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March 2, 2017 by Lesley McAllister

Regulatory Paralysis by Preemption: GMO Food Labeling and Potentially More

Originally published on Environmental Law Prof Blog by CPR Member Scholar Lesley McAllister.

Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true – see 7 U.S.C. § 1639(b)(2)(D) (Jul. 29, 2016). So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs?

It could be a very long wait. For one thing, the law – the National Bioengineered Food Disclosure Standard – didn't actually mandate a label that directly states that the food is a GE food. Rather, Congress left open the possibility that USDA allow scannable QR codes instead of on-package labeling as the means of disclosure. Congress charged the USDA with completing a study within one year (i.e. by July 2017) regarding whether QR codes would preclude consumer access to the disclosure (and if so, the agency shall provide "additional and comparable options to access the bioengineering disclosure.") As of early January, USDA didn't have the funds to conduct the study.

The Disclosure Standard itself is supposed to be established within two years of …

Dec. 14, 2016 by Rena Steinzor
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A burgeoning and little-regulated private industry that specially mixes drugs at so-called compounding pharmacies poses a public-health hazard that the Trump administration is about to make a whole lot worse. An earlier version of this story appeared in The American Prospect. 

President-elect Donald Trump has pledged to eliminate 70 to 80 percent of all federal regulations, and the Food and Drug Administration's (FDA) rulebook is near the top of his list. Close Trump adviser Newt Gingrich has denounced the FDA as the nation's leading "job killer," and has called the agency "a major prison guard stopping the breakout in health."

If the Trump administration makes good on these threats, an already weakened FDA could approach paralysis, exposing millions of patients to unsafe medications. Particularly at risk will be those who receive ostensibly "sterile" injections for back and neck pain, among other ailments, from compounding pharmacies …

Nov. 30, 2016 by James Goodwin
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Many Americans would likely be shocked to learn how lax government oversight of the manufacture and design of aircraft, such as airplanes and helicopters, has become. After all, any list of those areas of the economy that would seem to cry out for strict regulation would have to include aircraft production and maintenance, considering that when aircraft are defective or contain defective parts, the consequences are almost inevitably catastrophic and tragic. 

Yet, in a 2004 audit, Congress' nonpartisan Government Accountability Office (GAO) found that severe budget constraints had compelled the Federal Aviation Administration (FAA) – the agency charged with overseeing aircraft safety – to outsource to private parties nearly 90 percent of the work it is supposed to do to ensure that aircraft meet applicable safety requirements. In some cases, the private parties taking on these tasks are the manufacturers themselves, raising at least the appearance, if not the …

Nov. 1, 2016 by Mollie Rosenzweig
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Last year, consumers linked Wen hair products to sudden and dramatic hair loss. The story generated a flurry of national coverage and spurred increased interest in just how closely the Food and Drug Administration (FDA) regulates our cosmetic products. Indeed, Wen hair products are not alone in causing dangerous side effects and containing disconcerting ingredients: Consumers have raised alarms over formaldehyde in hair straightening products, mercury in skin creams, and an array of toxic chemicals in children's face paint, including lead, cadmium, toluene, formaldehyde, and others. 

Currently, the FDA has shockingly little authority to regulate personal care and cosmetic products, which comes as a surprise to many consumers. In contrast to the rigorous testing pharmaceutical products must undergo before they can be marketed and sold, cosmetics and personal care products need not meet exacting federal standards. The innumerable chemicals in cosmetic products don't need be …

Aug. 5, 2016 by Mollie Rosenzweig
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Americans are increasingly looking for reforms in our food system. Limited use of pesticides, animal welfare, and sustainability are just some of the issues becoming more important to consumers when they make decisions about their food. Unfortunately, Congress and the regulatory agencies charged with overseeing the food supply have worked slowly – very slowly – to address these and other pressing issues as of late. On the other hand, the food industry and retailers have seen the writing on the wall and have started to shift some of their practices, enough at least that they can market their efforts to consumers. 

But how extensive are these changes really? Will they address the many systemic hazards and shortcomings in food production and distribution that can harm both our health and the environment? 

