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Tyson-Hillshire Merger: An Antitrust Concern?

PigsIowa Senator Chuck Grassley and a number of meat industry observers have called for close antitrust scrutiny by the U.S. Dept. of Justice of Tyson Foods’ announced purchase of Hillshire Brands. While scrutiny of mergers is always a good idea, does this merger really pose a threat to markets or is this simply a knee-jerk, pro forma complaint about change?

In any antitrust matter, the primary concern is defining the relevant market. In this case, both the output and input facets of Tyson’s and Hillshire’s businesses would be of concern.

The two companies both sell meat products but I think it would be difficult to argue that they sell in common markets. Hillshire sells, almost exclusively, further processed, branded items. Tyson does some of that, especially in its chicken business, but it sells far more fresh, unprocessed wholesale pork and beef cuts, many of which go to companies just like Hillshire. Keep Reading

U.S. Supreme Court Paves Way for More False Advertising Disputes

Minute Maid Pomegranate Blueberry Flavored Blend of 5 JuicesOn June 12, the U.S. Supreme Court issued an 8-0 ruling in favor of Pom Wonderful in a longstanding false advertising dispute against rival beverage company The Coca-Cola Co. The Supreme Court held that competitors can bring Lanham Act claims like Pom Wonderful’s challenging food and beverage labels regulated by the U.S. Food and Drug Administration (FDA).

At issue in the case was Coca-Cola’s “Pomegranate Blueberry Flavored Blend of 5 Juices,” which is 99% apple and grape juice. Pom Wonderful (Pom), who has a competing pomegranate-blueberry juice blend, sued Coca-Cola. It alleged that the juice’s name and other labeling features were misleading under the federal Lanham Act—a statute that allows competitors to sue based on the false or misleading description of goods (15 U.S.C. § 1125(a)). Keep Reading

Nutrition Facts Label Changes Mean New Challenges and Opportunities

Nutrition Facts labelThe U.S. Food and Drug Administration (FDA) published proposals to update the design and content of the Nutrition Facts label (NFL) and associated serving sizes on Feb. 27, 2014. Two factors driving the FDA changes are undeniable: consumers’ expressed desire for the labels to be easier to read and use; and outdated nutrition science and food consumption data that supported the 1993 regulations.

Consumer research shows that more than half of food shoppers are using nutrition labeling (IFIC, 2013; Todd, 2014). Even so, within the first years of use of the NFL, 70% of consumers expressed the need for the labels to be easier to read and use (Kristal, 1998; FMI, 1995). Evolving nutrition science, including new Dietary Reference Intakes (DRIs), updated nationwide food consumption data, and up-to-date comprehensive, evidence-based Dietary Guidelines recommendations warrant changes. Keep Reading

The 2014 Farm Bill Crosses the Finish Line

The multiple year journey to farm bill reauthorization is closing in on the finish line. The trip to final passage stopped at the “dairy cliff,” took a fork in the road splitting off food support programs, and visited the rocky hills of farm program reform. Despite the detours, we’ve arrived. After one public meeting and dozens of closed door negotiations, the Senate and House of Representatives conference committee in January finally bridged the divide and reached agreement on a new five-year farm bill.

Keep Reading

What’s In a Name? Plenty if You Call It a ‘Drink’

Recently, the FDA released a long-awaited final version of its guidance regarding the differences between beverages and liquid dietary supplements. The “Guidance for Industry: Distinguishing Liquid Dietary Supplements from Beverages” had been promised over the course of the last two years as part of the ongoing dialogue between certain U.S. Senators and Congressmen and the FDA. So, now that it is out, what does it mean?

Of course, it is always important to remember that FDA guidances are not the law, but instead, reflect the FDA’s current thinking on the subject. That being said, while guidances aren’t law, they are instructive on how the FDA is likely to act regarding the topic and it is generally advisable to follow the guidance if a company does not want to run afoul of the FDA. Keep Reading

The Impact and Consequences of Banning Trans Fatty Acids

wheat crackersTo many the proposed FDA rule to deny GRAS status to partially hydrogenated oil—and thereby in effect banning it from use—would be a great public health benefit. However, this proposed rule is not without consequences to many individuals, so it is critical that this decision is made carefully.

The FDA and others have stated that further decreases in trans fatty acid consumption could decrease thousands of cardiac events and deaths. These calculations of saving lives by further lowering trans fatty acid consumption assume that the biological effects of trans fatty acid follow a dose dependent linear response. Unfortunately, the pharmokinetics of the biological effects of trans fatty acids are difficult if not impossible to confirm since most studies that show adverse effects of trans fatty acids had to use dietary trans levels in excess of 5% of total energy. FDA has calculated that trans fatty acid consumption of partially hydrogenated oils has decreased from 4.6 g per day in 2003 to 1.3 g per day (2.1 to 0.6% of total energy) in 2010. It is very common for kinetics to not be linear especially at extremely low or high concentrations of bioactive agents. Therefore, it does not seem scientifically prudent to make a bold statement of how many deaths a food ingredient is causing without any clinical data. Keep Reading

Food Safety Suffers During U.S. Government Shutdown

U.S. Government ShutdownThe partial U.S. government shutdown, now in its second week, has already started affecting the operations of the Food and Drug Administration (FDA). Hardest hit are the FDA operations related to foods. Consequently, food importers, retailers, and consumers should be concerned.

The shutdown will have lesser effects, at least in the short-term, on the FDA divisions that deal with human drugs, animal drugs, medical devices, and tobacco, as each of these divisions collects some type of user fees, giving those divisions a buffer when government funding is unavailable, as is the case during the shutdown. Keep Reading

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