Where's the Beef - An Examination of the Pink Slime ...mckinneylaw.iu.edu/ihlr/pdf/vol10p473.pdf · of a beef carcass is lean-beef trimmings.8 Given consumers' high beef consumption,

WHERE'S THE BEEF?

AN EXAMINATION OF THE "PINK SLIME"

CONTROVERSY AND THE IMPLICATIONS OF THE REALBEEF ACT ON STATE TRUTH-IN-MENU LAWS

CRYSTAL T. WILLIAMS, Esq.1

I. INTRODUCTION ................................ ...... 474

II. WHAT Is LFTB (COMMONLY REFERRED TO AS "PINK

SLIME")? .......................................... 474

III. THE CONTROVERSY ........................... 477

IV. LEGISLATIVE HISTORY AND THE PROPOSED REAL BEEF

ACT .................................... .......... 479

A. Ingredients vs. Processing Aids .................. 480B. LFTB is Considered a Processing Aid Under CurrentFDA Regulations ........................... ...... 482C. FMIA & The REAL Beef Act .................... 483

V. IMPLICATIONS OF THE REAL BEEF ACT ON THERESTAURANT INDUSTRY. .......................... 483

A. The REAL Beef Act does not Apply to Restaurants.. 484

B. The REAL Beef Act Applies to Restaurants ... .... 486VI. JURISDICTIONAL ISSUES POSED BY STATE TRUTH-IN-MENU

REGULATIONS ............................ ...... 488A. California .............................. ....... 489B. Hawaii, Illinois, and South Dakota........ ........... 490C. Minnesota ............................. ....... 490D. Rhode Island and New Jersey. ................... 491

VII. CONCLUSION ............................. ..... 492

1 Crystal T. Williams is an associate attorney at Barnes &Thornburg, LLP, in Indianapolis, Indiana. Williams concentrates herpractice in general litigation, with a focus of food law. Williams hasexperience advising clients in food labeling disputes (e.g. health, nutrientcontent and structure/function claims, allergens, Nutrition Facts, andmenu labeling) and food advertising strategy (e.g. weight management,advertisements geared toward children, competitive advertisements).Williams also has experience advising clients in the food truck industry (aswell as restaurants and food servicers looking to get into the food truckindustry) to help them navigate the applicable local and city-specificordinances that govern food truck dimensions, construction, licenses,permitting, food preparation, and parking.

INDIANA HEALTH LAW REVIEW

I. INTRODUCTION

Recent criticism concerning the use of lean finelytextured beef ("LFTB"), commonly referred to as "pinkslime," has sparked a national debate about whether LFTBshould be included on the label of ground beef products soldto the end consumers. On March 30, 2012, the RequiringEasy and Accurate Labeling Beef Act (the "REAL Beef Act")was introduced to Congress. 2 If passed, the REAL Beef Actwould require that "labels on packages of meat include astatement on whether the meat contains [LFTB ."3

The express language of the REAL Beef Act and itslegislative history are not clear on whether the disclosurewill be required for restaurants. This article is timely andrelevant to the restaurant industry because it addresses theimpact the REAL Beef Act may have on restaurant menulabeling. Further, given the disclosure requirements of statetruth-in-menu laws, an examination into how the REALBeef Act will be applied on a state level is critical.

First, this article explains the history of LFTB, includinghow the substance is made and the impact it has on groundbeef production. Second, this article will discuss the currentcontroversy concerning the use of LFTB in ground beefproducts. Third, this article will discuss the current law onfood labeling and how the REAL Beef Act will changecurrent legislation. Fourth, this article will analyze theimpact the REAL Beef Act may have on the restaurantindustry. Finally, this article will discuss the interplaybetween the REAL Beef Act and state truth-in-menu laws.

II. WHAT IS LFTB (COVVIONLY REFERRED TO AS "PINK SLIME")?

Today, "[g]round beef is the most popularly consumedbeef product among American consumers" 4 and accounts for

2 Requiring Easy and Accurate Labeling Beef Act, H.R. 4346,112th Cong. § 2(d) (2012).

3 Id.4 JOEL L. GREENE, CONG. RESEARCH SERV., R42473, LEAN FINELY

TEXTURED BEEF: THE "PINK SLIME" CONTROVERSY 1 (2012), available athttp://www.fas.org/sgp/crs/misclR42473.pdf.

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"PINK SLIME" AND Ti E REAL BEEF ACT

almost 45% of all beef consumed in the United States.5

Ground beef is federally regulated and consists of choppedfresh and/or frozen beef with or without seasoning, with nomore than 30% fat, and with no added water, phosphates,binders, or extenders. 6 "Ground beef is produced from anypart of the boneless beef carcass, but usually beeftrimmings, which are a mixture of fat and meat that aretrimmed from larger beef cuts."7 In fact, approximately 25%of a beef carcass is lean-beef trimmings.8 Given consumers'high beef consumption, the recent controversy concerningLFTB has had a profound effect on the beef industry.9

According to the United States Department ofAgriculture ("USDA"), LFTB is a meat product derived fromground beef.10 Beef Products, Inc. ("BPI") is the world'sleading producer of lean beef from fresh beef trimmings,and in 1991, the company developed a process thatincreases the amount of lean meat that can be obtainedfrom livestock carcasses. 11 The company purchases beeftrimmings from USDA inspected beef plants and sends thetrimmings through a centrifuge process that separates thefat from the lean meat. 12 After the centrifuge process, thecompany uses ammonium hydroxide ("ammonia") to help

5 National Cattelman's Beef Association, Average Annual PerCapita Consumption Beef Cuts and Ground Beef BEEFUSA.org, http://www.beefusa.org/CMDoes/BeefUSA/Resources/Statistics/averageannualpercapitaconsumptionbeefcutsandgroundbeef559.pdf (last visited Apr.07, 2013).