In recent years, large players in the food and grocery industries have emerged as some of the most …

June 2, 2016 by David Driesen
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During the last few years, airlines have increased their reliance on "bait-and-switch" scheduling. They induce travelers to choose their airline based on advertised routes and schedules. They know that especially good routes are valuable and generally charge more for a good route than a bad one. Long after travelers have taken the bait, often paying more than the lowest available price to avoid delay-prone airports, long layovers, and multiple stops, the airlines simply switch around the schedule. While many of these changes can be minor, changing departure and arrival times by 10 or 20 minutes, increasingly airlines feel no compunction at all about completely tearing up the deal they made, adding stops, drastically increasing layover times, and routing the hapless traveler through a different city than she would have selected when she had a choice. They often make these changes just a few weeks in advance, when …

May 12, 2016 by Mollie Rosenzweig
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The U.S. Department of Justice (DOJ) recently launched a criminal investigation of Dole Food Company, continuing a trend of criminal enforcement against those responsible for deadly food safety lapses. The investigation stems from a Listeria outbreak in bagged salad that sickened 33 people, four of whom died. 

Between September 2015 and January 2016, 33 people in the U.S. and Canada became infected with Listeria from bagged lettuce processed at Dole's Springfield, Ohio plant. At first, investigators struggled to trace the widespread outbreak back to a source, but genetic fingerprinting allowed inspectors from Ohio to connect the outbreak to the Dole plant. On January 14, 2016, officials inspected the Dole plant and collected samples, which tested positive for Listeria. Dole voluntarily stopped production at the plant on January 21 and issued a voluntary recall on January 27. 

Tragically, Dole knew about the Listeria contamination in …

April 22, 2016 by Mollie Rosenzweig
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Just as we predicted back in December, foods created with CRISPR technology (short for clustered regularly-interspaced short palindromic repeats) are entering the food supply beyond the reach of federal regulators. Last week, the U.S. Department of Agriculture (USDA) announced that it would not regulate white button mushrooms that scientists altered to stop them from browning. The agency's confirmation that it is unable to regulate CRISPR-modified foods confirms that the current statutory scheme for genetically modified foods is not sufficient. 

In the simplest terms, genetically modified plants are created when scientists add foreign DNA (usually DNA from bacteria) to a plant to give it a designated trait, like resistance to a virus or to a pesticide. CRISPR (pronounced “crisper”), a newer technology, does not rely on foreign DNA. Instead of combining genetic material from different species, scientists edit the organism’s existing genetic code to achieve …

April 6, 2016 by Mollie Rosenzweig
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Consumers, take note: Last week, Clean Production Action published a troubling new report, Buyer Beware: Toxic BPA and regrettable substitutes found in the linings of canned food, on the presence of toxic bisphenol-A (BPA) in canned foods. The report, co-written by Breast Cancer Fund, Campaign for Healthier Solutions, Ecology Center, and Mind the Store Campaign, found BPA in the lining of the majority of canned foods sold by major retailers across the United States and Canada.

As the Center for Progressive Reform has discussed before, BPA can leach into food and poses a serious threat to human health. As an endocrine disruptor, BPA mimics estrogen in human bodies, which can ultimately play a role in many health problems, including obesity, diabetes, fertility complications, and some cancers. Its continued presence in can liners is a significant problem that calls out for effective, comprehensive action from federal regulatory agencies …

Feb. 19, 2016 by Mollie Rosenzweig
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At a time when consumers are demanding greater transparency in the food system – and some food companies are delivering by means of genetically modified organism labeling and removal of artificial food dyes — a troubling North Carolina law that runs counter to that goal has recently gone into effect. The state’s so-called “ag-gag” law prohibits whistleblowers from making audio or video recordings inside industrial agricultural facilities. Following the success of a similar suit in Idaho last year, consumer protection advocates and government watchdog groups have brought a constitutional challenge to the law in a North Carolina federal district court.

The public has been benefitting from undercover documentation of conditions inside food production facilities since Upton Sinclair wrote The Jungle at the turn of the last century. In recent years, undercover videos at animal agriculture facilities have exposed horrific instances of animal abuse — sick turkeys thrown into grinding …

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