Richard Goldfarb
Richard Goldfarb is a partner of Stoel Rives LLP in the Corporate Group. He has a national reputation for expertise in all manner of commercial transactions, with particular emphasis on secured financing and sales and leases of goods. He has been active in the food and agricultural sector for over 25 years, and has done extensive work for clients in the dairy, fruit and biofuels industries, as well as lenders to farmers, packers and agricultural cooperatives.
What I Learned on My Winter Vacation, or Is Water Good for You?
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I spent the last three weeks mainly in Europe, and mainly on a cruise, but unlike Newt Gingrich, I don't purport to have learned anything about Europe's debt crisis, although the Greek, Italian and Spanish governments did all fall the moment we left each country. What I did learn, or was reminded of, is that there is a very different way of thinking in Europe. Instead of blaring out instructions at the security line at the airport, there is just one discreet sign, and if you don't do it right you are admonished for not having read or comprehended the sign. To rebook our flights when we missed a connection due to fog, we were given the instruction to "Like" KLM on Facebook, without the further instruction to then post a message asking to be rebooked (that didn't work for me, by the way, after I finally figured it out).
So I read with some interest the various stories that have circulated around the Internet with titles like "EU Says Water is Not Healthy" and "Now barmy EU says you CAN'T claim drinking water stops dehydration." And this, of course, is to answer yesterday's pop quiz, which you'll recall asked if the following statement is true:
The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.
This was the question asked of a particular European Union agency with respect to a particular European Union law and the answer they gave was negative. Which of course set off a firestorm of laughter and ridicule, followed by a reverse firestorm of alleged common sense explanations for why the EU was right. With respect, pretty much everyone has exaggerated something here, intentionally or unintentionally.
For reference, here are the EU Scientific Opinion and the EU regulation implementing the scientific opinion. I'm afraid they're not quite Shakespeare or even Stephen King.
First, let's parse the words a bit. The claim relates to "water" not "bottled water" or some particular brand of bottled water. The claim also states that "regular consumption" of water "can reduce" the development of dehydration, not that it is necessary for it, or that other beverages or water ingested in other ways are or are not another way to achieve it.
Now, let's affirm what the EU has done and not done. It has stated that in connection with a claim for foods within the EU, this claim is not authorized (20 days after publication in the official journal of the EU). It expressly states that it is "binding and directly applicable in all member states." Thus, the EU official who stated, as quoted in The Express as saying, "Either way the final decision is for member states", was saying something directly contradicted by the regulation's own words. A British bottled water seller has vowed to defy the ban and British health officials have not ruled out taking action against it.
Clearly, the EU has also not said water isn't good for you, or that it's bad for you, or anything of that sort. And there is some question as to whether the law the application was sent in under was the right one; is "dehydration" a disease or a condition, for instance? Yet even the most cogent defense of the ruling I've read, by a professor of nutritiion at Robert Gordon University in Aberdeen, takes liberties with the facts. I'm no nutritionist, and I'll accept that someone can live a perfectly healthy life without ever once ingesting water in its pure form (the comments on most of these articles include at least one person who suggests that beer is a fine substitute). I also accept that pure water alone may not solve all cases of dehydration. But the claim is not that drinking water as such is necessary, or that it is sufficient, but that it is useful. So when the professor, in defending the EU ruling, said, "Also, it could be used to imply that there is something special about bottled water which is not the case," he's simply wrong. If I say that Drug X may lower your cholesterol that doesn't imply that there is something about Drug X that is special compared to Drug Y which may also lower your cholesterol. The same is true of water.
Here's a Pop Quiz
You can't Google this and you can't refer to anything but your own common sense:
Is the following statement true or false?
The regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance.
I'll be back with the "answer" tomorrow.
Arsenic in Apple Juice: Strong Poison or Much Ado About Nothing?
It's the battle of the network talking heads, M.D. division. In this corner, Dr. Mehmet Oz, host of the Dr. Oz Show on FOX, and former Oprah Winfrey contributor. In the other corner, Dr. Richard Besser, former head of the Centers for Disease Control and now chief health and medical director of ABC News. The issue: is there too much arsenic in apple juice marketed to consumers, including kids?
