Find records of fraud such as those discussed in this column and more in the Food Fraud Database, owned and operated by Decernis, a Food Safety Tech advertiser. Image credit: Susanne Kuehne.
Country of origin food fraud is not uncommon. In this latest case, involving a well-known Italian company, tomato products from outside of Europe were sold as 100% Italian, leading to the confiscation of 4000 tons of products. Country of Origin laws are taken very seriously in Italy and the EU, as can be seen in the EU Regulation 775/2018 Country of Origin labeling law, also known as COOL.
Known officially as The California Safe Drinking Water and Toxic Enforcement Act of 1986, California Proposition 65 reaches far beyond state boundaries and has potential regulatory implications for almost any company that manufactures, imports, and / or sells products containing listed chemicals in the state. California Prop 65 prohibits the sale of a product in California that knowingly and intentionally exposes an individual to a California Office of Environmental Health Hazard Assessment (OEHHA) listed chemical without a specific stated warning. For many food and supplement companies, the risk of opportunistic litigation based on California Prop 65 drives the need to monitor updates, new amendments and enforcement of the law.
Prop 65 Background
California Proposition 65, also known by the shortened name Prop 65, is not a ban on products or ingredients. The law is intended to inform consumers in California about exposure to a list of chemicals exceeding a defined level in products for sale, including product packaging. The regulation mandates a warning label for exposure to chemicals at a level that could cause cancer, birth defects or other reproductive harm. Guidance for upper limits (“Safe Harbor Level”) on chemicals is based on expected daily exposure. If no Safe Harbor Level exists for a chemical, the product containing a listed chemical must include a warning, unless the exposure level can be proven to not pose a significant risk of causing harm.
With the size of the California economy and the interconnected U.S. supply chain, the state law effectively reaches other states and U.S. importers. More recently, the Prop 65 requirements impact online and catalog sales, which have increased significantly during the global pandemic.
Know Your Suppliers
All companies need to proactively evaluate and document Prop 65 risks. Enforcement occurs primarily through civil litigation, resulting in specialized legal firms profiting from a company’s ignorance of the law’s extent. Even the threat of publicity from a lawsuit can cause targeted companies to settle a case.
At each point of manufacturing and distribution—supplier, manufacturer, packager, importer or distributor—regulatory teams should ask about Prop 65 compliance. The main point of responsibility is at the manufacturer, but a retailer can also be obligated for introducing a chemical at point-of-sale.
What’s New with Prop 65
The OEHHA issues notices regarding amendments to the California Code of Regulations Title 27, Article 6, covering “Clear and Reasonable Warnings”. Recently the OEHHA requested public comments on proposed amendments that would modify the content and methods for providing “short-form” warnings. The short form was originally intended for products with restricted label space.
The proposed rule would modify the existing short-form warning provisions to:
Only allow use of the short-form warning on products with five square inches or less of label space.
Eliminate use of short-form warnings for products sold via the Internet and catalogs.
Clarify how short-form warnings can be used for food products.
Require the name of at least one chemical be included in the short-form warning.
Bottomline: Know Your Business and Risk
As an advisor with more than 20 years of regulatory compliance experience in food and food ingredients, my guidance for business best practice on Prop 65 is to be proactive, maintain supply chain knowledge, and understand risk. Regulatory or legal staff, or consultant teams specializing in Prop 65, should regularly monitor for additions to the chemical list and rulemaking changes to the far-reaching law.
The year 2020 brought with it continued court filings within the food safety litigation space, and it should come as no surprise the pandemic presented its own set of unique challenges. We’ve seen disruptions to the food and beverage supply chain, noteworthy changes with recalls, and continued developments in litigation specific to product labeling. These challenges have impacted everyone involved in the industry and laid the groundwork for what’s to come in 2021.
The most notable impact the food industry has faced as a result of the pandemic has been the massive disruption of the food supply chain. Grocers and other retail food providers have seen an immense spike in demand, whereas foodservice locations, such as restaurants, universities, and hotels, have seen the exact opposite. This disruption to the supply chain has required regulatory agencies to take notice and implement temporary policies to support these businesses and consumers alike. Employees across the food industry supply chain, including agriculture and food processing, have further been classified as essential, leading federal agencies to issue guidance to these employers to help them assess COVID-19 control plans and protect their employee’s health. Further, safety concerns and bumps in unemployment compensation have imposed additional strains on worker retention and attendance.
