Notwithstanding that its very title is a synonym for blandness, White Bread tells a compelling story in an accessible way. Over and over, we see how industry, government, science and the media gang up on their nemeses—home bakers and small-scale bakeries. Muckrakers warned of “disease-breeding bread” and a newspaper claimed, “Dough kneaded with the hands always runs the risk of contagion.” The result was the rise of industrially-baked bread, nearly all white bread.

Bobrow-Strain also tells the story of food evangelists like Sylvester Graham (namesake but probably not the inventor of the eponymous cracker) and how fortifying bread with vitamins was a factor in winning World War II. He reveals that much of America’s current industrial bread is actually owned by Grupo Bimbo, the Mexican baking conglomerate, which owns such iconic brands as Sara Lee, Arnold, Orowheat and Roman-Meal. He describes the counterculture’s push for whole wheat bread and how it has, with help from large-scale bakeries, overtaken white bread in the past few years for the first time. 

The food liability takeaway here is nothing new, but a good reminder in a nice package: there is always a way to question conclusions from government or academia for their potential bias. If you are challenging a government mandate, find the bias and attack it. If you are on the side of the mandate, be ready for a challenge from the other side. The kind of research Bobrow-Strain has undertaken here is available on almost any government food mandate. Ignore it at your peril.

The other one really describes the one story in the book where government had nothing to do with it: the advent of sliced bread. July 6, 1928 (a couple days after my dad turned two and three weeks before my mom was born) was the date the Chillicothe Baking Company in Missouri produced the world’s first pre-sliced bread, invented by Otto Rohwedder. And, amazingly, it was indeed the best thing, the thing that legitimately can be compared favorably to any invention—television, the Walkman®, the VCR, the personal computer, the cell phone. Within weeks, sales of sliced bread soared 2000%. By 1929, it had pretty much swept the country. A bakery in Florida was struggling because it bucked the trend; when it gave in, its sales increased 600% immediately.  By 1936, 90% of commercially bought bread in the United States was sliced.  

Bobrow-Strain asks a legitimate question: why did this innovation so completely sweep the country? Though I bake my own bread and slice it by hand, I think I have the answer. In those days, households often had far more people in them than they do today. Families had more children, and several generations of a family could live in one house (my great-grandparents and a great-uncle and great-aunt lived under the same roof as my grandparents when my mother was born). And people didn’t buy lunch at school or at work; they made it, and it was nearly always sandwiches. So imagine a family of six kids and four adults, all the kids school-age and three of the adults working out of the house. Two slices of toast at breakfast and two sandwiches apiece, that’s about sixty slices of bread a day to prepare in time for people to leave the house in the morning. Sliced bread would be a pretty legitimate labor-savings, and at essentially no cost.  Best thing indeed.

The case involves facts that wouldn't seem to implicate any issues we discuss on this blog.  Simply put, a motorist made an illegal left turn across traffic mid-block in Anchorage and killed a motorcyclist heading in the opposite direction. The motorcyclist crashed into the car, so presumably he didn’t have enough time to swerve or stop.  The unstated but obvious subtext, of course, is that the motorist did not have the resources to fulfill the damages caused. 

So whom did the estate sue?  The franchisee and owner of the land on which a fast food restaurant sits.   Their alleged mistake:  not taking sufficient steps to warn the motorist not to make an illegal left turn into the exit to their drive-through. 

Understand, the case had been dismissed on a Rule 12(b)(6) motion, which presents a pretty high standard, "failure to state a claim on which relief can be granted."  But it's hard to see where the claim is here. 

Mickelsen’s complaint alleges that [defendants] created an entry and exit system that had the effect of enticing . . . patrons to enter the premises by making an illegal turn across two lanes of traffic, that . . . customers in fact regularly used the short-cut, that [defendants] w[ere] or should have been aware of such use, and that this dangerous condition led to the fatal accident.

This is notwithstanding that the left turn involved illegally turning across a double yellow line and that there are, not surprisingly, traffic laws that impose on a driver making any kind of left turn the duty to do so only when no oncoming driver might smash into your car. Neither of those traffic laws relate to whether there is a driveway the illegal and negligent driver is turning into or the identity of the business that driver may be trying to patronize. And just to make it clear, “[b]ecause the width of the curb-cut accommodates only one vehicle at a time, drivers must often roll one tire over the raised curb in completing the short-cut maneuver.” So drivers would need to violate two important traffic laws and roll over a raised curb to undertake this “short-cut.” This, in Alaska, is “enticement” that is sufficient to create a cause of action that must be defended at great cost.  (more after the jump)

Webb established that “[a] landowner or owner of other property must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk.”

