Debating dairy alternatives in NYC

On March 22, 2018, Nigel Barrella participated in a panel discussion hosted by the New York City Bar Association’s Animal Law Committee.

The event, entitled “Say It Ain’t Soy! The Labeling of Plant-Based Alternative Foods,” was prompted by the increased attention to plant-based alternative foods, and dairy alternatives in particular. Nigel gave a presentation in favor of regulatory flexibility, arguing that it is only common sense for producers to use the same natural language that consumers use.

Also presenting were Lori Barrett-Peterson, an attorney with the New York City Law Department, who gave an overview of the history of milk regulation in New York and the United States; as well as Lorraine Lewandrowski, an attorney and dairy farmer in upstate New York, who presented perspectives shared by many dairy producers. Bari Wolf, of the law firm Vernon & Ginsburg LLC, moderated the discussion.

The entire event is available on YouTube (part 1part 2part 3part 4), and in audio form.

Earlier this year, on behalf of the Good Food Institute, Nigel filed a friend-of-the-court brief in a class-action lawsuit alleging that almond milk is a misbranded food. And last year, also for GFI, Nigel submitted a citizen petition urging FDA to clearly affirm its policy of flexibility in labeling new foods, and to reject calls for anticompetitive regulation from certain members of industry. These matters are still pending.

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Briefing on almond milk labeling

On March 9, 2018, on behalf of the Good Food Institute, Nigel Barrella submitted an amicus (friend-of-the-court) brief in Painter v. Blue Diamond Growers, a lawsuit alleging that Blue Diamond’s almond milk is misbranded under federal law. Attorneys for the plaintiff have argued that almond milk should be labeled “imitation milk.” The district court judge had rejected this argument, and the plaintiff appealed that ruling to the Ninth Circuit Court of Appeals.

In the brief, GFI argues that the Food Drug and Cosmetic Act’s “imitation” provision was not intended to reach distinct products like almond milk, and that the history of FDA’s regulation confirms this. GFI also argues that the plaintiff’s reading of the law leads to absurd results and could even be unconstitutional.  You can read the full brief here.

You can also read the other briefs in this case: Painter’s Opening Brief, Blue Diamond’s Brief, and Painter’s Reply Brief.

One unusual aspect of this case is that the plaintiff did not agree to GFI’s intervention, which forced GFI to file a motion for leave to file the brief. For more information, see that motion, the plaintiff’s opposition, and GFI’s reply. As is the practice of the Ninth Circuit, the panel deciding the case will also decide whether GFI’s brief should be filed and considered by the panel.

A decision in the case is anticipated next year. This post may be updated.

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Petitioning FDA for flexibility

On March 2, 2017, Nigel Barrella, on behalf of his client the Good Food Institute, submitted a citizen petition to FDA. The petition notes the proliferation of new, innovative foods in the marketplace, and requests that FDA formally acknowledge its policy of allowing new foods to be named in a natural, commonsense way that consumers understand.

The petition particularly addresses the increasing variety of plant-based foods, including dairy alternatives such as soy milk, almond milk, soy yogurt, and so on. Some voices in the dairy industry have asked FDA to adopt anticompetitive policies towards these products — regulating the language that these products use in order to thwart consumer understanding and connote inferiority. The petition describes how this would lead to confusion, and is inconsistent with hundreds of products already on the market. Additionally, the petition notes that this attempt to regulate natural language would likely be unconstitutional under the First Amendment.

The petition is open for public comment online. For more information, contact Nigel.

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Fed. Circuit: VA can’t use failure to report as evidence

If a veteran’s service record does not mention any reports that the veteran was sexually assaulted while in service, can the Department of Veterans Affairs (VA) use this absence of records as evidence that no sexual assault occurred? In AZ v. Shinseki, a recent decision by the Court of Appeals for the Federal Circuit, the court wrote that the VA may not make this inference; the absence of a contemporaneous report should have no value as evidence.

These consolidated cases arose when the veterans sought compensation for their post-traumatic stress disorder (PTSD), caused by having been sexually assaulted by fellow service members while they were in service. In two separate decisions addressing the veterans’ claims, the VA had weighed the absence of contemporaneous reports as evidence against the veterans’ claims, and the Court of Appeals for Veterans Claims accepted the VA’s factual findings.