6 9 C.F.R. § 319.15(a) (2013).7 GREENE, supra note 3.8 Id. at 2.9 Richard L. Frank & Robert A. Hahn, The 'Pink Slime Affair

Should Lean Finely Textured Beef Be Labeled., 2 FOOD AND DRUG POL'YF., May 2012, at 3 (noting that LFTB is normally found in ground beef,but it is also combined with other beef components such as lunchmeats,sausage products and canned meats).

10 USDA Announces Additional Choices for Beef Products in theUpcoming School Year, USDA.GOV (March 15, 2012), http://www.usda.gov/wps/portallusda/usdahome?contentidonly=true&contentid=2012/03/0094.xml.

11 About BPI, BEEF PRODUCTS INC., http://www.beefproducts.com/history.php (last visited Apr. 07, 2013).

12 GREENE, supra note 3, at 2.

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eliminate harmful bacteria such as E. coi and Salmonella.1 3

Ammonia, a compound that results from combining water,hydrogen, and nitrogen, is naturally found in theenvironment (i.e. air, water, and soil), plants and animals,and humans. 14 The compound is used extensively for foodprocessing and can be found in baked goods, cheese,chocolate, and pudding.15

Also known as "pH enhancement," treating the meatwith ammonia raises the pH level in ground beef, whichresults in higher levels of ammonia. 16 Ground beef that doesnot include LFTB naturally contains approximately 100-150parts per million ("ppm") of ammonia; however LFTB,contains between 400-500 ppm of ammonia.17 Furthermore,pH enhancement makes LFTB approximately one hundredtimes more alkaline than untreated beef.18 After pHenhancement, the LFTB mixture is flash frozen, pressed,combined with ground beef trimmings, and finally packagedand sold to grocery stores and restaurants. 19

BPI estimates that LFTB "has been served in over 300billion meals. 20 Until recently, LFTB was a popular productand widely used by restaurants, supermarket chains, andeven the National School Lunch Program.21 In March 2012,

13 Id. (Ammonia hydroxide is created when the ammonia gas mixeswith the water in the meat.).

14 Questions and Answers about Ammonium Hydroxide Use inFood Production, FOODINSIGHT.ORG, (Dec. 30, 2009), http://www.foodinsight.org/Resources/Detail.aspx?topic=Questions and Answers-about_AmmoniumHydroxideUseinFoodProduction.

15 Id16 Ammonium Hydroxide, BEEF PRODUCTS, INC., http://beef

products.com/ammoniumhydroxide.php (last visited Apr. 07, 2013).17 Helena Bottemiller, Slimegate: Should USDA Require Labeling

for LFTB, FOOD SAFETY NEWS, (Apr. 03, 2012), http://www.foodsafetynews.com/2012/04/slimegate-should-usda-require-labeling-for-lftb/.

18 Id.19 GREENE, supra note 3, at 2.20 BPI Lean Finely Textured Beef - What It's Good In, BEEF

PRODUCTS, INC., http://beefproducts.com/what-its-good-in.php (lastvisited Apr. 7, 2013).

21 Helena Bottemiller, Fast Food Companies AbandonAmmoniated Beef FOOD SAFETY NEWS (Jan. 06, 2012), http://www.foodsafetynews.com/20 12/0 1/fast-food-companies-abandon-ammoniated-bee.

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"PINK SLIME" AND THE REAL BEE i AcT

critics of LFTB spoke out about the possible dangers ofLFTB, claiming that it is unsafe for consumption, andarguing that food labels should inform consumers that theground beef products they purchase contain LFTB.

II. THE CONTROVERSY

LFTB supporters argue that LFTB is leaner thantrimmings produced through more conventional processesused to separate meat from fat such as a simple hand knifetechnique. As a result, the beef industry can "recover leanmeat that would otherwise be wasted."22 LFTB is normallyadded to ground beef and makes up 10-20% of ground beef,increasing the "leanness of the meat products."23 Moreover,some argue that "LFTB reduces the fat content of groundbeef products, because LFTB is 90 percent or higher lean."2 4

Provided LFTB makes ground beef products leaner, LFTBgives consumers a leaner, healthier meat. Furthermore,food and safety advocates point out that LFTB is approvedby the USDA.25 In fact, the FDA labels the compound as a"Generally Recognized As Safe" ("GRAS") substance. 26 In arecent news release, the USDA appeared to agree with theFDA and the use of LFTB, stating "the USDA continues toaffirm the safety of [LFTB] product for all consumers andurges customers to consult science based information on thesafety and quality of [the] product."27

Still, critics point to the high levels of ammonia andalkaline present in LFTB in contrast to untreated groundbeef. Critics also refute the claim that high levels of

22 Lean Finely Textured Beef Fact Sheet, (Mar. 28, 2012), http:/www.kipnews.org/wp-content/uploads/2012/04/Lean-Finely-Textured-Beef-Fact- Sheet 1 .pdf.

