Pod Insights Planet Money The sneaky way companies get new chemicals into our food About this episode 99% of chemicals in our food right now were added without FDA approval. Many were added in secret, through a sneaky loophole built into the 1958 Food Additives Amendment.
It was supposed to require FDA approval for new additives. But food companies and chemical makers found a workaround. And the FDA formally okayed the loophole in the 90s — in the process bringing attention to a loophole to the loophole.
The FDA has essentially admitted it doesn’t have the capacity to verify the safety of new food chemicals. So they leave it up to food companies and chemical makers to declare their brand new chemicals are safe. These chemicals are used in everything from chocolate and smoked fish, to tea bags, protein drinks, popcorn, and seeds.
So, how’d the loophole get there, and what does it tell us about the priority the U. S. places on safety versus speed and innovation? And, how much can one lawyer do about it?
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Transcript 0:00 Speaker 00 This message comes from University of Buffalo, where scientists are working to protect the Great Lakes and freshwater supplies around the world from harmful contamination. Learn more about their research at buffalo.edu/NPR.
0:15 Speaker 01 This is Planet Money from NPR.
0:20 Speaker 02 If there's one way that Carol Reedy has always thought of herself, it's exuberant.
0:25 Speaker 03 Exuberant, exuberant, yes. Even on my tired days, I'm exuberant.
0:30 Speaker 02 No, some people might call her annoying, her word.
0:34 Speaker 03 Girl, they can't handle all this sometimes.
0:36 Speaker 02 But Carol doesn't mind.
0:37 Speaker 03 If it's not for you, just walk along. It's fine.
0:40 Speaker 02 Recently, though, Carol and her friends have been describing her in a different way.
0:45 Speaker 03 Basically, an orchid now.
0:47 Speaker 02 An orchid, just like really fragile, you know?
0:51 Speaker 03 Very sensitive and very delicate, like in all senses of the word.
0:55 Speaker 02 And she wasn't always this way.
0:57 Speaker 03 Before that, Sarah, I was killing it. I would go and do my research in Morocco. I was running around, doing everything, eating everything, literally.
1:07 Speaker 02 Carol is a linguistics professor at Oklahoma State University, originally from Nebraska. And when she moved to Oklahoma, that's about when things changed for her. She had just made this new friend, Lisa, and they decided to do a little trip together.
1:21 Speaker 03 We went to this little Airbnb on a pecan farm. She just wanted to hang out with me. That was our first, like, one-on-one, you know? Like, we're friends, let's do a one-on-one trip together.
1:30 Speaker 02 And it was so lovely on the pecan farm.
1:33 Speaker 03 We just literally just sat among the trees and read books. It's great. We're not going back there, though, ever again.
1:39 Speaker 02 The trip started out pretty normal. They ate a simple breakfast. Carol made them both this lentil thing and scrambled eggs. They went into town, got ice cream cones, and then went back to their Airbnb.
1:51 Speaker 03 I start getting pain first, and then she starts getting a little bit. And so what we do is we put our legs up against the wall, and we start, like, watching a movie. Or something. I can't remember what we were watching, to be honest.
2:01 Speaker 02 Carol was out of it. And she's like, Lisa, I can't actually do this.
2:08 Speaker 03 I can't, I can't do it. It's, this pain is too much. And she's like, yeah, I know. I think we should just go home. And I was like, yeah, let's just go home.
2:17 Speaker 02 Lisa wasn't too bad, but Carol was writhing in pain.
2:22 Speaker 03 Just agonizing. Yeah, it was sort of like, ah.
2:26 Speaker 02 Carol eventually goes to the ER, but they don't know what's going on. They send her home and tell her to just take it easy, avoid certain foods. So she does. Four or five days later, the pain finally starts going away and Carol starts introducing normal foods again, simple stuff, toast, lentils. And then that same feeling that she felt on the pecan farm comes back. She recognized it immediately.
2:49 Speaker 03 And I knew it was going to get worse. And I said, okay, I gotta go. This is it. It's happening again. I don't know what's going on.
2:55 Speaker 02 She goes back to the ER, but this time the pain was way, way worse.
2:59 Speaker 03 I felt like I was dying, literally felt like I was dying. They gave me very strong pain medicine. And even then I could still feel the pain.
3:09 Speaker 02 They couldn't bring her pain down at all for two days, even with fentanyl. Now, of course, everyone asked all the standard stuff, like what Carol ate. They did blood tests, CT scans. They couldn't find anything. Something in her liver was off, but they didn't know why. And Carol didn't know it yet. But at the same time, people all over the US were also showing up in emergency rooms with extreme pain like Carol and what looked like acute liver failure. But nobody knew what was causing it for days, including Carol's doctor.
