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The Revolving Door: How a Florida Insurance Commissioner is Going on a Lucrative Career as an Insurance Lobbyist — Likely at the Expense of Consumers

Rock n’ Play Recall Demonstrates How Secrecy Provision of Law Hides Product Dangers from Consumers

Group Letter to Chairman Gensler Spotlights Climate Risks in Private Markets

In the Face of FDA Inaction on Harmful Food Dyes, California Offers Hope of Protecting Consumers

By: Thomas Gremillion, Director of Food Policy

For far too many parents, navigating the food system feels like traversing a minefield. CFA is working to address one source of this anxiety: artificial dyes.

For decades, researchers have suspected that several artificial dyes contribute to hyperactivity and attention deficit disorder in children. These suspicions were recently confirmed by the California Office of Environmental Health Hazard Assessment. After comprehensively and systematically reviewing the evidence, the agency concluded in 2021 that several dyes “cause or exacerbate neurobehavioral problems in some children.” Specifically, the agency’s report fingers the color additives FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.

Last year, CFA joined consumer advocacy partners in petitioning the California Department of Public Health (CDPH) to require a warning label on dye-containing foods and supplements to alert consumers about the adverse effects these dyes have on children’s neurobehavior. Earlier this month, I testified with other petitioner representatives, and experts including toxicologists, epidemiologists, and pediatricians, at a public hearing that CDPH held on the group’s petition. We sought to counter industry trade groups’ and paid consultants’ arguments against acting on the science.

One common argument was that these dyes are safe because the U.S. Food and Drug Administration (FDA) has approved them, and FDA is the expert. However, FDA’s approval of these dyes happened in the 80s or even earlier, before the dawn of the personal computer, never mind the genetic analysis technologies that have shed light on why food dyes appear to cause hyperactivity in some children, and even appear to have as large an effect on children’s behavior as lead does on children’s IQ.

Industry has argued that FDA’s ongoing market surveillance should suffice to ensure public protections against these food dyes remain up-to-date. However, FDA’s market surveillance of the harms caused by these dyes has let consumers down, in part because FDA is underfunded and under resourced. The entire FDA Office of Food Additives Safety—responsible for regulating more than 10,000 chemicals in food and a multi-billion-dollar industry—has just over 100 full-time technical staff. And it does not currently have a director.

According to a 2013 study of over 4,000 chemicals purposely added to food such as flavors, preservatives, and sweeteners, less than 22% had sufficient data to estimate how much is safe to eat, and less than 7% were tested for developmental or reproductive effects. FDA may not even know that a chemical is in the food supply, thanks to the Generally Recognized as Safe (GRAS) process, under which food companies have been allowed to determine themselves that over a thousand food chemicals are Generally Recognized as Safe.

Unfortunately, FDA is not going to stand up for consumers on food dyes, but California can. And one big reason for doing so is to establish a level playing field for companies that want to do the right thing. A few years ago, several large companies including General Mills, Kellogg, and Mars made bold pledges to remove artificial colors from their products, but most of them have not followed through. And no wonder! If a company’s competitors can save money and otherwise take advantage of using these chemicals, it’s hard to make the business case for change.

In Europe, public health authorities have required a warning label on most dyed foods for 15 years. The experience of many leading U.S. companies “across the pond” shows that reformulating foods to remove dyes is feasible and economical. If we arm American consumers with accurate information about food dye harms, we can be confident that it will move the market on this issue just as it has in Europe. Consumers have a right to make educated choices about what foods they purchase and consume. If the FDA can’t stand up to protect consumers, particularly young children, from harmful food dyes, then individual state public health departments should. California, CFA urges you to lead by example and put consumers first.

The Revolving Door: How a Florida Insurance Commissioner is Going on to a Lucrative Career as an Insurance Lobbyist — Likely at the Expense of Consumers

By: Michael DeLong, Insurance Research Advocate

The fifty-one state Insurance Departments are responsible for regulating insurance, protecting consumers, and making sure that insurance rates are not excessive, inadequate, or unfairly discriminatory. Some commissioners are determined to help consumers. Others, less so. Some regulators seem to treat their time in government as a slow-moving job interview for a high-paying positions within the insurance industry. They exit their Department of Insurance through the “revolving door” that connects the agency with the industry, taking lucrative jobs as lobbyists or “government affairs” executives in the insurance sector after they leave their public post.

