Food Labeling | jgersen | February 11, 2016

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Food Labeling

by jgersen Show/Hide
  1. 1 Show/Hide More Definition of Label and Labeling
    Original Creator: jgersen
    1. 1.1 Show/Hide More Kordel v. United States
      Original Creator: jgersen

      Notes:
      1. Kordel's core holding is that&#8230; <br /> 2. Suppose Kordel had come out differently. How would modern debates about food labeling differ? <br /> 3. Another last note.
  2. 2 Show/Hide More Affirmative Requirements for the Label
    Original Creator: jgersen
    1. 2.1 Show/Hide More Principal Display Panel
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    2. 2.2 Show/Hide More Information Panel
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    3. 2.3 Show/Hide More Nutrition Facts
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    4. 2.4 Show/Hide More Ingredient List
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    5. 2.5 Show/Hide More Signature Line
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    6. 2.6 Show/Hide More Warning and Information Statements veggie
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    7. 2.7 Show/Hide More Juices
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    8. 2.8 Show/Hide More Country of Origin
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    9. 2.9 Show/Hide More Flavor Designation
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  3. 3 Show/Hide More Claims
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    1. 3.1 Show/Hide More Permissible Claims
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  4. 4 Show/Hide More Language Specifications
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  5. 5 Show/Hide More Front of Package Labeling (FOP)
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    1. 5.1 Show/Hide More Development
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    2. 5.2 Show/Hide More Smart Choices Program
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    3. 5.3 Show/Hide More FDA FOP Labeling Initiative
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    4. 5.4 Show/Hide More New Industry Initiatives: Nutrition Keys
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    5. 5.5 Show/Hide More Moving Forward
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    6. 5.6 Show/Hide More Misbranding
      Original Creator: jgersen

      Recall that the two major federal statutes pertaining to food and drugs in the first half of the twentieth century were the 1906 Pure Food and Drug Act (PFDA) and the 1938 Food, Drug, and Cosmetic Act (FDCA). Although the 1938 statute attempted to fix many of the earlier law's failings, many legal requirements and doctrinal frameworks carried over from the PFDA to the FDCA.

      The PFDA made it illegal to manufacture or transport any food that is “misbranded.” Pure Food and Drug Act of 1906, sections 1-2, 34 Stat.. 768, 768-72 (repealed 1938). The purpose of the PFDA's misbranding provision was “to make it possible that the consumer should know that an article purchased was what it purported to be; that it might be bought for what it really was, and not under misrepresentations and to character and quality.” United States v. Johnson, 221 U.S. 488, 497 (1911).

      1. 5.6.1 Show/Hide More United States v. Johnson
        Original Creator: jgersen
        Although United States v. Johnson is a case about the meaning of misbranding for drugs, the same analysis applies to misbranding of foods. Note also the close relation and even overlap between the treatment of food and drugs in the cases implementing the statute.   
      2. 5.6.2 Show/Hide More Hall-Baker Grain Co. v. United States
        Original Creator: jgersen
        1. Criminal Intent. The charges brought against Hall-Baker Grain Co. were criminal charges. At issue in this case is what level of intent on the part of the defendants must the government establish at trial in order to sustain a conviction. Although ours is not a class in criminal law, a brief discussion may be useful. For most crimes, a criminal conviction requires establishing actus rea and mens mea, a guilty act and a guilty mind. In the main, the government must show that a defendant had the necessary intent, the right mens rea. Different crimes require different levels of intent, but there are five typical possibilities: (1) Purpose—the defendant had a purpose to bring about the harm; (2) Knowledge—the defendant knew to a substantial certainty that an act would result in the harm; (3) Reckless—the defendant was aware of a substantial risk that harm would result form the act, but did so anyway; (4) Negligence—the defendant knew or should have known that there was a risk of harm and did not avoid it. Other crimes are known as strict liability crimes, for which no showing of intent or mens rea is required. Particularly early in the evolution of food and drug law, some crimes involving food or drugs were initially treated as strict liability crimes. The question for the Eight Circuit was thus, whether misbranding and adulteration under the PFDA were to be treated as ordinary or strict liability crimes.
        2. Chain of Custody. Hall-Baker Grain presents a very common shipping scenario. Goods are stored in one location, ordered from a buyer from a shipper, who notifies the storage facility, who packs and then ships the goods. Along the way, there are many opportunities for fraud of various sorts. Lower quality goods can be mixed with higher quality goods. Volume can be manipulated such that a buyer receives less of a high quality good than expected. High quality goods can be replaced by low quality goods by a shipper or a middleman. And so on and so on.   Note that the grain industry had a particular way of managing such problems, partially involving government inspectors at the point of shipment and receipt. Why is the market unable to solve this basic problem of fraud and verification?
        3. Least Cost Avoider. A standard concept in law and economics is the least cost avoider (or cheapest cost avoider). The least cost avoider is the person or actor who can most easily avoid a harm. One prominent theory is that the law should impose liability on the least cost avoider precisely because they are best situated to avoid a harm. Who is the least cost avoider in this case and does decision of the Eight Circuit impose liability on them?
        4. Civil v. Criminal. Not that the same rule may not apply to civil and criminal settings. Even if there is no criminal liability for the company because there was not mens rea demonstrated, it may still be that there is civil liability for the delivery of misbranded goods. After all, the buyer paid for one thing and received another thing of lesser value. Does the decision make misbranding more or less likely then? Are you confident?

         

        Notes:
        1. Just a trial note to check location.
      3. 5.6.3 Show/Hide More V.E. Irons, Inc. v. United States
        Original Creator: jgersen

      4. 5.6.4 Show/Hide More Consumer Expectations
        Original Creator: jgersen
      5. 5.6.5 Show/Hide More United States v. Strauss
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      6. 5.6.6 Show/Hide More Consumer Expectations
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      7. 5.6.7 Show/Hide More United States v. Strauss
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      8. 5.6.8 Show/Hide More Consumer Expectations
        Original Creator: jgersen
  6. 6 Show/Hide More USDA
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    1. 6.1 Show/Hide More FSIS: Label Preapproval
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    2. 6.2 Show/Hide More USDA Regulations Unique to Meat and Poultry Labels
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    3. 6.3 Show/Hide More Negative labeling: FDA/FSIS Comparison
      Original Creator: jgersen
  7. 7 Show/Hide More Notable Food Labeling Issues
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    1. 7.1 Show/Hide More Food Allergens
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    2. 7.2 Show/Hide More Trans fat
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    3. 7.3 Show/Hide More Genetically Engineered Food
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    4. 7.4 Show/Hide More Cloning
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    5. 7.5 Show/Hide More Religious Dietary Labeling (Kosher and Halal)
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    6. 7.6 Show/Hide More Irradiation
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    7. 7.7 Show/Hide More Organic Labeling Regulation
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    8. 7.8 Show/Hide More “Natural” Regulation
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    9. 7.9 Show/Hide More Animal Raising Claims
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    10. 7.10 Show/Hide More Country-of-Origin Labeling (COOL)
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    11. 7.11 Show/Hide More Geographical Indicators
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  8. 8 Show/Hide More International Law
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    1. 8.1 Show/Hide More Legal Instruments
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    2. 8.2 Show/Hide More TBT Agreement
      Original Creator: jgersen
    3. 8.3 Show/Hide More Food Labeling as a “Technical Regulation” or “Standard”
      Original Creator: jgersen
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November 16, 2016

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jgersen

Jacob Gersen

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