Click on the links above to see the positions of the two sides. Basically, Dr. Oz did a study of apple juice and found elevated levels of arsenic in excess of the amounts the FDA approves for simple bottled water. Weighing in on the side of Dr. Besser (or perhaps vice versa), though, is the FDA itself, which rather loudly is proclaiming "tosh." Or, rather, "Apple Juice is Safe to Drink."
It's hard to wade through the rhetoric here to figure out who's "right", particularly when even Dr. Oz is not recommending anyone give up apple juice because of the risk of arsenic. The FDA and the manufacturers all dispute both Dr. Oz's test results--they both tested juice from the same batches and came up with significantly lower levels of total arsenic--and criticize him for testing only for total arsenic, instead of distinguishing between inorganic arsenic, which is really bad, and organic arsenic, which the FDA says is generally safe and is ordinarily the kind of arsenic found in apple juice (but not in bottled water). Dr. Oz's response doesn't seem to be all that persuasive; if the juice doesn't test for too much inorganic arsenic (or too much total arsenic), does it matter that it comes from countries that use arsenic as pesticides? And arguments about whether apple juice is better for you than eating raw apples are neither made stronger nor weaker if the level of arsenic is insignificant.
Although known to the ancients as a poison, arsenic has many benign uses, including being used in the first effective treatment of syphillis. Along with other poisonous chemicals, it was used for centuries in makeup. The plot of Dorothy L. Sayers novel Strong Poison centers on a murder by arsenic poisoning, where the murderer (SPOILER ALERT!) developed a resistance to arsenic over time, and thus survived while eating the exact meal as his victim. The story was suggested by the tale of King Mithridates, as A.E. Housman wrote in "A Shropshire Lad,"
They put arsenic in his meat And stared aghast to watch him eat;
Today, arsenic is used in semiconductors and light-emitting diodes.
It is not for this blog, of course, to weigh in on the actual merits of the controversy. But we note that comments in the popular media about the safety of food can have a really strong, negative impact on purveyors of food items, whether they are true or not. A strong debate about food safety is always welcome, but the use of sensationalist headlines and a failure to meet scientific arguments head on can leave misleading impressions that can have really significant impacts on real people. Stay tuned.
Introducing David Goodnight
We at the Food Liability Law Blog, and at Stoel Rives, are extremely pleased that David Goodnight, one of our most noted trial lawyers, has agreed to join the team as a point person for food and beverage litigation. David brings a wealth of trial experience as well as an incredibly calm "bedside manner" to the team. He's the perfect person to talk to if there's someone standing outside your door with what appears to be a subpoena or a warrant. He not only will know what you should do, he'll help to lower your anxiety level.
Here's what one of his food and beverage clients just said about David:
Stoel Rives, under David Goodnight's leadership, provided absolutely outstanding legal counsel for our small business. The partners at our firm marveled at his ability to litigate a very complex arbitration case to a successful outcome and then help connect us to the deep resources of Stoel Rives to solve the varied corporate and tax challenges we face as a small business. We were very impressed by the breadth and depth of legal counsel at Stoel Rives and have recommended your firm to a number of our friends who own small businesses and people that were in need of professional legal advice. Truly, we can't thank David Goodnight and the legal team at Stoel Rives enough for what they have done for our company.
And here's another testimonial from a client in the pharmaceutical industry:
I could not have been more fortunate than to have the opportunity to work with David as our attorney to handle a legal matter for my company. His expertise and clear explanation of options, strategies, possible outcomes, and recommendations helped me to make the right decisions for our company. I never felt worried about our position with David on our team. He helped me and our company to take a strong position in a difficult legal matter without putting us at risk to overspend or overextend ourselves at anytime. His calm, strong, and thoughtful attitude made me feel that he was working for our good at all times. Thanks to David, we achieved success in the legal matter that he handled for us. If our company or I am ever in the position to need an attorney with David’s expertise, I would not hesitate to call on him again. He’s remarkable.