As the doors are revolving, we also see former industry staff moving into the public agencies as well. The problem is not just limited to the Commissioners—top-level insurance department staff also pass through too often, and it can result in an unhealthy relationship between the insurance industry and the departments that are supposed to oversee them. Not surprisingly, the revolving door can undermine consumer protection and enforcement of the laws. If an Insurance Commissioner plans to get a job at an insurance company after they leave office, they may avoid taking actions that would upset that company. Regulators may even take actions or make decisions enabling them to cash in later, when they join insurance companies that they have regulated. Insurance companies, in turn, hire former Commissioners and regulators to gain personal access to government officials, to seek favorable legislation and regulations, and to get inside information on what Insurance Departments are doing.

A recent poster child of this phenomenon is former Florida Insurance Commissioner David Altmaier, who abruptly resigned late last year to join an insurance lobbying firm.  For fourteen years, Altmaier worked in the Florida Office of Insurance Regulation (OIR), and from 2016 to 2022 he was Florida’s Insurance Commissioner, a period marked by hostility to consumer advocates and consumer protection, and, as his last year concluded, the extraordinary lapse in regulatory oversight of insurers that were low-balling and defrauding policyholders dealing with Hurricane Ian claims.

In late 2022, Altmaier urged the Florida legislature to pass sweeping law changes, claiming that they would stabilize Florida’s troubled property insurance market. The Florida legislature held a short special legislative session in 2022 and enacted these reforms, which created a new layer of reinsurance funded by the state, banned one-way attorneys’ fees in insurance claims litigation, and made it harder for policyholders to bring litigation against insurers.

In a December 2022 letter to Governor Ron DeSantis, Altmaier praised these new laws and wrote that “we have worked with the Florida Legislature to meet historic challenges with historic reforms.” But some observers were more skeptical, doubting that the reform would reduce property insurance costs. In a Twitter post, Florida House Democratic spokesman Jackson Peel asked, “What do you think will be announced first: The next insurance company leaves Florida’s collapsing market or his new high paying job in the insurance industry?”

The answer was the latter, with a slight twist: Altmaier obtained a high paying job at a lobbying firm, as a lobbyist, excuse me, “advocate,”  for the insurance industry. His new is quite explicit about the value of the revolving door: “I leverage over a decade of experience to help insurance and insurance-adjacent entities navigate the complex world of regulation and regulatory policy.”

In that same letter mentioned earlier, Altmaier submitted his resignation, which took effect on December 28^th, 2022—only a couple of weeks later. Why did he depart so quickly? Because on January 1^st, 2023, a new anti-lobbying law took effect. Before then, former Florida agency heads (including former Insurance Commissioners) would be banned from lobbying for two years, and this law extended that lobbying ban to six years. By resigning before the law became operational, Altmaier could avoid this extended ban.

And in March 2023, Altmaier announced that he had a plum new job: he would be joining the Southern Group, the top-earning lobbying firm in Florida. Florida Politics reported that Altmaier “will be utilizing his network of contacts to build a national insurance advisory practice.” Insurance Journal reported that the former Commissioner “will be ‘an extraordinary effective advocate’ at a time that insurance companies need those skills the most.” With no sense of irony or impropriety, the Southern Group’s website announces that “Today, the sharp lines between government, business, and constituencies have blurred.”

In his new job, Altmaier is taking advantage of another loophole in Florida’s anti-lobbying law. The law bans Florida agency heads from lobbying their former agencies—but not from lobbying Florida legislators. Altmaier’s salary is not listed. But we suspect that his new position is quite a bit more lucrative than his old position as Florida Insurance Commissioner.

To summarize: former Florida Insurance Commissioner David Altmaier, in charge of regulating insurance and safeguarding consumers, abruptly resigned from his job, where he was hostile to consumers and cozy with the insurance industry. And not even three months later, he joined Florida’s largest lobbying firm to advocate for insurance companies by using his former contacts and knowledge. This case is a perfect example of the revolving door, where some insurance regulators move seamlessly from public service to very profitable lobbying and influence-peddling.

We invite Florida’s new Insurance Commissioner, Michael Yaworsky, to chart a different path and pledge not to work for the insurance industry when his time at the agency ends.

Rock n’ Play Recall Demonstrates How Secrecy Provision of Law Hides Product Dangers from Consumers

By: Courtney Griffin, Director of Consumer Product Safety

The Consumer Product Safety Commission continues to find recalled Rock n’ Play sleepers listed for sale on Facebook Marketplace, despite representations from Meta, Facebook Marketplace’s owner, that it would take steps to prevent the re-sell of recalled products on its platform.  In his second letter to Mark Zuckerberg, CEO of Meta, CPSC Chair Alex Hoehn-Saric once again urged Meta to do more to stop the illegal sale of recalled consumer products.

