Friday, May 14, 2010

Playing Catchup

I didn't want to do this, but I'm giving into the blogging cliche of saying "oh my gosh, I haven't written on here in so long!" I haven't written in a few months, and certain developments warrant attention, even if that attention is belated.

Bluefin Tuna

I have a tender spot in my heart for the bluefin tuna. My second year in law school I worked at the Harrison Institute for Public Law, Georgetown Law Center's policy clinic. My first project at the clinic was an analysis of US trade sanction law in the context of the bluefin and its impending doom.

I was, therefore, deeply saddened to learn that the International Commission for the Conservation of Atlantic Tunas (ICCAT), which is responsible for setting catch limits (known as "total allowable catches" or TACs) for member states, once again set catch limits far beyond sustainable levels. The current bluefin population is estimated to be around 15% of the size it was when commercial fishing began. Scientists have estimated that an 8000 metric ton/year catch would put the population at a 50-50 chance for recovery. This year's catch was set at 13,500 metric tons. Granted, this is significantly better than 2009's quota, which was set at 22,000 metric tons. ICCAT has to step it up, though, or it will find itself with one less species to "conserve."

If ICCAT's continuing failure wasn't concerning enough, Monaco called for a ban on harvests of bluefin tuna under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) at the Conference of the Parties in March. The proposal, had it passed, would have listed the bluefin under Appendix I of CITES, which forbids trade in the species in the absence of exceptional circumstances. The US, Europe, Norway and Monaco, with the support of the UN Food and Agriculture Organization, called for adjournment of the meeting to discuss the matter prior to a vote, but apparently the delegate from Libya "started 'screaming and calling everyone liars…He said the science was no good and that it was part of a conspiracy of developed countries.'" The proposal was put to immediate vote and rejected. Can't a poor, tragically delicious (or so I've been told) fish get a break?

Ban on Synthetic "Accessory Ingredients"

On April 27, the USDA closed a 2006 loophole in the National Organic Program (NOP) which allowed synthetic "accessory nutrients" to be included in processed organic foods. Specifically, synthetic fatty acids DHA and ARA were being added to infant formula. The oils in question are derived from soil and algae using hexane, a neurotoxic, and have reportedly been linked to gastrointestinal distress in babies.

The NOP explains the creation of the loophole: "[e]stablished under the Organic Foods Production Act of 1990, the National List of Allowed and Prohibited Substances identifies synthetic substances that may be used, and the nonsynthetic substances that cannot be used, in organic production and handling operations. The NOP’s understanding at the time of the decision was that the substances were allowed as “accessory nutrients” under the National List § 205.605(b) Nutrient Vitamins and Minerals, in accordance with 21 CFR 104.20, Nutritional Guidelines for Foods and the National Organic Standards Board Recommendations." The press release goes on to state that "[a]fter recent consultation with the FDA, it was determined that this is an incorrect interpretation of 21 CFR 104.20."

The National Organic Standards Board (NOSB) voted in 1995 to allow "nutrient minerals" which had undergone technical advisory panel reviews in organic foods. The original NOSB recommendation stated that "the use of synthetic vitamins, minerals, and/or accessory nutrients in products labeled as organic must be limited to that which is required by regulation or recommended for enrichment and fortification by independent professional associations." The final rule, however, published in 65 F.R. 80548 did not incorporate the NOSB's language in the same way, which is why the FDA and NOP have chosen to rescind approval of the organic label for the nutrients in question.

The final rule does mention that products labeled "organic" may contain accessory ingredients if the nutrients were not produced using excluded methods (65 F.R. 80577). In this case, however, the nutrients were extracted using hexane, which violates the NOSB standards.

Monsanto Case Argued

For now I simply wish to note that the Supreme Court heard oral arguments in Monsanto v. Geertson Seed Farms on April 27, challenging the 9th Circuit's affirmation of
a nationwide injunction against the planting of Roundup Ready alfalfa. The case raises a lot of interesting questions, and I would encourage people to read the briefs at Scotuswiki. I'm looking forward to writing more when the slip opinion comes out.


Finally, for the edification of anyone who's interested in Executive Branch power struggles over food safety regulation, see David Gumpert's piece on why keeping as much jurisdictional authority under the USDA as possible might matter here. I would add that, as the USDA has moved toward support of small producers over time, so too might the FDA. I've noted concern about the pending legislation before, however, and my apprehensions presently remain.