Here’s the difference: Webb involved a landowner, in this case the City and Borough of Sitka, which had put out a sidewalk on which the plaintiff had tripped and fallen. There was simply no issue in Webb as to the relation between the plaintiff and the defendant; the defendant was on the plaintiff’s sidewalk when she tripped and broke her hip. The Alaska Supreme Court declared this “controlling precedent” establishing the restaurant’s duty to the motorcyclist who was passing by when the motorist had made its doubly illegal left-hand turn. It is pretty close to impossible to see why.

There was a dissent in Mickelsen and it will not surprise you that it has the better of the argument, by far.

I do not believe that [defendants’] duty extends to [plaintiff], an innocent person with no connection to [defendants] (that is, he was not a customer of [the restaurant] but merely an innocent person driving past the restaurant on a public highway when another person made an illegal turn in front of him, causing the collision and his death). I also think that [defendants] have no duty to prevent a person from making an illegal turn in his wrongful attempt to shortcut into [defendants’] parking lot. To extend a business’s duty to the circumstances of this case will vastly expand the potential liability and attendant costs to businesses all over Alaska. This places an intolerable burden not only on those businesses, but on society at large, because the costs of this greatly expanded liability will surely be passed down to the people in the form of higher costs for goods and services, higher insurance costs, and increased litigation.

The dissenting justice, Justice Craig Stowers, added that the plaintiff was asking the court to

impose liability on anyone who is aware of another’s self-destructive behavior, has any ability to prevent that behavior, and fails to save the injured party from his or her own conduct. Such a holding would transform the law of negligence from a means whereby a person may recover for losses caused by the danger which another’s unreasonable behavior created, to a mechanism permitting persons injured by their own conduct to compel any who failed to prevent that conduct to share in the burden of their negligence.

But that language, Justice Stowers pointed out, came out of another Alaska Supreme Court case, one that the majority had distinguished because the “self-destructive behavior” was that of the plaintiff (who was injured while sledding on a defendant’s street). But the principle it represents, that we do not impose tort liability on people without there being a clear duty to protect other people from foreseeable harm, is far more germane to the case than Webb decision, which did not have to consider those issues at all. 

To return to Mr. Kaufman, imagine that his lawyer had been killed while jaywalking to greet someone who turned out not to be him. In Alaska, his heirs might well have been able to get past as 12(b)(6) motion to sue Mr. Kaufman for his audacity in permitting another person to look like him.  

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. 

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.

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.

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.

Food hazards found at farmers markets, officials want fee hike

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!

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.

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. 

• 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. 

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. 

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. 

I thought of that as I read Jim Prevor’s report for The Perishable Pundit on “Farmers Market Fraud”, which included a follow-up as well.  Without question, farmers markets are opening rapidly all over, and it is not particularly surprising that some of the participants are not following the rules, leaving the honest participants with a bad name and consumers with legitimate concern that they are not getting what they bargained for in their farmers market experience. Apparently, similar research in Detroit indicated the same pattern as in Los Angeles.

In the spirit of the kind of people parodied on “Portlandia,” weren’t these supposed to be the good guys?

As it happens, I am related (by marriage, but we are far closer friends than the degree of relation) to Jennie Schacht, the author of the award-winning “Farmers Market Desserts.” In researching her book, Jennie visited farmers markets all over the country, and, she tells me, “I never had a producer refuse a visit to their farm and what I saw every place I visited, around the country, appeared authentic. (I didn't verify pesticide levels or other claims.).” For her work, of course, she needed to take the steps that Fred and Carrie parodied on “Portlandia.” What is the ordinary, non-cookbook author, non-obsessed consumer to do?

California is considering steps to deal with this issue, including raising the fees charged to farmers market participants from 60 cents to four dollars per market day, in order to increase the number of inspectors. One critic of the raised fee contends that dollars will not necessarily increase expertise. While Jennie Schacht suggests getting to know your producer can help, one of the letter writers to the Perishable Pundit notes that Bernie Madoff looked all his victims in the eye as well. 

In the end, I think the best regulation would occur by self-policing. This is not some free market solution, but rather a recognition that every honest seller in the marketplace has an incentive to weed out the bad apples, in this case sometimes literally. I recognize that farmers who attend farmers markets have a lot to do in the course of a day, and policing their neighbors’ stalls isn’t on their agendas. Market managers have a lot of work to do as well. But it is the honest farmer who will lose most if the reputation of farmers markets in general are diminished. 

Other, of course, than someone like me, who is already in mourning because the last of the year’s organic carrots have disappeared from the Ballard Farmers Market.

The breadth of this claim is astounding.  To see why, you must understand two things.  First, this is a class action. CPSI and its lawyers seek to represent “All Customers who bought Recalled Products, and whom Safeway did not advise that they bought Recalled Products, for a period of four years prior to the date this complaint is filed until the date of class certification.” “Recalled Products” are those subject to a Class I recall from the FDA or the USDA. I presume the four years states the applicable statute of limitations. If the class were certified, these lawyers would represent everyone in the class. 