In another letter to Mattel and its subsidiary Fisher-Price, Hoehn-Saric also urged the company to take additional steps to protect babies from the hazards posed by recalled Rock n’ Play infant sleepers.  Hoehn-Saric called on the company to announce the recall again and do more to remove Rock n’ Play sleepers from the resell market and homes. According to the CPSC, the average listed price of a Rock n’ Play sleeper on the secondary market is $25, more than what some consumers will receive if they act on the recall.

The CPSC issued a recall on Rock n’ Play sleepers in April 2019 and again in January 2023 because of poor results.  The sleeper has been linked to the deaths of almost 100 infants, with at least 8 occurring after Fisher-Price recalled the product. In a letter to members of Congress in March 2023, Fisher-Price stated that it has “completed more than 465,000 cumulative corrections related to recalled Rock n’ Play sleepers, including product in manufacturer inventory, retailer inventory, and with consumers.”  This amounts to less than 10% of the 4.7 million recalled Rock n’ Play sleepers.

In addition to highlighting how easy it is to purchase dangerous recalled products, the Rock n’ Play saga also demonstrates how dangerous products flood the market because of the unique restrictions that govern the CPSC’s public disclosure of information.  Section 6(b), 15 U.S.C. § 2055(b), a provision of the Consumer Product Safety Act (CPSA), prohibits the CPSC from disclosing information about a consumer product that identifies a manufacturer or private labeler unless the CPSC has taken “reasonable steps” to assure that the information is accurate, the disclosure is fair and reasonably related to effectuating the purposes of the CPSC.  As such, the CPSC must provide the manufacturer or private labeler with an opportunity to comment on the accuracy of the information, and the CPSC may not disclose such information for at least 15 days after sending it to the company for comment.  The reality, however, is that the process between the CPSC and manufacturers or private labelers often takes many years before the information can be disclosed to the public.

In the case of the Rock n’ Play, it remained on the market for a decade despite infant deaths tied to the product.  The CPSC issued an alert in May 2018 regarding “infant deaths associated with inclined sleep products,” but did not identify specific products in a way that was helpful for most caregivers.  However, it was an accidental disclosure of information that prompted the events leading to the Rock n’ Play’s recall.  While reviewing data it requested from the CPSC, Consumer Reports found several infant fatalities linked to the Rock n’ Play and similar products.  Under section 6(b) that data should have been redacted but the agency had made a mistake and released the information to Consumer Reports.  By the April 2019 recall, approximately 4.7 million Rock n’ Play sleepers had flooded the market.

Recently the CPSC issued a Supplemental Notice of Proposed Rulemaking to update the regulation interpreting section 6(b).  The Supplemental Notice of Proposed Rulemaking did not in any way repeal or significantly alter the main restrictions of section 6(b), but the proposed changes would streamline and modernize the regulation interpreting the statute.  CFA submitted public comments supporting the minor changes, but stated that repeal of section 6(b) is necessary to promote consumer safety and transparency.

Senator Richard Blumenthal (D-CT) and Representative Jan Schakowsky (D-IL) reintroduced the Sunshine in Product Safety Act in March 2023. In a related press release, Senator Blumenthal said: “This measure removes the regulatory straight jacket that deprives consumers of vital product safety information. Current regulatory requirements give companies the right to veto vital CPSC warnings and deny the truth to consumers. By repealing Section 6(b), our measure would free the CPSC to swiftly warn the public about hazardous products and require companies to put people ahead of profits.”

In the same press release Congresswoman Schakowsky said, “Section 6(b) of the Consumer Product Safety Act prevents the Consumer Product Safety Commission (CPSC) from telling the public about potentially dangerous products without the company’s permission. Simply put, it protects companies over consumers. This cannot stand.” 

Blumenthal and Schakowsky previously introduced the Sunshine in Product Safety Act in April 2021 after reports that Peloton obstructed the CPSC’s investigation following injuries and a child’s death.

CFA strongly supports the Sunshine in Product Safety Act, stating in the bill’s press release: “It is time for Congress to stop allowing companies to put the lives of consumers, especially our most vulnerable, in danger.  We applaud Senator Blumenthal and Congresswoman Schakowsky for valuing transparency and the lives of consumers by introducing the Sunshine in Product Safety Act. It is past time to repeal the gag order that is Section 6(b) and allow the Consumer Product Safety Commission to do its life-saving work to the best of its ability.”

Caregivers have an expectation that the products they purchase, especially products for babies and children, are safe.  Yet the CPSC cannot share critical, sometimes life-saving information.  CFA and other product safety advocates support the Sunshine in Product Safety Act for this reason.  It is important that we let our elected officials know that companies should not be able to hide or delay critical safety information.  Consumers deserve timely information about the potential hazards in their homes and babies deserve to sleep in safe products. It is imperative that Congress passes the Sunshine in Product Safety Act to protect consumers.