3:47 Speaker 03 The doctor comes in again with no information and he's like, I don't know what, I don't know, we're not gonna, you know, we're just gonna keep giving you pain meds. And I said, listen.
3:55 Speaker 02 Carol's dad was her high school biology teacher. She kept describing her symptoms to him and he was like, I think you need to ask for this gallbladder function test.
4:06 Speaker 03 My dad's not a medical doctor. He's a farmer in Nebraska that, you know, went back to school to be a biology teacher.
4:12 Speaker 02 But she is so glad she listened to her dad and demanded this test from her doctor.
4:17 Speaker 03 Cause he came in and I, and I said, you need to sit down. I need to tell you this. I need you to do this, a test here. And he said, okay, well, we gotta keep you in the hospital another day. And I said, okay, I don't care as long as you're doing this test. And I was so relieved. I was like, thank goodness. Like, he's listening to me. This is like the third or fourth day.
4:35 Speaker 02 The problem was her gallbladder. Gallbladders like store and release bile that help you digest food, but her bile was building up, causing pain.
4:44 Speaker 03 He said, okay, well, you're gonna probably have to get your gallbladder removed. And that was that. Like, he, he, he said that. There was no option. There was no medication. There was nothing fixing it. But I didn't want, I didn't want my gall, gallbladder removed, Sarah. Like, I didn't want it. Because at that point, I still didn't know what caused the issue. So the surgery could very well have not solved the issue in my mind, right?
5:06 Speaker 02 But she scheduled her surgery. And then her friend Lisa, who she went to the pecan farm with, saw something online.
5:12 Speaker 03 So, right before the gallbladder surgery, like, the day before, my friend Lisa, because she's a master sleuth, was on Reddit, and she, um, sees, they were like, hey, anybody have to have their gallbladder removed after they ate this, like, daily harvest thing?
5:28 Speaker 02 Okay, this daily harvest thing. Daily Harvest is the company that made that lentil thing that she and Lisa both ate at the pecan farm, and that Carol ate again a few days later. It was supposed to mimic, like, ground beef or tofu, but it was lentils. It was a lentil and leek crumble. And apparently, a bunch of people who had eaten this lentil and leek thing were landing in hospitals, super sick.
5:51 Speaker 03 And Lisa's like texting me frantically, like, calling me, like, Carol, oh, my gosh, this is, this is what happens to you.
5:56 Speaker 02 Carol calls up her primary care doctor to let her know what they've discovered.
6:00 Speaker 03 And she's like, unfortunately, I don't think that changes anything. This, like, did enough damage that the only solution would have been taking out the gallbladder. Like, it's permanently damaged.
6:11 Speaker 02 Oh, it was permanently damaged from the lentil and leek?
6:14 Speaker 03 Yes.
6:15 Speaker 02 Crumble?
6:15 Speaker 03 Yes.
6:16 Speaker 02 Wow.
6:16 Speaker 03 As far as they knew, it was permanently.
6:17 Speaker 02 That's crazy, that, like, one food product can permanently damage.
6:23 Speaker 02 An organ.
6:24 Speaker 03 You're telling me.
6:25 Speaker 02 And this was not a case of like a bad batch of lentils or anything like that. There was something sprinkled into the lentils, a brand new food additive or chemical that had never before been used in food in the US. It was being marketed as a brand new superfood, super high in protein from a plant. It was called Terra Flower, made from the seed of a tare tree. It's just, it was never properly tested for safety. The US Food and Drug Administration didn't even know this new additive had made its way into the US food supply. It was only after hundreds of people got sick, liver dysfunction, liver failure, gastrointestinal injuries, that the FDA even became aware
7:09 Speaker 02 of this new secret food ingredient. Forty-two people had to go under the knife, have their gall bladders removed. And this mass poisoning, it bankrupted the company and all the other companies involved. No, just kidding. That did not happen. Everything that happened here was the system working exactly as it's been designed to work. Hello and welcome to Planet Money. I'm Sarah Gonzalez. In the US, we typically put new ingredients, new chemicals on store shelves first and then take them off if people get sick or die. It's kind of the opposite of what is known as the precautionary principle, where the government verifies everything is tested for safety before it's sold to humans to eat. Today on the show,
7:54 Speaker 02 the secret door that food and chemical makers in the US get to sneak their ingredients through, how the FDA has weakened its own food safety regulations, and probably the best example of a perverse incentive to keep chemicals secret.
