vision. They're already on the ground in Miyagi prefecture.