Second, the count of the complaint that deals with the warranty of merchantability has nothing to do with the requested relief that has garnered so much publicity. It is unrelated entirely to the use of the Club Card to notify customers about recalls. It is a straight breach of contract action. Put simply, these lawyers purport to represent every single person who had a Safeway Club Card, for the value of their Recalled Products. The complaint expressly makes no claim for any injury other than the economic injury of a breach of contract; no one is alleged to have gotten sick, let alone died. Indeed, one of the named plaintiffs consumed some of the eggs subject to recall, apparently without adverse health effects.

Moreover, and this is important to understand, these are not Safeway’s recalls. They are in nearly every case recalls instituted by someone up the food chain. The class consists of everyone Safeway didn’t notify, but the named plaintiffs in fact became aware of both recalls through other means: news reports, a letter mailed by another retailer who had sold similar products, a “neighborhood listserv.” Upon becoming aware of the recalls, there was nothing stopping either plaintiff, who, according to the very complaint their lawyers have filed on their behalf, “frequently shops at her local Safeway store”, from asking for a refund. I suspect Safeway would have granted it without complaint or hassle. 

But no. Instead, we need a class action. Who is in the class? Everyone who never got notice from Safeway of the recalls, even though they may have (like both named class plaintiffs) received notice from other means. The parties actually responsible for these recalls purposely put that information out onto the news channels; blogs like this one tend to spread the word gratis when recalls occur. Anyone concerned about the food they buy can check numerous news sources, including the FDA’s own website, for news about recalls. I often walk into the office in the morning to be asked, “did you hear about the latest recall?” This stuff isn’t hidden under a pillow somewhere. 

By being subjected to the class action, though, Safeway may be in a dilemma. It really doesn’t want to pay consumers twice (nor should it have to). But how is Safeway, now that the class action has been filed, to know that it will not be required to pay twice, once when the consumer comes to the customer service desk at his or her local store and again when the class action is settled? The answer is that it can’t. Which may make Safeway less likely to pay the consumer at the customer service desk. Is that really the result that is in the best interests of the purported class?

My guess, however, is that this won’t happen. Both because Safeway doesn’t want to have a few thousand store managers explaining to real live customers that some lawyers in California make it impossible to refund your two dollars, and because Safeway’s lawyers, despite the unmitigated chutzpah of CSPI in claiming the right to represent all Safeway’s customers wherever located in connection with their refund rights, think the chance of class certification on this issue is of vanishingly low probability. 

Their attitude toward food may be a little different from what is ordinarily thought of as a fast food.

Healthful food choices are a natural for us. We use local, vegetarian-fed and antibiotic-free beef in our burgers, cage-free eggs in our breakfast items and our salads feature mixed greens with sustainable, local ingredients such as smoked salmon and Oregon hazelnuts.

As I entered their Kelso, Washington store last week, after being greeted by literally every member of the staff, I ordered my Rosemary Chicken Sandwich and Cherry Chocolate Shake, paid and was handed my receipt This is quite different “fast” food, as both items were individually prepared, and I had time to look down at my bill (pictured). Because I am wired that way, the bill immediately brought to mind the restaurant food labeling provisions of the Patient Protection and Affordable Care Act, about which I blogged last year. 

The PPACA contains a requirement that retail food establishments with 20 or more locations doing business under the same name (even if under different ownership, such as a franchise) post certain basic nutrition information for their “standard menu items.”   While the FDA has recently withdrawn guidance on how to conform to the statute, it claims it will propose regulations by the March 23, 2011, statutory deadline.

Burgerville appears to have made a virtue out of necessity. As you examine the bill, you will see two things. First, my food order is compared to two different daily caloric intake amounts, 2000 and 2500 calories. Second, Burgerville notes on the bill that I have the option of ordering my shake with yogurt instead of ice cream, which would cut the calories by about 45% and the fat intake by 90%. With this information, I can make choices, both on this trip to the restaurant and next time. This time, I rode my bike after dinner for eight hard miles. Next time, I’m ordering the yogurt shake.

Note: next time was the very next day, as I stopped at the Centralia, Washington store and indeed asked for my shake to be made with yogurt. Not only did I save the calories and fat, but the extra tang of the yogurt worked really well with the chocolate and cherries. 

I suppose that makes me a bit of an anecdotal counterexample to the study published last month in the American Journal of Preventive Medicine, which indicated that ordering patterns were no different at Taco Time restaurants in King County, Washington, where caloric labeling is mandatory, and their stores in other jurisdictions. 