The Federal Circuit appeals court found that these findings were improper. Judge Dyk, writing for the panel, examined the common law of hearsay. Although not binding law in administrative proceedings, hearsay rules are a useful guide to what evidence should be considered. The court found that an absence of an entry about the incidents of sexual assault was not admissible under traditional hearsay principles, because such reports are not reliably and regularly made; in fact, various studies (including the Defense Department’s SAPRO reports, which the court frequently referenced) have shown that at least 85% of these incidents go unreported within the chain of command.

The court went even further because the veterans in these cases admitted that they had not reported the incidents to their superiors. So the court was also faced with the question of whether an admitted failure to report has any value as evidence, regardless of hearsay rules. The court again ruled that this should not be considered as evidence against the veterans’ claims. Again turning to the common law, the court found that even the traditional (and somewhat outdated) common law principles regarding failure to report sexual assault were satisfied here; the common law looked to whether the victim told anyone about the incident, and in this case, the veterans had confided in other people, just not their commanding officers.

The court also noted, referencing DoD’s reports, that sexual assault between service members is a major problem for the military (as anyone who reads the news lately is aware.) Several unique factors in the military chill reports of such incidents, and this backdrop is relevant and inescapable.

Judge Moore dissented from the panel’s opinion. While she might have disagreed with the VA’s weighing of the evidence, she argued that the panel had no authority to decide that the evidence of non-reporting was totally irrelevant. Relevance, she wrote, is a pretty low threshold: a piece of evidence is relevant if it tends to make any material fact just slightly more or less probable than it would be otherwise. Even if 90% of sexual assaults go unreported in the military, under reasonable assumptions, the failure to report does have some very small evidentiary value.1 It’s a question of how the evidence should be weighed, not whether it should be admitted, in her view.

So Judge Moore is probably right, as a technical matter, under the general low threshold of relevance she described from Federal Rule of Evidence 401. But, to throw my two cents in, the general rules of evidence also have another principle that the panel did not note. After Rule 401 on relevance,  there is Rule 403: Relevant evidence may be excluded if its value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. On the facts of these cases, I think the VA demonstrated both unfair prejudice and some degree of confusion in attaching great weight to the failure to report; perhaps the court was too polite to say so. Given how rarely these incidents are reported, the absence of a report is of extremely little value, and if the VA can’t recognize that, they shouldn’t be allowed to consider it at all.

And from now on, as a result of this opinion, they won’t be.

  1. “Under reasonable assumptions” are my words, not hers: fans of Bayesian inference will note that, if there are any false reports, the evidentiary value of the records would be even smaller, or perhaps even negative. This is akin to the problem of false positives in medical tests: even a very small rate of false positives can mess up the evidentiary value of a test; it depends on a number of variables unknown here. Without going into equations, I don’t believe there would be a significant number of false reports in this context, but some people might hold this belief. Ironically, I think many of these people are also likely to attach undue weight to a victim’s failure to report, though their beliefs contradict each other as a matter of logic. But I digress! []
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DC Circuit: EPA must regulate biogenic carbon

In a divided opinion for the US Court of Appeals for the DC Circuit, Judge Tatel writes that the Environmental Protection Agency should be regulating carbon dioxide emissions from sources other than fossil fuels. The EPA had instead decided to study and defer regulation of biogenic sources (which come from recently living organic matter — think garbage, wood, grains, etc.) But the court holds that waiting to regulate these sources violates the clear language of the Clean Air Act.

"SmokeStack" by flickr user Out.of.Focus
CO2 from any other source would still trap the heat.

Environmental groups brought a lawsuit against EPA’s decision to defer regulation, arguing that this deferral is allowing new facilities to emit great unregulated amounts of biogenic CO2, contributing to global warming. In ruling for the environmental groups, the court found that the issue was ripe for review, and that the plain text of the Clean Air Act did not allow the EPA to take its regulation one step at a time. If the EPA is going to regulate power plants burning coal, for example, they must also regulate power plants burning trash.

Judge Kavanaugh concurred, saying the result was compelled by Circuit precedent, some of which he disagreed with. In particular, he noted his dissent in an earlier decision that gave the EPA authority to regulate CO2 emissions in certain power plants.

Judge Henderson dissented, writing that it would be best to withhold judgment because the EPA’s deferral was going to end in 2014 anyway. She also wrote that the government should have broad authority to implement its regulations one step at a time with careful study, and that the argument that many facilities would escape regulation was overblown.

The court vacates the EPA’s decision to defer regulating biogenic carbon dioxide. Under the Clean Air Act, they must regulate such sources. But the practical effects of this decision are unclear for the moment — a lot depends on how EPA responds to it, and how quickly.

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