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9:32 Speaker 02 So this lentil and leek crumble mass poisoning, again, was not a case of a contaminated batch of lentils or something like that. It was that a brand-new substance, never before used in the US, was added to the lentils. And that additive turned out to be not OK for some humans. Now, a food additive is a pretty broad term. It includes preservatives, emulsifiers, dough softeners, leavening agents, flavoring agents, all of that, but also food packaging ingredients, too, like the coating on the inside of a disposable coffee cup that may migrate into the food. That's an additive. In its broadest sense, it can be common things, like sugar, coffee, flour.
10:15 Speaker 02 What doesn't have additives, like whole fruits and vegetables?
10:18 Speaker 05 I think the whole food itself would be considered an additive.
10:22 Speaker 02 What do you mean? Like, a banana is an additive?
10:26 Speaker 05 If it's being added to another food, yeah.
10:28 Speaker 02 Oh, but if it's just a whole banana?
10:31 Speaker 05 But if it's just in its whole form, then I think it's just a banana.
10:33 Speaker 02 This is Melanie Bennis. She's an attorney at the Environmental Working Group, who focuses on the regulations around food and all of the additives and chemicals in our food that the FDA is likely unaware of. So additive isn't necessarily a bad word?
10:49 Speaker 05 No.
10:49 Speaker 02 Or a bad thing? Like, we have good additives.
10:51 Speaker 05 Yeah.
10:52 Speaker 02 So how do we know which ones are the bad ones?
10:55 Speaker 05 Well, yeah, we'll get there.
10:57 Speaker 02 OK. To understand how we even got to this place where a brand-new ingredient, brand-new substance, including one of the bad ones, can be added to food without rigorous safety checks, we gotta go back to the origins of the FDA. In 1906, there was growing concern about specifically meat being processed in filthy plants. And for the first time, the US put some real rules on food and drugs. Granted, in the beginning, the government was pretty easy on companies.
11:29 Speaker 05 If you are introducing a food or drug that has, like, heroin, cocaine, alcohol in it, you have to disclose those things.
11:37 Speaker 02 Why did you say heroin right now?
11:39 Speaker 05 Because there was no regulation. So people were just putting whatever in foods. This applied to food and drugs. But, I mean, Coca-Cola, famously.
11:47 Speaker 02 Oh, Coke.
11:48 Speaker 05 Contained cocaine.
11:48 Speaker 02 What was I thinking?
11:49 Speaker 05 Yeah.
11:49 Speaker 02 And listen, the FDA did not ban these crazy ingredients in 1906. They just said, disclose them. That was their big thing. Over time, the FDA's big thing became making sure that consumers were not robbed of their hard-earned cash by companies who were adulterating food, you know, like adding sawdust to flour to make the flour stretch. The government didn't start taking chemicals and additives really seriously until World War II. You have a lot of men going off to war, women going into the workforce, having less time to cook things from scratch. And the market identifies this need for shelf-stable convenience foods. This is when we see a ton of innovation in the food chemical space.
12:32 Speaker 02 And Melanie says it's not really a problem for anyone until 1950.
12:38 Speaker 02 Halloween.
12:39 Speaker 05 I feel like we have this mythology around, you know, Halloween candy being bad or poisoned. And it's very much an urban legend, except in 1950, it really happened.
12:50 Speaker 02 A couple of candy manufacturers that year decided that they were going to make these candies really, really, really orange.
12:57 Speaker 05 They used a lot of this orange dye, number one.
13:01 Speaker 02 This orange dye was already being used in cakes and cookies and meat products like hot dogs. We're just going to move right past that gross description. Uh, this orange dye was a byproduct of coal, of processing coal.
13:14 Speaker 05 These dyes turned out to be really toxic.
13:16 Speaker 02 Who would have thought?
13:17 Speaker 05 And the FDA just hadn't really looked at it.
13:20 Speaker 02 It was a mass poisoning event. A bunch of kids got severe diarrhea, developed welts and rashes, and the FDA and Congress realized they have no idea what chemicals are in our food or whether they're safe. They decide to study this orange dye on rats, and a few rats die, not like died, died, like death die. And this is not good. If rats die during a food safety study, that is like a huge red flag. In 1958, Congress passes the Food Additives Amendment, and that created one door, one path for getting a new additive on store shelves. Now, chemical manufacturers and food companies have to do studies to prove that their chemical or additive is safe before they are used in food.