Another interesting facet of the pandemic’s impact on the industry has been its influence in the product recall space. Believe it or not, companies have strayed from pulling their products off the shelf even if it subjects them to potential liability. Why is this? Because as mentioned earlier, the demand for food in the retail space has increased so much, it has become a necessary choice to avoid food shortages across the United States. Don’t worry, if a product possesses a health or safety threat, companies are still recalling those to protect consumers and address safety concerns, but voluntary non-health or safety related recalls may have become a thing of the past. For example, rather than recall a box of cereal or other dry good for not meeting a fill-line requirement, providers may elect to risk a false-advertising lawsuit to meet the recent shift in retail food demand.
Since 2012, there have been more than 200 class action lawsuits filed related to the labeling on food products. This past year, we observed a continuation of this trend. Class action lawsuits were filed addressing the authenticity of “all-natural” products or claims based on the “origin” of a product, while we witnessed a sharp decline in slack-fill lawsuits. Consumers are becoming increasingly aware of the ingredients in food products and are continuing to demand transparency from companies to disclose how their products are made. There has been a particular increase in claims related to the definition of vanilla—is it pure? Is it natural? The same goes for citric acid, a product that can be made naturally or synthetically. There has been continued debate within the industry about citric acid in its use within other products where some citric acid is naturally occurring either from citrus fruit, tomatoes or other fruits with citric acid. If all-natural citric acid is added into tomato paste to help with the taste, can the tomato paste still be classified as being all-natural, even if the use of citric acid is displayed on the label?
To help combat the discrepancies around all-natural products, the USDA is currently working on developing an official definition of “all-natural,” which upon its completion is anticipated to have a major impact on the labeling industry and the number of false-advertising class actions. This definitional development comes at a crucial time especially as plant-based protein continues to rise in popularity.
The next wave of claims are being filed related to plant-based protein products. These claims include trademark and First Amendment issues. For example, when is a burger, a burger? Everyone assumes a burger means a hamburger, traditionally deriving from beef, and there has been an increase in debate around when the sale of plant-based products infringe on the rights of ranchers selling traditional beef products. Can food created in a petri-dish claim the same title as products created through traditional harvesting methods? What about other genetically modified products? These issues will likely spawn additional litigation in the coming year.
Looking ahead towards 2021, we can fully anticipate cases addressing food labeling issues to continue. Historically many of these claims were filed in Northern California with one federal court there earning the moniker of the “Food Court”. Recent years have seen increased filings in New York and Illinois, but the coming year may see a decrease in cases filed in New York as a result of recent court decisions relating to pre-emption and a recent opinion of a federal appellate court disallowing the settlement of class claims on an injunction-only basis. California may also see changes in their total cases as food producers curtail product sales in California to avoid the ambit of Prop 65.1
2021 will continue to bear witness to the effects of the COVID-19 pandemic. The supply chain will continue to adjust to the varying demands of the public as they navigate safety regulations, and companies will maintain an “only-recall-if-absolutely-necessary” mindset. Many of the adjustments that businesses, consumers and regulators have had to make in light of the pandemic may also lead to long-term or permanent shifts. In fact, the Consumer Brands Association has identified a few select areas ready for change, such as the maintenance of flexibility in food labeling to ease the transfer process of products between foodservice and food retail providers. We just might find 2021 to be one of the most industry-defining years in the food safety litigation space.
Reference
California Office of Environmental Health Hazard Assessment. (n.d.). Proposition 65. Accessed December 17, 2020. Retrieved from https://oehha.ca.gov/proposition-65
FDA has issued a Request for Information in an effort to gain information and data about how to properly label foods made with cultured seafood cells. The goal is to help FDA determine next steps in ensuring that products derived from cultured seafood cells are labeled consistently and transparently. The “Request for Information: Labeling of Foods Comprised of or Containing Cultured Seafood Cells” will be published on the Federal Register on October 7, and there is a 150-day comment period.
“The FDA invites comment, particularly data and other evidence, about names or statements of identity for foods made with cultured seafood cells. The agency is also interested in information on consumer understanding of those terms and how to determine material differences between cell cultured and conventionally produced seafood,” FDA stated in an email constituent update.