23 GREENE, supra note 3, at 3.24 Frank & Hahn, supra note 8, at 3.25 Id. at 2.26 GREENE, supra note 3, at 3; See also 21 C.F.R. § 170.30 (2013)

(noting that a substance qualifies as GRAS if it is generally recognized,among experts qualified by scientific training and experience toevaluate their safety, as safe for its intended use).

27 USDA Announces Additional Choices for Beef Products in theUpcoming School Year, supra note 9.

2013 477


ammonia are good for ground beef products because theyhelp kill deadly bacteria.28 They argue that because only asmall percentage of LFTB is added to ground beef, it cannotpossibly make ground beef safer and to think otherwise isfaulty logic. Furthermore, these same critics argue thatregardless of whether LFTB is safe for human consumption,"the products should be labeled so that consumers will beable to choose whether to purchase it."29

Whether or not beef products containing LFTB should belabeled as such has become the primary focus of the LFTBdebate. Proponents of LFTB argue that a mandate requiringdisclosure of LFTB on food labels should never be passedbecause mandatory labeling of LFTB is unconstitutional. 3 0

Without scientific evidence that LFTB "poses a healthhazard or is nutritionally inferior," or serves a substantialgovernmental interest, supporters of LFTB claim that a lawrequiring labeling of LFTB "would run afoul of the FirstAmendment . ... .31 Furthermore, proponents explain thatfood labeling is a form of commercial speech protected bythe First Amendment, and as a result, there are limits toCongress's power to mandate disclosures on food labels. 32

In International Dairy Foods Association v. Amestoy, theSecond Circuit Court of Appeals ruled that "consumercuriosity alone is not a strong enough state interest tosustain the compulsion of even an accurate, factualstatement in a commercial context."33 The court of appealsgoes on to explain that if there is a reasonable concern forhuman health or safety, disclosure may be required. 34 TheSupreme Court, however, has yet to rule on this issue. Inthe case of LFTB, increased levels of ammonia and alkaline,if proven unsafe, would remove potential First Amendmentlegal challenges to the required labeling of LFTB.

Critics of LFTB do not consider LFTB "ground beef' and

28 Frank & Hahn, supra note 8, at 3.29 Id. at 5.30 Id. at 6.31 Id32 Id.33 Inf IDairy Foods Assin. v. Amestoy, 92 F.3d 67, 74 (2nd Cir. 1996).34 Id

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"PINK SLIMIE" AND THE I REAL BEEF ACT

contend that not including LFTB on food labels is a form offraudulent labeling.35 Congresswoman Chelli Pingreehelped voice the concern of LFTB critics by introducing theREAL Beef Act to Congress, which would require "that beefcontaining LFTB be labeled to disclose that fact to the endpurchaser."36

LFTB supporters, however, caution those in favor ofincluding LFTB on food labels because doing so createsanother set of problems. According to the American MeatInstitute ("AMI"), "if [LFTB1 is not used in fresh ground beefproducts, approximately 1.5 million additional head of cattlewould need to be harvested annually to make up thedifference." 37 As a result, consumers could end up payinghigher prices for LFTB free ground beef.38 U.S. regulatorsare also concerned that requiring food labels to includeLFTB might "open the floodgates" to including severalprocessing aids on food labels that only show up at lowlevels. 39 Finally, LFTB advocates claim that there is noneed to include LFTB as an ingredient on food labelsbecause "nothing is being added that is not beef."40

IV. LEGISLATIVE HISTORY AND THE PROPOSED REAL BEEF

ACT

Given the importance of meat in the nation's total supplyof food, "it is essential . .. that meat and meat food products. . . are properly marked, labeled and packaged." 41 Thelabeling of meat products is governed by the Federal Meatand Inspection Act ("FMIA"). One of the goals of the FMIA

35 Bottemiller, supra note 16.36 Bettina Elias Siegel, Congresswoman Pingree Introduces The

REAL Beef Act (Requiring Easy and Accurate Labeling), LUNCH TRAY(Mar. 30, 2012), http://www.thelunchtray.com/congresswoman-pingree-introduces-the-the-real-beef-act-requiring-easy- and-accurate-labeling/.

37 Questions and Answers About Lean Finely Textured BeefAMERICAN MEAT INSTITUTE, www.meatami.com/ht/a/GetDocumentActionli/76184 (last visited Apr. 07, 2013).

38 GREENE, supra note 3, at 8-9.39 Bottemiller, supra note 16.40 Id.41 21 U.S.C. § 602 (2012).

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is to regulate meat and meat food products that may beinjurious to consumers because they are misbranded. 42

Critics of LFTB have turned to the FMIA to push for theinclusion of LFTB on food labels. To determine whichelements of food production must be included in theingredients list on food labels, it is important to understandthe distinction between ingredients and processing aids.