14:05 Speaker 02 This is the current law of the land, okay?
14:08 Speaker 05 Uh, this is a great law. It is a good system. It is a very high safety standard.
14:13 Speaker 02 But there was a problem.
14:15 Speaker 05 The law is written in such a way that approving a food additive is comparable to writing a new regulation, which is a lot of work for the agency.
14:25 Speaker 02 It was taking the FDA a long time to approve every brand new ingredient. Was it like months, a year?
14:34 Speaker 05 Oh, years.
14:34 Speaker 02 Oh, years. Yeah, that's, that's red tape. That feels annoying. The long review process was likely hindering innovation. There was so much bureaucracy and new foods just like weren't making it on store shelves fast enough.
14:47 Speaker 05 Companies start getting frustrated by how long it's taking. So companies started thinking, is there another way?
14:57 Speaker 02 Melanie is stroking her imaginary beard when she says this, okay? Because this is when companies realize there is something written into the law that can maybe help them. Built into this great law with only one door is a loophole. A second door, if you will, for things that are generally recognized as safe. G R A S, or GRAS, as it has come to be known. The GRAS exemption says you can actually bypass the whole, long FDA review process and the safety testing verification stuff if your ingredient was commonly used in food prior to 1958 or is generally recognized as safe. The idea was that the FDA shouldn't get bogged down reviewing things like, you know,
15:41 Speaker 02 sugar, flour, a whole banana.
15:44 Speaker 05 This is exactly why the GRAS exemption was created in the first place. Because why would the FDA spend a lot of time reviewing the safety of a banana before saying you can make a banana muffin and sell it to consumers?
15:57 Speaker 02 Yeah, but Melanie says companies started really using, or maybe even exploiting, this GRAS exemption. Because the rule is just that your new ingredient or new chemical needs to be generally recognized as safe through scientific procedure, which is like tricky language. It has been interpreted pretty loosely, okay? The FDA, more and more companies, they took it to mean that your own in-house scientist at your own chemical plant can self-certify that your brand-new, never-before-used chemical or additive is safe. And then you just like notify the FDA.
16:36 Speaker 05 The FDA can look at that and say, how much of this are you using? This chemical looks kind of similar to this other chemical that we know is a carcinogen. Is your chemical also a carcinogen? Does this chemical reduce sperm counts? You don't have any of that information. And you, as a company, then can go, whoa, whoa, whoa, whoa, whoa. That's a lot of questions.
16:57 Speaker 02 Come on, FDA.
16:58 Speaker 05 I am going to ask you to stop your review, please.
17:03 Speaker 05 And I call this the take-back-see provision.
17:06 Speaker 02 You, the food maker, goes, never mind, just pretend like we didn't show you anything.
17:09 Speaker 05 Yeah, yeah, yeah, you know, please stop.
17:11 Speaker 02 Okay.
17:11 Speaker 05 Please stop. I no longer want you to review this notice. You are going to stop thinking about my chemical. And then I can go back and redo it and resubmit it. Or I can do nothing. And then just use it in food anyway.
17:27 Speaker 02 And just use it in food anyway. And just use it in food anyway. So companies can ignore the FDA's concerns and just self-certify that their additives are safe. This is the grass loophole. So it's not the greatest law?
17:42 Speaker 05 No, this is a flaw.
17:44 Speaker 02 This is the flaw, okay. 99% of chemicals in our food right now were added this way, through the grass loophole, rather than the whole, long review process. These chemicals are used in cookies, chocolate, smoked fish, sausages, tea bags, marinades, protein drinks, coffee, popcorn, seeds. Melanie's team has looked at new ingredients added to our food over 24 years. There have been around 900 new chemicals added, okay? And only 10 went to the FDA for approval.
18:17 Speaker 05 It really shows how the law has been flipped on its head. And what was meant to be a narrowly-applied loophole has completely swallowed the law, such that the loophole is now the law.
18:28 Speaker 02 The loophole swallowed the law. Um, I mean, this all sounds not the safest for consumers. But I'm 38 years old. I've been eating food my whole life. Nothing's ever happened to me that I know of. Um, is grass, like, kind of okay because people are not, like, getting sick left, right, and center?
18:52 Speaker 05 Well, I think people are getting sick left, right, and center.
18:56 Speaker 02 Okay.
18:56 Speaker 05 I mean, the good news is, is that most of the ingredients being used in our foods probably are safe. But I think someone should be checking. I think at the end of the day, uh, someone should be looking under the hood of these companies, and someone should be looking at the science.