Fraud in fresh produce can occur in several ways, including fraudulent organic certifications, counterfeit branding, misrepresentation of geographic origin, and the use of unapproved ripening agents. Since most fresh produce is visually identifiable, partial dilution or replacement with less expensive substances is usually not possible. Fraud in produce is commonly related to labeling claims about production practices, production location or brand names. In some parts of the world, unapproved substances may be used to speed or enhance ripening or to make fruits look more visually appealing.
In 2019, a company in Canada was charged with misrepresenting broccoli grown in California as “Product of Canada.” In 2018, 500 kg of mangoes were seized from a market in Puducherry, India, for being ripened with calcium carbide.
Figure 1. Geographic distribution of incidents of fraud in fresh produce
There are currently 108 incident records and 54 inference records for fresh produce in the Food Fraud Database. Many of these are related to fraudulent organic certificates, but there are also examples of varietal misrepresentation, falsification of geographic origin, the use of substances such as ethephon, artificial color enhancement, and counterfeit labeling.
Do you work in the fresh produce sector in the U.S. or U.K.? Please consider responding to a survey to collect information about the use of food fraud tools by members of the fresh produce sector. This is an exploratory an anonymous survey that will take six to eight minutes to complete. The results will be used in a P.D. thesis by a student at the University of Central Lancashire in the U.K. A copy of the published research will be available on the University’s website. Experience the survey or copy and paste the following link into your browser: https://uclan.eu.qualtrics.com/jfe/form/SV_3Qcog9H1V09wF01
Inspector Meerkat checking in with this week’s food fraud investigation: While scanning the Food Fraud Database, I found that coconut oil was recently added to the site. There have been six reported incidents of fraud in coconut oil since 2013, with the most recent incident reported May 2019. Five of the incidents involved coconut oils produced in India, and one incident involved products from the Philippines. Reasons for adulteration include fraudulent labeling claims, dilution or substitution with an alternate ingredient, and misrepresentation of botanical origin.
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne
Even unprocessed fruit can be a target for food fraudsters. Fraudulent fruit does not only damage a company’s brand, but it also may have pesticide and other residue levels above the permitted limit. Counterfeit branding and packaging was used in exports of 2 tons of lemons from China. It is not the first time that such fraud happened and the affected company won a lawsuit earlier this year. To prevent such mislabeling in the future, the company finally registered its brand with Chinese authorities.
The COVID-19 crisis has exacerbated existing disconnects between food supply and demand. While some may be noticing these issues on a broader scale for the first time, the reality is that there have been challenges in our food supply chains for decades. A lack of accurate data and information sharing is the core of the problem and had greater impact due to the pandemic. Outdated technologies are preventing advancements and efficiencies, resulting in the paradox of mounting food insecurity and food waste.
To bridge this disconnect, the food industry needs to implement innovative AI and machine learning technologies to prevent shortages, overages and waste as COVID-19 subsides. Solutions that enable data sharing and collaboration are essential to build more resilient food supply chains for the future.
Data-sharing technologies that can help alleviate these problems have been under development for decades, but food supply chains have been slow to innovate compared to other industries. By reviewing the top four data-sharing technologies used in food industry and the year they were introduced to food supply chains, it’s evident that the pace of technology innovation and adoption needs to accelerate to advance the industry.
A History of Technology Adoption in the Food Industry
The Barcode – 19741
We’re all familiar with the barcode—that assemblage of lines translated into numbers and letters conveying information about a product. When a cashier scans a barcode, the correct price pops up on the POS, and the sale data is recorded for inventory management. Barcodes are inexpensive and easy to implement. However, they only provide basic information, such as a product’s name, type, and price. Also, while you can glean information from a barcode, you can’t change it or add information to it. In addition, barcodes only group products by category—as opposed to radio-frequency identification (RFID), which provides a different code for every single item.
EDI First Multi-Industry Standards – 19812
Electronic data interchange (EDI) is just what it sounds like—the concept of sharing information electronically instead of on paper. Since EDI standardizes documents and the way they’re transferred, communication between business partners along the supply chain is easier, more efficient, and human error is reduced. To share information via EDI, however, software is required. This software can be challenging for businesses to implement and requires IT expertise to handle updates and maintenance.
RFID in the Food Supply Chain – 20033
RFID and RFID tags are encoded with information that can be transmitted to a reader device via radio waves, allowing businesses to identify and track products and assets. The reader device translates the radio waves into usable data, which then lands in a database for tracking and analysis.