A. Ingredients vs. Processing Aids

Both ingredients and processing aids can fall within theguidelines of GRAS. Typically, GRAS is a classification usedfor ingredients; however, numerous processing aids are alsorecognized as GRAS and are allowed in food production.According to the FDA, an ingredient or food additive is "anysubstance the intended use of which results or mayreasonably be expected to result - directly or indirectly - inits becoming a component or otherwise affectingcharacteristics of any food." 4 3 Elements of food productionthat fall into this category are required on food labelsbecause they are found at significant levels in the finalproduct and technically alter the final product. 44

Alternatively, processing aids are not found at significantlevels and have no "functional or technical effects" on thefinal product. Consequently, processing aids are notrequired in ingredients lists on food labels.

Drawing the line between ingredients and processingaids can be difficult. Dr. Richard Raymond, formerundersecretary for food safety at the USDA, asserts thatthere is not an "exact science" on the classification ofprocessing aids, and as a result, "some processes getexcluded from the club."4 5 The recent controversy

42 Id43 Overview of Food Ingredients, Additives and Colors, FDA.GOV

(Apr. 2010) http://www.fda.gov/Food/IngredientsPackagingLabeling/FoodAdditiveslngredients/ucm094211 .htm.

44 d.45 James Andrews, Processing Aids, Labeling and Pink Slime'

FOOD SAFETY NEWS (Mar. 26, 2012), http://www.foodsafetynews.com/2012/03/processing-aids-labeling-and-pink-slime/.

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"PINK SLIME" AND 'HE REAL BEEi' ACT 4

surrounding the use of "meat glue" in beef products is agood example of the line drawing problem betweeningredients and processing aids. Meat glue is well known inthe food industry practice. 46 Meat glue is a combination ofTransglutaminase ("TG") and beef fibrin, which areenzymes that bind proteins together, allowing different cutsof meat to mold together to form a uniform size. 4 7 Accordingto food service providers, meat glue "allow [s] for flexibilityin the sizes and shapes of cuts they serve patrons, . . . whichis especially helpful if [you are] serving a large number ofpeople."4 8 Meat glue can also be found in other food productsincluding imitation crabmeat, pasta, and dairy products. 49

Nonetheless, some question the practice, claiming that "it ispossible that different cuts put together could be moresusceptible to contamination by potentially introducingpathogens into the center of a pieced-together steak."50

Unlike the LFTB controversy, whether TG and beef fibrinshould be included on food labels is not at issue. The USDArecognizes TG and beef fibrin as ingredients, and as aresult, food manufacturers are federally required to includeTG and beef fibrin on food labels. 51 Consumers, however,are not likely to see TG or beef fibrin on food labels becausethe most common use of the enzymes is at the food servicelevel. 52

The classification of meat glue as an ingredient issomewhat puzzling because it has characteristics of aprocessing aid according to the FDA's definition (see below),but it is recognized as a GRAS substance, similar to LFTB.Without more guidance from the USDA, determining what

46 Helena Bottemiller, Meat Industry Defends 'Meat Glue'as Safe,No Secret, FOOD SAFETY NEWS (May 11, 2012), http://www.foodsafetynews.com/2012/05/meat-industry-defends-meat-glue-as-safe-no-secret/.

47 Id.48 Id49 James B. Kelleher, Industry Defends Ingredient Critics Deride

as Meat Glue' CHICAGO TRIBUNE (May 11, 2012), http://articles.chicagotribune.com/2012-05-11/news/sns-rt-usa-foodmeat-gluel4e8gb8xz2O120511_1 ammonia-treated-beef-ground-beef-beef-products.

50 Bottemiller, supra note 45.51 Id52 I[d

2013 481.


should qualify as an ingredient or processing aid willcontinue to present challenges when it comes to properlylabeling substances used in meat food products.

B. LFTB is Considered a Processing Aid Under CurrentFDA Regulations

Under current FDA regulations, LFTB is considered aprocessing aid. Processing aids fall into one of threecategories: (1) substances that are added to a food during itsprocessing but that are removed in some manner from thefood before it is packaged in its finished form; (2) substancesthat are added to a food during processing, are convertedinto components normally present in the food, and do notsignificantly increase the amount of the constituentsnaturally found in the food; or (3) substances that are addedto a food for their technical or functional effect in theprocessing but are present in the finished food atinsignificant levels and do not have any technical orfunctional effect in that food. 53 The third category is "wide-reaching" and includes a number of substances, includingammonia.54

Although a substance may be GRAS, it may not besuitable in the production of meat. The Food Safety andInspection Service ("FSIS"), the public health agency in theUSDA, determines whether a GRAS substance is safe foruse in meat production.55 The FSIS concluded thatammonia is a safe and suitable ingredient used in theproduction of meat if used as a pH control agent in brinesolutions or as an agent to kill microbes from beef carcassesand boneless beef trimmings. 56 When used in LFTB,ammonia serves to kill microbes, making the pink slime

53 21 C.F.R. 101.100 (a)(3) (2013).54 Andrews, supra note 44.55 VANESSA K. BURROWS & CYNTHIA BROUGHER, CONG. RESEARCH

SERV., R34247, FEDERAL REGULATION OF SUBSTANCES GENERALLYRECOGNIZED As SAFE (GRAS) AND THE USE OF CARBON MONOXIDE INPACKAGING FOR MEAT AND FISH 12 (2008).