Group Letter to Chairman Gensler Spotlights Climate Risks in Private Markets

By: Dylan Bruce, Financial Services Counsel

On April 4, a diverse group of organizations, including investor protection and shareholder advocates, climate advocates, and businesses, wrote to Securities and Exchange Commission Chairman Gary Gensler to highlight how private markets contribute to and exacerbate climate-related risks for investors and our financial system and what the Commission must do to meet these growing risks.

Specifically, the letter discusses the troubling and emerging trend of public companies shifting carbon-intensive, “dirty” assets from their balance sheets into private markets, a practice known as “brown spinning.” These transactions, which can effectively remove high emitting assets out of publicly available disclosures and into the shadows of private markets, are increasingly being employed in emissions-intensive industries, often to meet seemingly altruistic climate goals. Regrettably, the net effect is that the climate impacting assets and activities continue unabated while the associated climate-related risks for investors and markets become worse and more difficult to assess. As the letter states, “The ability of private companies to stay dark and of public companies to shift dirty assets into the dark could mean that the overall levels of emissions and climate impacting activities could remain the same, or perhaps even grow. If private markets become a de facto risk repository for the dirtiest assets, then despite the Commission’s best efforts to facilitate relevant climate-related information, investors would remain in the dark about these risks, unable to price these risks effectively or ascertain their true exposure to these risks.”

To address this issue, the letter urges the Commission to take decisive action to limit companies’ ability to hide climate-related risks in private markets and to promote the health and vitality of public markets generally. This can be done in part by reining in the excessive growth of private markets. Accordingly, the SEC should move forward with several regulatory proposals that are currently on the Agency’s agenda, including updating the Accredited Investor definition, making modest changes to the Regulation D framework, and making long overdue changes to Section 12(g) of the Exchange Act. The letter observes that “these updates would stem the growth of private markets and encourage companies to go public, where they would be subject to public disclosure requirements, including disclosure of their climate- and other Environmental, Social, and Governance-related risks.”

Unless the structural problems that allow companies to effectively hide dirty assets in private markets are addressed, “the Commission’s efforts to improve climate disclosures [for public issuers] will, at best, be a partial success, leaving a wide swath of investors and our markets vulnerable to the profound risks of climate change, and compounding the unhealthy imbalance between public and private markets that exists today.”

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For decades, researchers have suspected that several artificial dyes contribute to hyperactivity and attention deficit disorder in children. These suspicions were recently confirmed by the California Office of Environmental Health Hazard Assessment. After comprehensively and systematically reviewing the evidence, the agency concluded in 2021 that several dyes “cause or exacerbate neurobehavioral problems in some children.” Specifically, the agency’s report fingers the color additives FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.

Last year, CFA joined consumer advocacy partners in petitioning the California Department of Public Health (CDPH) to require a warning label on dye-containing foods and supplements to alert consumers about the adverse effects these dyes have on children’s neurobehavior. Earlier this month, I testified with other petitioner representatives, and experts including toxicologists, epidemiologists, and pediatricians, at  a public hearing that CDPH held on the group’s petition. We sought to counter industry trade groups’ and paid consultants’ arguments against acting on the science.

One common argument was that these dyes are safe because the U.S. Food and Drug Administration (FDA) has approved them, and FDA is the expert. However, FDA’s approval of these dyes happened in the 80s or even earlier, before the dawn of the personal computer, never mind the genetic analysis technologies that have shed light on why food dyes appear to cause hyperactivity in some children, and even appear to have as large an effect on children’s behavior as lead does on children’s IQ.

Industry has argued that FDA’s ongoing market surveillance should suffice to ensure public protections against these food dyes remain up-to-date. However, FDA’s market surveillance of the harms caused by these dyes has let consumers down, in part because FDA is underfunded and under resourced. The entire FDA Office of Food Additives Safety—responsible for regulating more than 10,000 chemicals in food and a multi-billion-dollar industry—has just over 100 full-time technical staff. And it does not currently have a director.

According to a 2013 study of over 4,000 chemicals purposely added to food such as flavors, preservatives, and sweeteners, less than 22% had sufficient data to estimate how much is safe to eat, and less than 7% were tested for developmental or reproductive effects. FDA may not even know that a chemical is in the food supply, thanks to the Generally Recognized as Safe (GRAS) process, under which food companies have been allowed to determine themselves that over a thousand food chemicals are Generally Recognized as Safe.

