Hold the Salt: The Gathering Push for Sodium Reduction in Food Products
By Guest Blogger Tyler Anderson
The issue of sodium content in food has been a hot topic in recent months, as our own Ken Odza has blogged about in reporting on the class action lawsuits filed against Denny’s in New Jersey and Illinois. Now the New York City Department of Health and Mental Hygiene is addressing the issue. On January 11, the Department unveiled the National Salt Reduction Initiative, targeted toward reducing the salt levels in products offered by restaurants and food companies.
This initiative reflects a voluntary goal led by New York City to reduce the salt levels in packaged and restaurant foods by 25 percent over five years. According to the initiative, accomplishing this benchmark would reduce the nation’s salt intake by 20 percent and prevent up to 800,000 premature deaths nationwide and 23,000 in New York City alone. According to Dr. Sonia Angell, director of the Cardiovascular Disease Prevention and Control Program at the Department, the average American adult consumes 3,400 to 3,500 milligrams of sodium per day, while most individuals need about only 1,500 milligrams to satisfy their health needs. The initiative has gathered a wide range of support from parties including the American Heart Association, the American Medical Association, Oregon Department of Human Services, and the Washington State Department of Health.
While the National Salt Reduction Initiative reflects a shot across the bow on the subject of sodium reduction in food products, some industry players have been moving in this direction on their own. However, as a recent Wall Street Journal article points out, many of these food manufacturers have been taking a measured approach with regard to the issue of sodium reduction and the manner in which they communicate such changes to consumers. For example, by next summer ConAgra Foods, Inc.’s Chef Boyardee canned pasta will have decreased its sodium content by roughly 35 percent over the last five years. Campbell Soup Co.’s original flavor of V8 100% Vegetable Juice has dropped its sodium content by 32 percent over eight years. Neither of these brands has made any mention of this decrease in sodium content on its packaging.
The reasoning behind this initially surprising silence is, according to food industry executives quoted in the Wall Street Journal article, that dramatic reductions in sodium content often result in different tastes and consumer dissatisfaction that manifests itself as reduced sales. According to Douglas Balentine, Unilever NV’s North American director of nutrition and health, a gradual reduction in sodium allows consumers to adjust to a less drastic change in taste as sodium content is reduced over time. This allows manufacturers to avoid problems such as those faced by the Kellogg Co. in the early 1980s when the company launched low sodium versions of its popular Corn Flakes and Rice Krispies breakfast cereals. According to Celeste Clark, senior vice president of global nutrition for Kellogg, consumers were not satisfied with the flavor of the products and the new brands were scrapped after four years. This balance between health benchmarks and industry performance will continue to shape the regulation of sodium content as this issue continues to grow in prominence.
Delio v. McDonald's Corp.: The Connecticut Grilled Chicken Case
It took our intrepid docket clerk a few weeks of digging, and finally contacting the plaintiffs' counsel directly, to get a copy of the complaint in Delio v. McDonald's Corp., a case filed in Superior Court in Hartford County, Connecticut on October 6. Plaintiff's counsel is Robert Solomon, a clinical professor at a small New Haven law school called Yale, along with Daniel Kinburn of The Cancer Project.
Unlike the Denny's suit on which both Ken and I have blogged previously, the Conneciticut Grilled Chicken case is remarkably streamlined in its allegations and the remedies sought. The named plaintiffs in the class action suit are two Connecticut residents who consumed grilled chicken products at McDonald's, Burger King and Friendly's stores in Connecticut between October 21, 2006, the date on which the complaint claims McDonald's and Burger King were warned their grilled chicken products were tested to show they contained PhIP, or 2-Amino-1-methyl-6-phenylimidazo[4,5-b]pyridine, a carcinogen, and October 17, 2008, when the plaintiffs allegedly became aware of the cancer-causing effects of grilled chicken. The remedy claimed, beyond what would be nominal damages for the named plaintffis' purchase of grilled chicken products, is an injunction under the Connecticut Unfair Trade Practices Act which would require warning labels to sell these defendants' grilled chicken products. They also seek punitive damages and attorneys' fees, although the complaint's allegations on those points appear thin.
The complaint is quite readable. Missing are claims of violations of a warranty of merchantibility, or similar claims. The plainitffs appear more willing, instead, to focus solely on their judicial attempt to require a warning label, and then only in Connecticut. Without getting into the validity of their claims, or their motives (which have been questioned by others), this is at least a style of litigation that focuses solely on the issue of food safety and an appropriate remedy.
There are some interesting questions in the case, however. One is why Friendly's was added as a defendant. It is not for the usual reason, an attempt to keep the case from being removed to federal court, because Friendly's is incorporated and headquartered in Massachusetts. But the allegations about testing of products relate only to McDonald's and Burger King; there is just an allegation that Friendly's "is assumed to be aware of health issues pertinent to restaurants anywhere in the United States" and and even more conclusory, "Upon information and belief, Defendants' grilled chicken products are prepared in the same manner throughout the United States." What is missing, though, is any direct allegation that anyone has tested Friendly's grilled chicken products and found they contain PhIP.