56 FSIS Directive 7120.1, Safe and Suitable Ingredients Used inthe Production of Meat, Poultry, and Egg Products, (U.S.D.A. 2012),available at http'//wwwfsis.usda.gov/OPPDFad~t/ESISDietivesf7120. 1.pdf

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"PINK SLIME" AND THE REAL BEEF ACT

safe for meat production. Therefore, according to the FDAand USDA, ammonia is a GRAS processing aid used in meatproduction and does not have to be included in theingredient lists on food labels. Since LFTB is a mixture ofammonia and ground beef, it too is recognized as aprocessing aid and, thus, food makers are not required tolist it on the labels of ground beef products. As a result,critics of LFTB have turned to the FMIA to push for theinclusion of LFTB on food labels.

C FMIA & The REAL Beef Act

Section 601(n)(11) of the FMIA states that the termmisbranded applies to "any carcass . . . meat or meat foodproduct . .. if it bears or contains any artificial flavoring,artificial coloring, or chemical preservative, unless it bearslabeling stating that fact.5 7 As previously mentioned, theREAL Beef Act, if approved, would amend section601(n)(11) of the FMIA to require labels on packages ofmeat to include a statement on whether the meat containsLFTB.58 Specifically, the REAL Beef Act would amend theFMIA to provide that a meat product is misbranded if "atthe final point of sale it contains low-temperature renderedproduct," also known as LFTB, "unless it bears a labelstating that it contains such product."59 The intent of theREAL Beef Act is to notify consumers about the presence ofLFTB, so they can make an informed decision about thefood they eat. The REAL Beef Act, however, does not specifyhow much LFTB must be present in the ground beef, 60 anddoes not state whether the REAL Beef Act's labelingrequirement would apply to restaurant menus.

V. IMPLICATIONS OF THE REAL BEEF ACT ON THE

RESTAURANT INDUSTRY

The REAL Beef Act is silent about whether it applies to

57 21 U.S.C. § 601 (2012).58 Requiring Easy and Accurate Labeling Beef Act, supra note 1.59 Id.60 Frank & Hahn, supra note 8, at 5.

4832013


restaurants, and, thus, a strict reading of the REAL BeefAct suggests that restaurants might not be required todisclose the use of LFTB on their menus. Silence, however,does not necessarily mean that legislators did not intend forthe REAL Beef Act to apply to the restaurant industry. Infact, the reluctance to pinpoint a particular industry or foodestablishment may have been intended because it allows forbroad application of the REAL Beef Act.

A. The REAL BeefAct does not Apply to Restaurants

According to Congresswoman Pingree, if a beef productcontains LFTB, "[consumers] ought to be able to know thatwhen [they] pick it up in the grocery store."6 1 Pingree'sstatement implies that the REAL Beef Act may only applyto grocery stores. In addition, the express language of theREAL Beef Act favors the idea that the REAL Beef Act onlyapplies to grocery stores. The REAL Beef Act states thatLFTB sold in a package or container at the final point ofsale without proper labeling would be deemedmisbranded.62 Since the REAL Beef Act refers to beefproducts provided in a package or container, restaurantsmay not be subject to the REAL Beef Act.

Restaurants deliver their final product to consumersmuch differently than grocery stores. When a customerdines at a restaurant, the food product is not provided in apackage or container at the final point of sale63 unless thecustomer places a to-go order, similar to a fast foodestablishment. In the case of a to-go order, the meat or meatfood product is provided in a package or container andnormally presented to the customer at the final point ofsale. This suggests that restaurants would not be requiredto disclose the presence of LFTB on menus for customers

61 Introducing REAL Beef Act to Require Pink Slime Labeling,PINGREE.HOUSE.GOV (Mar. 30, 2012), http://pingree.house.gov/index.php?option=comcontent&task=view&id=776&Itemid=24.

62 Requiring Easy and Accurate Labeling Beef Act, H.R. 4346,112th Cong. § 2(d) (2012).

63 Definition of Point of Sale, INVESTOPEDIA, http:/wwwinvestopediacom/terms/p/point-of-sale. asp#axzz22PYORCCj (lastvIsited Mar. 07,2013).

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who eat at the restaurant, but disclosure would be requiredfor customers who take their food home instead. Thisinconsistency should give restaurants pause when it comesto menu labeling. The FMIA's definition of label andlabeling, however, also suggests that the legislation wasaimed at grocery stores rather than restaurants.

The FMIA defines label as a "display of written, printed,or graphic matter upon the immediate container . . . of anyarticle" 64 and defines labeling as "all labels and otherwritten printed, or graphic matter (1) upon any article orany of its containers or wrappers, or (2) accompanying sucharticle."65 While both definitions refer to the labeling ofcontainers or packages, neither definition mentions menulabeling. This omission further suggests that the REAL BeefAct would not amend the FMIA to apply to restaurants.