Everyone, of course, has been barraged with Christmas movies the last month, but I am a big fan of New Year's movies.  "The Apartment" is probably the best film that culminates on New Year's, but the 1983 Dan Aykroyd/Eddie Murphy classic "Trading Places" is set up so that New Year's Eve is a huge part of the plot.  For those of you who haven't seen it (and if you haven't, it will be on Comedy Central on January 2), Aykroyd is Louis Winthorpe III, a smug Philaelphia commodities broker whose bosses contrive to have him trade places with street person Billy Ray Valentine (Murphy) to settle a wager the stakes of wihch are one crisp dollar bill.  When the boys learn they've been taken for a ride, they team up and try to steal a key market report from the bosses' operative during a New Year's Eve train ride from Washington to Philadelphia.  Hilarity ensues, unless you're the guy who ends up in the gorilla suit. 

In one scene, Valentine uses his street smarts to explain to the Duke Brothers (played by Don Ameche and Ralph Bellamy) why the price of pork bellies will drop:

Okay, pork belly prices have been dropping all morning, which means that everybody is waiting for it to hit rock bottom, so they can buy low. Which means that the people who own the pork belly contracts are saying, "Hey, we're losing all our damn money, and Christmas is around the corner, and I ain't gonna have no money to buy my son the G.I. Joe with the kung-fu grip!

As you may have noticed, bacon is quite trendy.  Celebrity chefs are covering bacon with chocolate and almonds. My own neighborhood ice cream place serves maple ice cream with chunks of bacon in it over oatmeal.  And of course, the fast food places are in a space race to put more and more slices of bacon on a burger, such as the Baconator at Wendy's, the triple version of which features nine strips of applewood smoked bacon.  The result is that nobody needs to freeze those frozen pork bellies for the summer; they're in heavy use year-round.  Thus, a trader named George Segal (not the actor who was in "The Last Married Couple in America" with Luis Contreras, who was in "48 Hrs" with Eddie Murphy, according to the Oracle of Bacon) is, for the first time since he started in 1972, no longer holding any pork belly contracts because there were none to trade.  Possible fixes include allowing the contracts to be settled with cash instead of with 20 tons of pork bellies, and allowing contracts for fresh as well as frozen pork bellies. 

The difficulty that the CME and traders like Segal, as well as producers of pork bellies and processors of bacon, face is price discovery.  Instead of a vibrant traded market price, they are left with voluntarily reported prices from the Agricultural Marketing Service.  It is ironic that it was easier to get a reliable price for bellies in 1983 than it is in the Internet Age.

The second piece of news involves the commodity at the center of "Trading Places," frozen concentrated orange juice.  This morning, I woke up to a message from a friend who is visiting her parents in Broward County , Florida:  "Frost on the windows here in Southern  FLA."  And, not surprisingly, the cold weather in Florida has led to the Wall Street Journal headline, "Florida Cold Heats Up OJ Prices."  In "Trading Places," the plot revolves around the theft of a crop report on frozen concentrated orange juice to be issued by the Secretary of Agriculture on the first day of trading after New Year's.  One thing that has changed since 1983 is that Florida's weather is actually less critical to the FCOJ market than it was; Brazil is the number one producer of FCOJ in the world (California oranges are mainly consumed by eating).  Thus, that crop report might not have quite the impact it did in the movie, although the movement of prices (including the highest price in nearly four years) caused by the Florida freeze might argue otherwise.

Somewhat unrealistically, both Winthorpe and Valentine have trading privileges at the New York Mercantile Exchange, with their three-letter identification badges.  I proudly own a similar badge, given to me at the Chicago Board of Trade when I was on the floor for a day after taking a seminar in hedging corn futures.  No matter what our hand gestures, though, no one was going to write us a ticket.

As Eddie Murphy's character, disguised as an exchange student from Cameroon, says, "Merry New Year!"

Last Friday, the FDA Food Safety Modernization Act, then known as S. 510, was as dead as Don Van Vliet, a/k/a Captain Beefheart, the legendary musician who passed away that day. Thus, the FDA had no more than the same power it has always had: publicity and the right to shut down a facility, but no power to force a recall. That day, Sally Jackson Cheeses of Oroville, provided evidence that linked its artisanal cheeses to outbreaks of E. Coli O157:H7, agreed to a recall of all of its products. 

As we know, on Sunday, the food safety bill was resurrected in an unusual weekend session of the Senate and was passed today by the House and heads to President Obama’s desk for a certain signature. The new act contains a section, effective immediately upon the President’s signature, which gives the FDA mandatory recall authority for the first time in its history. While that section includes a provision (which will become Section 423(a) of the Federal Food, Drug & Cosmetic Act) calling on the FDA to give companies a chance to effect a voluntary recall before using its mandatory powers, the difference between wielding a velvet glove and a velvet fist is significant. 

Thus, a tiny cheese manufacturer in an isolated Washington town, through an unexpected chain of events occurring nearly 2700 miles away, may have become the last food manufacturer ever to agree to a voluntary recall without the FDA’s power to order it to do so looming in the background.