Unfortunately, FDA is not going to stand up for consumers on food dyes, but California can. And one big reason for doing so is to establish a level playing field for companies that want to do the right thing. A few years ago, several large companies including General Mills, Kellogg, and Mars made bold pledges to remove artificial colors from their products, but most of them have not followed through. And no wonder! If a company’s competitors can save money and otherwise take advantage of using these chemicals, its hard to make the business case for change.

In Europe, public health authorities have required a warning label on most dyed foods for 15 years. The experience of many leading U.S. companies “across the pond” shows that reformulating foods to remove dyes is feasible and economical. If we arm American consumers with accurate information about food dye harms, we can be confident that it will move the market on this issue just as it has in Europe. Consumers have a right to make educated choices about what foods they purchase and consume. If the FDA can’t stand up to protect consumers, particularly young children, from harmful food dyes, then individual state public health departments should. California, CFA urges you to lead by example and put consumers first.

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“This rule takes a small but important step to protect consumers. Outrageously, companies are now allowed to slap a “Product of USA” label on meat from other countries. In other words, a company can purchase meat that is a ‘Product of Brazil,’ put it in a new box, and call it ‘Product of USA.’ The current rules also allow a company to label ‘Product of USA’ meat from animals that have been imported from a foreign country. So, a cow that spends its entire life in Mexico, is given feed subject to Mexican feed regulations, and is treated with antibiotics and other medicines subject to Mexican drug regulations, could be shipped across the border and slaughtered the same day to make ground beef lawfully labeled ‘Product of USA.’

“USDA’s survey research shows that the vast majority of consumers have no idea that ‘Product of USA’ can apply to meat that’s actually from another country, or from animals raised or slaughtered in another country. This rule will better align the requirements for ‘Product of USA’ labeling with consumer expectations and common sense. However, USDA should go further. According to a survey commissioned by CFA, 88% of Americans favor requiring all beef and pork products to be labeled with information about the country where animals were born, raised and slaughtered. USDA should work with Congress and the U.S. Trade Representative to reinstate mandatory country-of-origin labeling rules for pork and beef products.”

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Since 1994, FDA has prohibited companies from calling a food “healthy”—or “healthful,” “good for health,” etc.—if the food lacks certain specified nutrients, or if it has too much added sugar, sodium, or saturated fat. One problem with the current definition: it excludes many foods that most nutritionists would characterize as “healthy.” For example, salmon cannot bear a “healthy” claim because of its high fat content. Another problem is that the current rule allows “healthy” claims on foods that most nutritionists would agree are not good for you, like sugary vitamin fortified cereals. The new rule attempts to fix these problems by replacing criteria based on minimum nutrient values—which gave companies an incentive to fortify foods with vitamins and minerals—with criteria based on the food groups defined in the 2020-2025 Dietary Guidelines for Americans (DGAs), namely: vegetables, fruits, grains, dairy, protein foods, and oils. So, for example, the rules allow cereals to bear a “healthy” claim if they meet a minimum threshold for whole grains, but not for vitamins.

The new rule also continues to exclude foods that are high in sodium and saturated fat—with an exception for saturated fats in nuts and seeds. And the rule continues to exclude foods that are high in added sugars, but it does not exclude foods that are high in added sweeteners, such as aspartame, acesulfame potassium, sucralose, and stevia extract. This omission opens the door to misleading claims insofar as foods made with artificial sweeteners are unhealthy.

“Unhealthy for whom?,” you may be asking yourself. The broadest consensus holds that children under 2 years of age should not consume artificially sweetened foods. According to the DGAs, “high-intensity [i.e., artificial] sweeteners are not recommended for children under 2” because “[t]aste preferences are being formed during this time period, and infants and young children may develop preferences for overly sweet foods if introduced to very sweet foods during this timeframe.” Caregivers often feed “adult” foods to children, and this fact alone arguably supports banning “healthy” claims on artificially sweetened foods.

But the evidence also indicates that artificial sweeteners are bad for adults. Last year, a large scale prospective cohort study of over 100,000 adults in France found “a potential direct association” between higher artificial sweetener consumption (especially aspartame, acesulfame potassium, and sucralose) and increased cardiovascular disease risk.” According to the study, sweetener consumption was linked to a 9 percent increase in risk of cardiovascular disease, and an 18 percent risk of stroke.  Sweeteners may cause these ill health effects in part by interfering with the metabolic process. In a randomized-controlled trial encompassing 120 healthy adults, also conducted last year, subjects who were administered various sweeteners for 2 weeks—in doses lower than FDA’s acceptable daily intake—had “impaired glycemic responses” compared with controls given sugar or nothing at all.