Finally, according to the USDA, TG and beef fibrin usedin meat glue are considered ingredients and must beindicated in the ingredients list on food labels. Asmentioned supra, consumers are not likely to see TG or beeffibrin on food labels because the most common use of thesubstances is at the food service level.6 6 Similar to meatglue, LFTB is used at the food service level. Sincerestaurants will be serving LFTB at the food service leveland it is recognized as a processing aid, it is unlikely thatrestaurants will have to disclose the use of LFTB on menus.

Applying the REAL Beef Act to grocery stores is morestraightforward than applying the REAL Beef Act torestaurants. If the REAL Beef Act only applies to grocerystores, restaurants would not have to disclose the use ofLFTB on their menus. Fast food establishments andrestaurants that prepare to-go orders, however, may berequired to disclose the use of LFTB on any package orcontainer that is used to serve their food products.Therefore, whether a restaurant is subject to the REAL BeefAct may be determined simply by how they present theirfood products to consumers.

64 21 U.S.C. § 601(o) (2012).65 Id. at § 601(p).66 Bottemiller, supra note 45.

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B. The REAL BeefAct Applies to Restaurants

According to Congresswoman Pingree, the REAL BeefAct is about choice and transparency. 67 Pingree explainedthat while consumers may not have a choice about whetherLFTB is used in beef products, they should be able to choosewhether they want to buy beef products containing LFTB.68Consumers, however, cannot make that decision "unlessthey know whether or not [LFTB is] in the product they arebuying."6 9 In other words, the REAL Beef Act aims to giveconsumers accurate information regarding the presence ofLFTB in their food, and allows them to make an informeddecision about whether they want to purchase the foodproduct. This broad explanation suggests that the REALBeef Act is intended to apply to all food service providersthat use LFTB, including restaurants. Transparency in therestaurant industry would require some form of labeling,most likely on the menu, so that consumers can identifywhat menu items contain LFTB and avoid ordering thoseitems if they so choose.

Menu labeling seems to be the most logical place todisclose the presence of LFTB in meat products, because themajority of consumers will look at the menu before theyorder. It is likely that restaurants will only have to disclosethe presence of LFTB, which can be easily added to thedescription of the menu item. For example, an entr6e thatincludes beef such as spaghetti may list the ingredientsunder the menu item as follows: Spaghetti - whole wheatnoodles, marinara sauce, ground beef (LFTB used). Ablanket statement on the menu that states that 'All beefproducts are made with LFTB" may also suffice. Such alabel is clear and may encourage customers to inquire aboutthe presence of LFTB in their specific entree.

Even if the REAL Beef Act does not directly apply torestaurants, it may cause restaurants to voluntarily disclose

67 Introducing REAL Beef Act to Require Pink Slime Labeling,PINGREE.HOUSE.GOV (Mar. 30, 2012), http://pingree.house.gov/index.php?option=comcontent&task=view&id=776&Itemid=24.

6 9 Id6 9 Id.

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the presence (or absence) of LFTB on their menus. TheUSDA, which runs the school lunch program, gave schooldistricts the choice of ordering ground beef that containsLFTB.70 As a result, only three states have chosen tocontinue to use ground beef products containing LFTB.71Similarly, popular fast food establishments have voluntarilychosen not to use LFTB in their ground beef products. 72

Given the customer backlash surrounding LFTB andcustomers' insistence on properly labeling LFTB,restaurants may voluntarily choose to disclose the use ofLFTB. Again, it is about transparency and choice, andcustomers might feel more comfortable eating at arestaurant that is upfront and honest about the productsthey serve. 73 Some may argue that restaurants could losebusiness by disclosing such information because customerswill choose not to eat there. 74 That might not be the case,however. First, customers might be hesitant to eat at arestaurant that does not disclose the use of LFTB becausethey want more transparency about what they areconsuming.75 Second, disclosing the use of LFTB does notmean that customers will choose not to buy the product.76

Many customers may be okay with eating beef productscontaining LFTB, but they may simply want to know when

70 Bettina Elias Siegel, USDA To Allow Voluntary Labeling of LFTB,Branstad Requests Congressional Hearing, LUNCH TRAY (Apr. 02, 202),http://www.thelunchtray.oom/breakingusda-to-allw-voluntary-labeling-oflfb-branstad-requests-cngressional-hearing/.

71 Most Schools Opt Out of 'Pink Slime" in Lunches, USDA Says,CBS NEWS (June 5, 2012), http://www.cbsnews.com/8301-504763_162-57447621- 10391704/most-schools-opt-out-of-pink-slime-in-lunches-usda-says/.

72 Matthew Rosenbaum, McDonald's Announces End to PinkSlime' in Burgers (Feb. 01, 2012), http://abcnews.go.com/blogs/health/2012/02/0 1/mcdonalds-announces-end-to-pink-slime-in-burgers/ (notingthat McDonalds, Taco Bell, and Burger King no longer purchase beefwith LFTB in them).

73 Ashley Arthur, Note, Combating Obesity. Our Country's Needfor a National Standard to Replace the Growing Patchwork of LocalMenu LabelingLaws, 7 Ind. Health L. Rev. 305, 325. (2010).

7 4 Id.75' SeeId. at 325-26.7 6 Id.