The broader question is why this claim is appropriate for judicial resolution, as opposed to legislative or agency action. If the plaintiffs are right, one presumes the issue is not limited to McDonald's, Burger King and Friendly's, yet the relief requested, if granted, would apply only to them, and only in Connecticut. One assumes the plaintiffs desire that if granted their relief, at least every restaurant grilling chicken in Connecticut would follow suit in putting their desired warnings in place, but enforcement would only be by additional separate suits that would require proof in each instance. That is cumbersome and inefficient and does not protect the public if the public needs to be protected.
KFC just came out with a huge ad campaign for Grilled Chicken; they are not defendants. TV chefs promote grilled chicken all over television; they are not defendants. Barbecue manufacturers encourage their customers to use their grills to grill chicken; they are not defendants. Chicken producers encourage their customers to grill their chicken products; they are not defendants. I have no idea whether any of these products contain PhIP, but if there is to be a conversation about the health impacts of grilled chicken, I would think they should all be at the table. And with all due respect to the Hartford County Superior Court, I'm not sure one of its judges is the right person to have at the head of the table.
Judge Denies Class Action Status in McDonald's French Fry and Hash Brown Litigation
A lawsuit claiming that McDonald’s deceived the public about ingredients in its french fries and hash browns will not proceed as a class action. A federal judge in Chicago has denied the plaintiffs’ motion for class certification, characterizing the proposed class and subclasses as “too indefinite and overbroad.”
According to the court’s opinion, the potato suppliers who provide McDonald’s with its french fries and hash browns par-fry the potatoes in oil made of 99 percent vegetable oil and one percent natural beef flavor. The beef flavor is partly made from wheat bran and casein (a dairy product). McDonald’s restaurants then fry the potatoes in 100% vegetable oil prior to serving the products to customers. Plaintiffs allege that McDonald’s falsely claimed its french fries and hash browns were gluten, wheat, and dairy-free. They say that they never would have purchased the potato products if they knew that the fries and hash browns were partially fried in oil containing wheat bran and casein. McDonald’s corrected its disclosure in 2006.
The plaintiffs proposed a class consisting of all persons residing in the United States who purchased McDonald’s french fries or hash browns between February 2002 and February 2006 and who, at the time of purchase, had been diagnosed with celiac disease, galactosemia, autism, and/or wheat, gluten, or dairy allergies.
In rejecting class certification, U.S. District Judge Elaine Bucklo noted that none of the plaintiffs has suffered any physical injury from eating the potato products; indeed, she noted that “plaintiffs testified in their depositions that they were quite satisfied with the Potato Products they consumed.” Additionally, Judge Bucklo noted that proving economic damage would be an “evidentiary headache” because the court would be required to review potentially millions of letters proving plaintiffs’ medical diagnoses and the damage to each potential class member would be nominal: between $1.00 and $1.50. Finally, the court ruled a nationwide class action would be unmanageable because state laws at issue in the case vary too much to apply to plaintiffs from across the country.
The case is In re McDonald’s French Fries Litigation, MDL No. 1784.
Ivar's Turkey Soup Recall
Ivar Haglund was a Seattle legend. In these parts, he was known only by his first name, the way you can refer to "Michael" when you're discussing basketball and people know you mean Michael Jordan. His food is at Sea-Tac Airport, Safeco Field and Qwest Field. From 1964 until it was discontinued for this year, he sponsored one of the largest fireworks displays in Seattle on the Fourth of July, which was called Fourth of Jul-Ivar's. Every city, I imagine, has someone like Ivar, but he was ours.
Ivar's is known for seafood. The original restaurant was called Acres of Clams, right on the waterfront. His landmark Salmon House is on Lake Union next to Dale Chihuly's house and studio; you can sometimes see Chihuly with his trademark patch walking past Ivar's.
I had no idea Ivar's made turkey soup until it was recalled.
You couldn't buy Ivar's turkey soup, more particularly "turkey-flavored egg noodle soup with turkey meat", even before it was recalled. It is only sold to institutions. I imagine it is a way of increasing revenue from by-products that might otherwise have to be thrown out or recycled.
So what was wrong with the soup?
Absolutely nothing. Bring it by and I'll happily consume it (though not expecting it to be a high-end product, given the market).
Why then the recall? Because the packaging didn't indicate that it contained milk and milk is a known allergen.
Ordinarily, I might note also that vegans don't ingest milk products either, so the mislabeling might cause an issue with them. And of course Jewish dietary laws prohibit the mixing of milk with poultry. So in both cases, there might have been mislabeling issues unrelated to milk's status as an allergen. However, vegans don't eat turkey anyway, and observant Jews only eat turkey that has been properly ritually slaughtered, as would be evidenced by a rabbi's stamp on the package, which I somehow doubt Ivar's had. Incidentally, the rabbinical kosher stamp here in Seattle incorporates a Space Needle into the K.