RFID tags hold a lot more data than barcodes—and data is accessible in remote locations and easily shared along the supply chain to boost transparency and trust. Unlike barcode scanners, which need a direct line of sight to a code, RFID readers can read multiple tags at once from any direction. Businesses can use RFID to track products from producer to supplier to retailer in real time.
In 2003, Walmart rolled out a pilot program requiring 100 of its suppliers to use RFID technology by 2005.3 However, the retail giant wasn’t able to scale up the program. While prices have dropped from 35–40 cents during Walmart’s pilot to just 5 cents each as of 2018, RFID tags are still more expensive than barcodes.4 They can also be harder to implement and configure. Since active tags have such a long reach, businesses also need to ensure that scammers can’t intercept sensitive data.
Blockchain – 20175
A blockchain is a digital ledger of blocks (records) used to record data across multiple transactions. Changes are recorded in real-time, making the history unfalsifiable and transparent. Along the food supply chain, users can tag food, materials, compliance certificates and more with a set of information that’s recorded on the blockchain. Partners can easily follow the item through the physical supply chain, and new information is recorded in real-time.
Blockchain is more secure and transparent, less vulnerable to fraud, and more scalable than technologies like RFID. When paired with embedded sensors and RFID tags, the tech offers easier record-keeping and better provenance tracking, so it can address and help solve traceability problems. Blockchain boosts trust by reducing food falsification and decreasing delays in the supply chain.6
On the negative side, the cost of transaction processing with blockchain is high. Not to mention, the technology is confusing to many, which hinders adoption. Finally, while more transparency is good news, there’s such a thing as too much transparency; there needs to be a balance, so competitors don’t have too much access to sensitive data.
Cloud-Based Demand Forecasting – 2019 to present7
Cloud-based demand forecasting uses machine learning and AI to predict demand for various products at different points in the food supply chain. This technology leverages other technologies on this list to enhance communication across supply chain partners and improve the accuracy of demand forecasting, resulting in less waste and more profit for the food industry. It enables huge volumes of data to be used to predict demand, including past buying patterns, market changes, weather, events and holidays, social media input and more to create a more accurate picture of demand.
The alternative to cloud-based demand forecasting that is still in use today involves Excel or manual spreadsheets and lots of number crunching, which are time-intensive and prone to human error. This manual approach is not a sustainable process, but AI, machine learning and automation can step in to resolve these issues.
Obtaining real-time insights from a centralized, accurate and accessible data source enables food suppliers, brokers, distributors, brands and retailers to share information and be nimble, improving their ability to adjust supply in response to factors influencing demand.8 This, in turn, reduces cost, time and food waste, since brands can accurately predict how much to produce down to the individual SKU level, where to send it and even what factors might impact it along the way.
Speeding Up Adoption
As illustrated in Figure 1, the pace of technology change in the food industry has been slow compared to other industries, such as music and telecommunications. But we now have the tools, the data and the brainpower to create more resilient food supply chains.
Figure 1. The pace of technology change in the food industry has been slow compared to other industries. Figure courtesy of Crisp.
Given the inherent connectivity of partners in the food supply chain, we now need to work together to connect information systems in ways that give us the insights needed to deliver exactly the rights foods to the right places, at the right time. This will not only improve consumer satisfaction but will also protect revenue and margins up and down food supply chains and reduce global waste.
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne
Based on a classification system that was established more than 150 years ago, wines from the world-renowned region of Bordeaux can fetch high prices and enjoy a high degree of recognition and popularity. The Conseil Interprofessionnel du Vin de Bordeaux (CIVB) and Chinese authorities set a precedent by sentencing a wine supplier for offering fake “Bordeaux” wines. Nearly 10,000 bottles of mislabeled “Bordeaux” wines were seized, and the guilty judgment included fines and a suspended prison sentence.
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne.
Pasta is widely consumed around the world, and prices have increased because people have been stockpiling it during the COVID-19 pandemic. Durum wheat, the basic wheat for pasta, is the second most cultivated wheat around the world after common bread wheat, claiming 15–30% higher prices, and therefore an attractive target for food fraud. Out of 150 Argentinian pasta samples that were analyzed with a new method based on Fourier transform infrared spectroscopy (FTIR), in combination with Partial-Least Squares Discriminant Analysis (PLS-DA) and Linear Discriminant Analysis (LDA), 112 were found to be altered with common wheat. Argentinian labeling law requires durum wheat pasta to be based on 100% durum wheat.
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