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they are doing so. Furthermore, if one restaurantvoluntarily discloses the use of LFTB, it may put morepressure on other restaurants to do the same. As a result,disclosing the use of LFTB on menus could become anindustry standard, which can have the same impact as aregulation.

If legislators agree with Congresswoman Pingree thatthe intent of the REAL Beef Act is to provide customerswith transparency and choice concerning the food productsthey consume so they can make an informed decision, thenit is likely the REAL Beef Act would apply to restaurants.Consequently, restaurants would be required to disclose thepresence of LFTB in food products, which would most likelybe placed on their menus.

VI. JURISDICTIONAL ISSUES POSED BY STATE TRUTH-IN-MENUREGULATIONS

Jurisdictional issues related to ground beef products soldin restaurants77 may make practical application of theREAL Beef Act cumbersome. Even if the REAL Beef Act didnot have the effect of federally mandating that restaurantsdisclose the use of LFTB, proponents of the REAL Beef Actclaim that "many states' truth-in-menu laws would have theeffect of applying the bill's disclosure requirement tomenus."78 While the idea of relying on state truth-in-menulaws to enforce disclosure requirements to menus isplausible, it may not be likely. Today, truth-in-menu lawsare governed by various agencies and administrativeentities seeking to make labeling of food more accurate. 79

Still relatively new, truth-in-menu laws are constantlybeing revised, and, in most states "[r]estaurants are notcurrently required to divulge their ingredients lists [recipes]to their guests."80

77 Frank & Hahn, supra note 8, at 5.78 Id79 Truth in Menus Managing Hospitality Risk, NATIONAL SPECIALTY

UNDERWRITERS, INC., http://www.nsui.com/wp-content/uploads/2012/07/MHRMenus.pdf (last visited Apr. 07, 2013).

80 Id

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A comprehensive search of the laws of every statereveals that only seven states have laws that address thelabeling of ingredients on restaurant menus. The sevenstates are California, Hawaii, Illinois, South Dakota,Minnesota, New Jersey, and Rhode Island. Of those states,California, Hawaii, Illinois, Minnesota, and South Dakotahave laws that addressing the use of imitation hamburgersold or served in restaurants. Generally speaking, theselaws state that if imitation hamburger is sold or served inrestaurants, a list of the ingredients must appear on themenu. Each state, however, defines imitation differentlyand has varying menu labeling requirements. New Jerseyand Rhode Island's truth-in-menu laws focus on themisrepresentation of identity on food menus.

A. California

In California,

If imitation hamburger is sold or served ina restaurant a list of ingredients thereof shallappear on the menu, . . . [but] no list ofingredients . . . shall be required for imitationhamburger that contains not more than 10percent added protein and water, and that doesnot contain other binders or extenders. 81

Although California addresses disclosure of ingredientsrelated to hamburger meat on restaurant menus,California's truth-in-menu law is not directly on point withrequiring disclosure of LFTB. Section 111200 of California'sHealth and Safety Code, defines imitation hamburger as"chopped fresh or frozen beef, or a combination of both freshand frozen beef, with or without the addition of beef fat . ..

[that] may contain binders and extenders, with or withoutthe addition of partially defatted beef tissue."82

As previously mentioned, LFTB is derived from ground

81 CAL. HEALTH & SAFETY CODE § 111205(a) (2012).82 CAL. HEALTH AND SAFETY CODE § 111200(b) (2012).

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beef. Moreover, it does not contain any binders or extenders.As a result, LFTB would not fall under the definition ofimitation hamburger according to California law.Additionally, provided that LFTB meets the less than 10%threshold for added water and protein, the exception wouldapply. Therefore, California's truth-in-menu laws, as theycurrently stand, are not likely to force restaurants todisclose the use of LFTB on their menus.

B. Ha wai, Illinois, and South Dakota

Under Hawaii, Illinois, and South Dakota law, any"imitation food or hamburger," or "substitute food product"sold in a restaurant is prohibited, unless the menu disclosessuch information. 83 Unlike California, the truth-in-menulaws in Hawaii, Illinois, and South Dakota do not defineimitation, making it more difficult to determine whetherrestaurants would have to disclose the presence of LFTB. Ifthese states did define imitation similar to California, it islikely that their truth-in-menu laws would not requirerestaurants to disclose the presence of LFTB for the samereasons that apply in California. South Dakota's law is morerestrictive than Hawaii and Illinois because it only appliesto "imitation hamburger." 84 LFTB, however, can be added tovarious beef products such as lunch meats. Therefore, inSouth Dakota, restaurants would only be required todisclose the presence of LFTB in hamburger meat products.However, it is not clear whether restaurants would have todisclose in that case either, because as mentioned, SouthDakota does not provide an adequate definition forimitation, and LFTB is made from ground beef.

C Minnesota

According to Minnesota statute, "[alny restaurant,eating place, or other establishment serving meat . . . thathas any filler or meat . . . substitute added to it or

8 HAW. REV. STAT. § 328-6 (2012); 410 ILL. COMP. STAT. § 650/10.1(2012); S.D. CODIFIED LAWS § 34-18A-7 (2012).

84 S.D. CODIFIED LAWS § 34-18A-7 (2012).

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incorporated in it, shall clearly and prominently indicate onits menu or bill of fare the meat entrees that containfiller."85 Industry experts, including the USDA, agree thatLFTB is a meat filler that helps reduce costs. 86 As a result,restaurants in Minnesota would be required to disclose thepresence of LFTB on their menus or bill of fare. Currently,however, there do not appear to be any instances ofMinnesota restaurants enforcing disclosure of LFTB ontheir menus.

