food allergy labeling, gluten-free, organic certification, cochineal extract, carmine, misbranding, unfair competition, food safety regulations, Fifth Amendment

Document Type



The start of 2009 found the nation transitioning to a new presidential administration, speculating on the impact new appointees to the executive branch may have on regulatory priorities and monitoring a bill' making its way through Congress that seeks a substantial overhaul of the food regulatory system. This version of the Food Law Update will analyze two major developments in food allergy labeling: finalization of rules requiring the labeling of Cochineal extract/ carmine and an analysis of the proposed "gluten-free" product labels. The update next discusses the execution of an equivalency agreement between the United States and Canada with respect to organic certification. Both countries expect this agreement to facilitate further development of the organic industry in their respective nations. Finally, this update profiles four important cases decided during the first six months of 2009. The first two cases involve allegations of misbranding. The third case resolves a preemption issue centered on the role of state unfair competition claims as secondary enforcement models for the national organic program. The final case addresses another constitutional element-the intersection of food safety regulations with the takings clause of the Fifth Amendment.