This research raises serious concerns because low-calorie sweeteners have become ubiquitous in the food supply, with over 25 percent of children now estimated to be consuming these ingredients as part of their normal diet. The concerns have led some public health authorities to reexamine policies on sweeteners. New York City, for example, has banned low-calorie sweeteners from all food and beverages at “sites serving a majority of children age 18 or younger.”

Ultimately, “healthy” claims are marketing claims, designed not so much to inform consumers as to sell food products. After all, many of the healthiest foods, such as fresh fruit and vegetables, have no labels at all, or minimal labeling. “Healthy” claims may lead to excessive consumption of “healthy”-labeled products, at the expense of unlabeled, healthier alternatives. They are also simplistic, as dietary needs are specific to each individual, and “healthy claims” may deter consumers from looking further into a product’s nutritional content.  Because of these inherent deficiencies, CFA has urged FDA to abandon development of a “healthy” icon in favor of a comprehensive front-of-package labeling system that identifies which foods are unhealthy.

In the meantime, FDA should take a conservative stance in defining misleading and deceptive “healthy” marketing claims. “Healthy” claims should not apply where the evidence suggests a food product may cause significant health problems, and the evidence against artificially sweetened foods is substantial, and growing.

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“These changes are long overdue and should help to better protect consumers,” said Thomas Gremillion, Director of Food Policy at Consumer Federation of America. “The absence of a clear, overarching leader for the FDA foods program has undermined the agency’s organizational culture, its communications, its ability to attract resources, its partnerships with state and local regulators, and its responsiveness in a crisis. By giving one leader the power to set priorities within the foods program, and to direct resources accordingly, this reorganization will help the agency to break down the silos and hopefully, convince Congress to provide the funding needed to ensure a safe and healthy food supply for all Americans.

“The proposed reorganization responds to many of the concerns raised by CFA in testimony delivered before the Reagan-Udall Foundation’s expert panel last year. In particular, the new Office of Integrated Food Safety System Partnerships, should foster better coordination with state agencies, who often conduct food safety inspections on behalf of the FDA. The creation of a new center focused solely on nutrition is also very important, given the huge economic toll that diet-related disease is taking on U.S. consumers. The reorganization plan is not perfect. For example, the Center for Veterinary Medicine is still separate from the foods program, even though its regulation of areas like animal antibiotics greatly impacts the food system. Overall, however, this is an important first step towards greater accountability, transparency, and efficacy at FDA.”

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“This announcement represents a sea change in how poultry is inspected in the United States,” said Thomas Gremillion, Director of Food Policy at Consumer Federation of America. “Rather than certifying a poultry processing establishment’s safety, FSIS will now certify the safety of each poultry product itself. And that’s what matters to consumers.”

FSIS will begin by declaring Salmonella an adulterant in breaded and stuffed raw chicken products. Never before has the agency considered Salmonella an adulterant in a raw chicken product, and the policy represents an important affirmation of the agency’s authority. Breaded raw chicken products have been implicated in 14 outbreaks since 1998, in part because so many consumers misunderstand their cooking requirements. The bigger public health impacts from the FSIS policy change, however, will follow from rules that apply to the broader universe of raw chicken products.

According to Deputy Under Secretary Eskin, FSIS will announce new rules that establish enforceable final product standards for raw poultry, in lieu of the performance standards that now apply to poultry processors. Under the current rules, a poultry processor may lawfully sell meat contaminated with high levels of virulent Salmonella, so long as weekly testing indicates that the prevalence of contamination in the plant is infrequent. Under a product-based standard, FSIS will define limits that prohibit certain types of Salmonella, levels of contamination, or both.  If Salmonella contamination on a product violates those limits, the product will be considered adulterated.

FSIS is also planning policy changes that may help to transform poultry supply chains, reducing the incidence of Salmonella in poultry before it comes through the slaughterhouse door. According to Eskin, the agency will propose testing requirements for incoming flocks of birds at each establishment. This testing could be used to identify flocks that harbor dangerous Salmonella strains, high levels of Salmonella contamination, or both, so that establishments can take added precautions to ensure the meat from these flocks is not adulterated, and work with partners further up the supply chain to reduce contamination at the source.

“Testing incoming birds is a critical element of a rational Salmonella control plan,” said Gremillion. “Salmonella is vertically transmitted. A single pedigree female chicken may have over three million offspring, and if that breeding hen is infected with a dangerous strain of Salmonella, it can spread throughout the food system and wreak havoc on public health.”

Supply chain controls feature prominently in a recent petition filed by CFA and consumer advocacy partners, including the Center for Science in the Public Interest. As noted in the petition, some of the most effective strategies for reducing Salmonella infections, such as vaccinating birds against the most dangerous strains of the bacteria, must be implemented “preharvest,” or before the birds are slaughtered. The experience of many European countries provides strong evidence that programs to control Salmonella in live poultry flocks will lead to significant declines in human Salmonella infections.