David's clients include GE, Amazon.com, International Paper, Qwest Corporation, Century Link and Weyerhaeuser Company. He has been selected numerous times as one of Washington's top 100 lawyers, is recognized by Chambers and selected as a litigation star by Benchmark and Washington CEO. We're extremely pleased to have him join our team.
Please join us in welcoming David to the blog.
A Misleading Headline About Farmers Markets
The Seattle Post-Intelligencer is just a website now, not an ink-and-paper newspaper, but I still read it for local news. My interest in doing so, however, was diminished somewhat when I saw this breathless headline:
Good luck, Ken (and Watch this Space)!
When Ken called me to tell me he was taking his new job at Kellogg's, I immediately thought of this cartoon. Growing up outside Detroit, a highlight of every summer was a trip to Battle Creek, where they let you tour the factory, and at the end would give you samples of the latest Kellogg's cereal. I can guaranty you I ate Cocoa Krispies and Froot Loops before you did. The Cocoa Krispies were served on vanilla ice cream, too, as I recall. That's still good.
When Ken first came to Stoel Rives, he was the second lawyer in our office admitted in Alaska, and unlike the first (me) he had actually practiced there. We first spent time together discussing Alaska projects, but it was our mutual shared love of the Seattle Mariners that was the bedrock of our longstanding friendship. Kellogg's is lucky to have him, even though he's promised that he will not, and his children will not, change their Mariner loyalty. And he's fortunate to be working at a company associated with the kind of joy shown in that old Doonesbury cartoon. Battle Creek makes one think of cereal and box tops traded in for toys, and cereal and box tops make one think of Kellogg's (even though Post is located there, too). It's a great opportunity for Ken to work on food safety inside at such an iconic company, and we wish him well. Plus we expect to hear from him--and even have him blog right here.
While Ken has obviously been a gigantic part of our food liability efforts here at Stoel, he leaves behind both a legacy of people he has trained and worked with, and a culture adapted to the legal needs of the food industry. Watch this space in future weeks as we introduce you to some of the great people who stand ready to serve you!
Japan to World: Remember Me?
Way before Hurricane Irene, the earthquake in Richmond, the liberation of Libya, the death of Osama bin-Laden, the liberation of Egypt . . . way back in the mists of time, or, to be specific, March 11, 2011, there was an earthquake in Japan, and damage to nuclear power facilities that affected the safety of Japan's food supply. We wrote about it here and here.
I have to admit I didn't give a lot of thought to what was going on in Japan, what with all that other stuff going on, but this morning I saw this article in Slate. What the article points out is that both the actual food safety situation, and the psychological food safety situation, in Japan will be issues for a long time to come: years, not months.
By coincidence, I received an email from Second Harvest Japan. And that led to this link to a means of making a tax-deductible donation to provide food to people in the affected areas. So I did that. I'd ask you to consider doing it, too.
UK Foot-and-mouth Disease Study: Impacts for the Future, Not the Past
A May 6 study in Science with the banal title of “Relationship Between Clinical Signs and Transmission of an Infectious Disease and the Implications for Control,” written by a number of scientists at the Institute for Animal Health in Surrey and the Centre for Immunity, Infection and Evolution at the University of Edinburgh, has garnered a lot of publicity. The study involved foot-and-mouth disease, a worldwide scourge for cattle which had had its most virulent outbreak in a developed country in the United Kingdom in 2001.
What is revolutionary about the study may be surprising to non-scientists. What the scientists did with cattle was to study the interaction between infected animals and healthy ones in order to learn exactly when the infected animals were actually transmitting the disease. You may well think, "don't we know this already? Was I coughing into my elbow for no reason at all?" The answer is, we didn't know it at this level of detail, and when fashioning quarantines of people or animals, or mandatory culls of animals, knowing it at this level of detail can save lives and money. As Mark Woolhouse, one of the scientists who co-authored the study, said as quoted in Science Daily,
If you do things like measure virus in the blood, you're taking no account of the clinical state of the animal. People might imagine that the clinical signs of a virus -- the symptoms, such as sneezing -- have something to do with its transmission. But, while there has been a lot of thoughtful speculation on the topic, there haven't been many actual studies.