D. Rhode Island and New Jersey

Rather than address the particular ingredients in foodproducts, both Rhode Island and New Jersey truth-in-menulaws focus on the misrepresentation of identity on foodmenus. Generally speaking, under the laws of eachjurisdiction, it is unlawful for restaurants to "misrepresenton any menu . .. the identity of any food or food products."87

Unfortunately, New Jersey does not offer guidance on howto determine whether the identity of a food item ismisrepresented. In Rhode Island, however, the identity of afood item is misrepresented if "[ilt purports to be or isrepresented as a food or food product for which a definitionof identity and standard of quality has been established bycustom and usage."88 Critics of LFTB would argue thatLFTB does not meet the standard for ground beefestablished by custom because LFTB contains increasedamounts of ammonia not custom in LFTB free ground beef.Critics would also argue that LFTB changes the appearanceof ground beef to make it appear "as red meat."89

85 MINN. STAT. § 31.633 (2012).86 Sarah Kidmore, Supermarkets Join Move Away From Pink

Slime' Beef Filler, USA TODAY, (Mar. 22, 2012), http://www.usatoday.com/moneylindustries/food/story/2012- 03-22/pinkslime-supervalu-food-lion-safeway/53700356/1.

87 N.J. STAT. ANN § 56:8-2.9 (2013); see also R.I. GEN. LAWS § 23-1-40(a) (2012).

88 R.I. GEN. LAWS § 23-1-40(b)(4) (2012).89 Jim Avila, Beef Products Inc. Comeback- It's Not Pink Slime','

It's Safe, Nutritious and 'It's Beef, ABC NEWS (Mar. 27, 2012), http:/

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On the other hand, proponents of LFTB would arguethat the presence of LFTB in ground beef does not alter thequality standard of ground beef. In fact, LFTB may improvethe standard because it makes ground beef leaner. Giventhe arguments on both sides, it is unclear whether RhodeIsland's truth-in-menu law would apply to restaurants.Clearly, if Rhode Island sides with the critics of LFTB,restaurants would be required to disclose the presence ofLFTB on their menus.

Each of the seven states, with the exclusion ofMinnesota, offer vague truth-in-menu laws that mainlyaddress the use of imitation food products. Without moredefinitive laws that provide adequate definitions concerningimitation products, it is unlikely that these states wouldimpact restaurant menu labeling when it comes todisclosing the presence of LFTB in food products.

VII. CONCLUSION

On April 12, 2012, the REAL Beef Act was referred tothe House Subcommittee for review.90 Although the bill isstill under review, the USDA has already endorsed the ideaof labeling ground beef containing LFTB. 91 Essentially,USDA inspectors will certify that voluntarily labeled "LFTBfree" ground beef "will be inspected to ensure it is true to itsnew label."92 Moreover, the USDA also announced that itwill allow school districts that participate in the NationalSchool Lunch Program to decide whether or not to buy

abenews.go.com/Business/beef-products-comeback-pink-slime-safe-nutritious-beef/story?id=16014232#.UAxyNY4WB8s.

90 Requiring Easy and Accurate Labeling Beef Act, supra, note 1.91 Jim Avila, Are LFTB or Pink Slime' Safety Claims Meaningful

to Consumers? ABC NEWS (Apr. 03, 2012), http://abcnews.go.com/blogs/headlines/2012/04/are-lftb-or-pinkslime-safety-claims-meaningful-to-consumers/.

92 Id.

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ground beef that includes LFTB.93It remains unclear how restaurants should approach

menu labeling when it comes to LFTB. Even if the REALBeef Act is passed, it does not expressly state thatrestaurant menus should be labeled to include the presenceof LFTB in meat food products. Given the intent of theREAL Beef Act, however, it is plausible that the it couldapply to restaurants. Provided the REAL Beef Act willapply to restaurants, the restaurant industry as a wholewill have to be more diligent about informing customersabout the use of LFTB either through menu labeling orposted signs. For now, at least, food servicers, restaurants,and fast food establishments should closely monitor thepassage and implementation of the REAL Beef Act and howit will be applied to the restaurant industry.

9 USDA Announces Additional Choices for Beef Products in theUpcoming School Year, USDA.GOV (March 15, 2012), http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=2012/03/0094.xml ("By law, USDA has two primary responsibilities as part of itsmandate to provide safe and nutritious food to the American people.Through the Food Safety and Inspection Service, USDA ensures thatsafety of the nation's commercial supply of meat, poultry, and processedegg products. Through the Food and Nutrition Service and theAgricultural Marketing Service, USDA provides food and nutritionassistance through several domestic programs, including the NationalSchool Lunch Program.").

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Documents

Where's the Beef - An Examination of the Pink Slime ...mckinneylaw.iu.edu/ihlr/pdf/vol10p473.pdf · of a beef carcass is lean-beef trimmings.8 Given consumers' high beef consumption,