For now, many details remain to be determined. FSIS has yet to initiate formal rulemaking on any of the proposals discussed by Eskin, a process that normally takes years to complete. By starting with breaded and stuffed raw chicken products, the agency has chosen a high-risk but also very small product category.

“If FSIS wants to end decades of stalled progress on reducing foodborne illness, it will have to make rules that apply to all chicken, not just products that appear to be cooked,” said Gremillion. “But today’s announcement is an important step in the right direction.”

Contact: Thomas Gremillion, 803-447-6639

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This is misleading. Drinking alcohol does not deliver nutritional benefits. Alcohol blocks the absorption of essential vitamins and nutrients, acting as an oxidative force in the body. It also causes many other health problems, including cancer. Given what we know about alcohol, the FDA’s prohibition against vitamin fortification claims like Vizzy’s is hardly surprising.

The rules are clear. Vitamin fortification claims on alcohol, such as Vizzy’s “with antioxidant Vitamin C,” are prohibited. So why has FDA allowed Molson Coors to continue its unlawful marketing campaign?

Last year, CFA filed a request under the Freedom of Information Act to try to get some answers. The agency’s response showed that staff recognized an apparent legal violation, at least in their initial correspondence. However, the agency leadership eventually found a reason to look the other way, and that reason has been redacted from the public record. While FDA rolled over though, a class action lawsuit went forward against Molson Coors. Now, a federal court has made clear what was already obvious to anyone possessing a casual familiarity with the issue and some notion of the rule of law: Vizzy’s labeling claims are illegal.

Perhaps now FDA leadership will devote resources to carry out the agency’s statutory mandate and end Vizzy’s misleading campaign. Recently, the agency issued a final rule revoking the standard of identity for French dressing. Revoking misleading advertising claims on hard seltzers surely deserves priority over more actions like that. And when FDA has set Molson Coors straight, it can turn its attention to the many other “hard seltzer” type products, ostensibly regulated by FDA, that have taken a cue from Molson Coors and trotted out their own misleading claims. Until then, buyer beware!

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The final rule closely resembles FDA’s proposed rule, issued in 2020. CFA and other consumer groups voiced support for that proposal, noting in particular its potential to protect consumers from contaminated food imported from abroad. But the groups also urged FDA to require laboratory accreditation for the full range of testing undertaken to comply with regulatory requirements. In particular, they asked that FDA require accreditation where testing serves as a “corrective action,” following an unsatisfactory inspection. In other words, the rule should prevent a food company from using bogus test results as evidence of food safety, after a government inspection of the company’s facilities and records suggests otherwise.

Under the final rule, FDA will continue to allow companies to use unaccredited labs when taking corrective actions. However, the rule keeps the door open for FDA to expand the scope of its accreditation requirements. In the meantime, the rule establishes a common set of standards that food safety advocates hope will be adopted by a wide range of private laboratories, not just those conducting the tests covered by the rule.

“This rule represents a step forward towards safer food for consumers,” said Thomas Gremillion, Director of Food Policy at Consumer Federation of America. “Most importantly, it strengthens the Import Alert system. By requiring importers to use accredited labs, it will help to avoid public health disasters like the multiple Salmonella outbreaks linked to imported Mexican papayas between 2011 and 2019. Nevertheless, the rule falls short of what Congress directed the agency to do in FSMA. FDA will now need to keep close watch of how the industry responds, particularly domestic food companies subject to corrective action and verification testing. If these companies continue to rely on unaccredited labs to satisfy regulatory requirements, the agency should not hesitate to exercise its full authority

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Drinking Vizzy is not good for your health. Like all alcoholic beverages, its consumption—even one drink per day—causes a statistically significant increase in breast cancer and other cancer risks. Like all alcoholic beverages, Vizzy is addictive, and it will likely reduce your sleep quality, even when consumed in moderate amounts. And if you drink a lot of Vizzy, like all alcoholic beverages, it will increase your chances of suffering from high blood pressure, heart disease, stroke, liver disease, digestive problems, a weakened immune system, learning and memory problems, and depression and anxiety.

These harms likely outweigh the benefits that anyone without scurvy might reap from Vizzy’s vitamin C. Indeed, Vizzy’s alcohol content directly undermines its “antioxidant” benefit because alcohol reduces antioxidant levels in the body.

But should Molson Coors nevertheless be allowed to tout Vizzy’s “antioxidant vitamin C” ingredients? After all, the claim is true, at least as far as we know. Why can’t consumers handle the truth?