As a result of the study, for these animals and with this one disease, they estimated that the actual period of transmission was much shorter than had been previously thought, and not necessarily related to the animal showing the outward signs of the disease.
In reading this, I was reminded of a statement in Simon Winchester’s Atlantic, where he points out how much more we know about the surface of the moon than the undersea part of the surface of the earth. The same can be said for the way microorganisms operate in the environment as close as your nose or a cut on your skin. Although it is obviously a different thing to study foot-and-mouth disease for cows, who are unwitting subjects, than, say, influenza on humans, these techniques may be applicable in some ways to study a whole range of diseases, which can refine the public health reaction to a host of outbreaks. The study suggests that if diagnostic tools can be found to pinpoint the moment of contagion, quarantine can be more effective and possibly both shorter and involving fewer subjects, and more destructive means of prevention like culling may be avoided. To quote further from Woolhouse's interview with Science Daily:
We now know that there is a window where, if affected cattle are detected and removed from the herd promptly, there may be no need for pre-emptive culling in the immediate area of an infected farm. We have an opportunity now to develop new test systems which can detect infected animals earlier and reduce the spread of the disease.
This is a two-edged sword, and potentially both edges can be used for good. If we can develop tools to find contagious subjects more exactly, we can take effective steps to quarantine them for just the right period of time. And we would be able to rule out non-contagious subjects that are currently impacted out of an abundance of caution.
Which brings us back to the past. Now that we know what we know, what of the thousands of British cows slaughtered in 2001, including those at farms where the cows showed no symptoms but were located next to the outbreaks? The study certainly suggests that this was unnecessary. But before any British cattle farmers consider calling in a solicitor, however, they need to understand a couple of things. First, public health officials have historically always been given a lot of leeway in terms of making decisions to promote the general welfare. When the cows are showing signs of disease, no one has the time to do a ten-month study; you do what you can right then. Second, and most germane, liability, if any, would be based on the state of knowledge at the time of the incident. It could hardly be treated any other way. This both acknowledges the state of (or lack of) knowledge and encourages the advance of scientific learning. If you try one solution and it seems like it could be improved, you’re less likely to improve it if you might end up being liable for how your first attempt worked out.
Take the "Cold" out of Cold Cuts and Put Back the "Hot" in Hot Dogs
We've blogged a lot about listeria and avoiding it is a good idea, in the neighborhood of "breathing is a good idea." The CDC, in an article reported by Elizabeth Weise in USA Today Wednesday, is recommending a couple of things in connection with cold cuts, including hot dogs, for those over 50, and in particular those over 65, to avoid listeria:
- Reheat them to 165 degrees Fahrenheit just before eating
- Don't keep them in the refrigerator longer than five days after opening
Which kind of takes the "cold" out of cold cuts, doesn' t it?
Ms. Weise's article then goes on to explain what a change this would be in the behavior of people who are often dependent on lunch meats as a relatively inexpensive source of protein, and to question where the source of this advice is coming from. The CDC, for its part, notes that listeria doesn't go away when refrigerated and doesn't give either visual or olfactory clues to its presence. The industry response is that consumers should look for products containing antimicrobials like sodium lactate or potassium lactate.
As the article implies, this advice is counterintuitive for many people. Moreover, as one person quoted in the article points out, the placing of the label of "risky" on such an ordinary item takes away some of life's enjoyment as well. That is not to deny that the risk is real, but it is akin to a "Black Swan" event whose probability may be low but where the consequences of the event occurring are high and can change the way we think. Pregnant women and people with weakened immune systems are at high risk, but constitute a more discrete part of the population that is generally more likely to consider itself in need of health information. I'm 54 and don't think of myself as at extra risk of this kind of food-borne illness.
On the other hand, I haven't eaten any cold cuts or hot dogs since I started getting a reaction to them while still in my 30s.
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.