This was the question posed in response to our letter by Baylen Linnekin on the libertarian website Reason. He writes: “Notably, nowhere in their letter do CSPI and CFA claim the information Vizzy provides to consumers is false. Rather, with a flourish of Orwellian denialism, they claim the truthful information Vizzy provides consumers somehow serves to mislead those same consumers.” He concludes that “The FDA shouldn’t prohibit Vizzy, other hard seltzer makers, or any other food or beverage maker from sharing truthful information about its products with consumers.”

This position seems reasonable enough, but it doesn’t stand up too well to scrutiny. Academic researchers have cataloged a variety of ways in which literally truthful claims can be misleading. For example, a claim may tout a product attribute that all other such products share. This was the case with chicken labeled “antibiotic-free.” Companies used the claim to signify that their chicken did not contain any antibiotic residue. But by law, all chicken must be “antibiotic-free” in this sense, regardless of how the birds were raised. So the claim is misleading, because it implies that competing products contain antibiotic residues. The claim also invites confusion with actually meaningful claims, such as “raised without antibiotics.”

Vizzy’s claims are different—their addition of Vitamin C is fairly unique—but they are nonetheless misleading. To understand why, it may help to consider a recent decision by the Alcohol and Tobacco Tax and Trade Bureau, or TTB, which inexplicably regulates, rather than FDA, just about every alcoholic beverage other than “hard seltzers.”

In 2017, TTB denied a petition for labeling claims related to Bellion Vodka, which contains a proprietary ingredient dubbed “NTX.” Bellion sought to include labeling claims on its vodka such as “NTX® provides antioxidant and anti-inflammatory support” and “NTX® reduces the risk of alcohol-induced liver diseases, including fibrosis and cirrhosis.” Citing regulations under the Federal Alcohol Administration Act, the regulators at TTB concluded that “the proposed labeling and advertising statements ‘create a misleading impression’ that consumption of alcohol beverages infused with NTX® will protect consumers from certain serious health risks associated with both moderate and heavy levels of alcohol consumption.” A federal court later upheld the agency’s decision.

Much of the deliberations around Bellion concerned the data that company had assembled in support of NTX’s efficacy. But let’s assume for the sake of argument that Bellion’s claims were literally true. This is not so much of a stretch. After all, lots of common substances, such as Vitamin D and zinc, have been shown to slow the progression of liver disease. Assuming they are true, should claims like Bellion’s be allowed?

Of course not. The relevant information is not that Vodka brand X is slightly better for your liver than Vodka brand Y. It is that all vodka is terrible for your liver. Bellion’s health claims obscure that fact, in the same way that other health claims on alcoholic beverages obscure the truth about alcohol’s overwhelmingly negative health effects. Claims like Bellion’s and Vizzy’s invite consumers to make irrational decisions, if they don’t confuse them outright.

If you don’t think that’s a problem for you, think again. Few people are as impervious to the influence of this type of messaging as they might believe. There’s a reason the alcohol industry spends over one billion dollars on advertising each year.

But there’s a cost for even those who know better. To the extent that big alcohol’s misleading health claims succeed, they will succeed in misleading our friends, family, community members, and people whose healthcare costs we must continue to subsidize.

Consumer protections are not a matter of absolutes. Many consumers may buy a certified organic alcoholic beverage with an unrealistic idea of the health consequences stemming from that claim. Nevertheless, the environmental and other benefits of organic farming arguably justify the use of such claims. By contrast, no redeeming benefits rationalize the confusion wrought by health claims like those on Vizzy—and on a fast growing number of other “hard seltzer” beverages to which FDA has turned a blind eye.

Finally, like everything else, consumer protections depend on context. The alcohol industry’s latest foray into health claims comes against a backdrop of disturbingly low levels of awareness regarding alcohol’s harms. In particular, less than half of adults in the U.S. recognize that alcohol increases cancer risk, even though alcohol consumption represents the third-largest modifiable risk factor contributing to cancer cases in the U.S. (behind only smoking and obesity). That needs to change, and it’s why CFA and other consumer advocates have asked regulators to update the health warning statement on alcoholic beverages to include a cancer warning.

Rather than bombard consumers with irrelevant information, product labeling should help consumers make informed choices. We may have a long way to go before Congress takes action to update the Alcoholic Beverage Labeling Act of 1986. The alcohol industry vigorously opposes a cancer warning, and it has successfully enlisted the U.S. government’s help in efforts to stop cancer warning legislation abroad through abusive World Trade Organization challenges. Right now, however, FDA can take a step in the right direction now by simply enforcing existing law that protects consumers from misleading claims, even ones that are literally truthful.

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