19:11 Speaker 02 Yeah, but the FDA doesn't have the capacity. To look under everyone's hoods. The FDA essentially admitted this back in the 90s when they basically like formally okayed the loophole and in the process drew attention to a loophole to the loophole. We'll call this secret door number three or secret grass.
19:30 Speaker 05 So secret grass is when you as a company determine that your ingredient is safe. And then you just use it in food and you skip telling the FDA altogether. So you don't have to tell the FDA. It's a voluntary notification.
19:44 Speaker 02 So in door number two, you technically notify the FDA, even if you end up ignoring their concerns. For secret door number three, you don't tell the FDA anything ever. They don't have a chance to voice any concerns. You just introduce your brand new chemical and secretly, without even notifying the FDA, add it to food. A company might choose the secret grass route over the out in the open grass route to like protect their trade secrets, maybe. Remember that terra flour sprinkled onto the lentil crumbles? The one that 42 people lost their gall bladders over? That's how it entered the food supply through the secret grass door.
20:23 Speaker 05 So the makers of terra flour never went through door number one. They never filed a food additive petition. They never went through door number two. They never notified the FDA that their ingredient was grass. They just made their own determination in secret, never told anyone and started marketing it. And then it got used in food and presumably made a lot of people sick.
20:43 Speaker 02 And it can be really hard to bring a case against a food company, even when there is a mass poisoning and a bunch of people like Carol lose their gall bladders.
20:53 Speaker 03 Daily Harvest said that we cooked it wrong, blamed us, also comped like comped the cost of whatever it was, which was like, I don't know, 12 bucks or whatever. No, I think it was they gave us credit. They gave us Daily Harvest.
21:06 Speaker 02 Credit for more, for more Daily Harvest products? Daily Harvest products were like these pre-made frozen meals that you get delivered to your home, like a home-delivery meal thing. And the people who signed up for this service signed a terms of service agreement that basically said you could not sue the company in court. You'd have to arbitrate, which is much friendlier for corporations, even though, you know, like, people got super, super sick.
21:33 Speaker 03 Including babies, including babies who were breastfeeding their mom's milk. Yeah.
21:39 Speaker 02 Oh, from the breast milk?
21:40 Speaker 03 Yeah.
21:41 Speaker 02 Yeah, nursing moms who ate the lentils, their babies got sick. And, oh, yeah, you know who didn't sign those terms of services? Those nursing babies.
21:54 Speaker 03 I'm pretty sure that's how the lawsuit was able to go forward, because the babies couldn't sign the arbitrary clause.
21:59 Speaker 02 No way.
22:00 Speaker 03 Yes, way.
22:01 Speaker 02 No way.
22:02 Speaker 03 Yes, way.
22:03 Speaker 02 Oh, what a loophole. That's a good one. Like, also depressing, but like, it wasn't just the babies. There was like a 16-year-old who ate the lentil crumbles. Some people had guests over and served it to their guests, like Lisa, Carol's friend Lisa. Lisa didn't sign those terms of service. And being able to take the food company to court kind of cracked open the whole case. Gave the lawyer power that not even the FDA has. That's after the break.
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24:02 Speaker 02 All right. One attorney, one attorney who is basically beloved in the food safety world, represented 400 or so people who did sign the Lental Delivery Terms of Service agreements and like 75 others who didn't sign it. The attorney, Bill Marler.
24:19 Speaker 03 Bill, Bill. Bill is fabulous.
24:22 Speaker 02 Yeah, he's good. He also emails like a text message.
24:25 Speaker 03 Yes.
24:26 Speaker 02 Like, he'll be like, "Hey, send. Do you still want to talk? Send. I'm free at 3:00. Send."
24:31 Speaker 03 Yeah, I love it.
24:33 Speaker 04 Well, that's, you know, because, you know, I can't help, I can't help what I, you know, we can, there's a lot to do.
24:38 Speaker 02 That's Bill. And Bill never stops working, or at least it certainly seems that way. He made his name working on a big Jack-in-the-Box E. coli case in the 90s. The New Yorker once wrote about Bill and this thing he was doing around contaminated chicken.
24:53 Speaker 04 And it was called "A Bug in the System." And I guess I was the bug. Anyway.
24:59 Speaker 02 Oh, you're the bug. Okay. Bill's the bug in the system. The way I put it is more that Bill basically does what many of us probably think the FDA does. When Bill started seeing people getting sick from the lentil crumbles, like Carol, he found that other- People in another place, Canada, were also getting their gall bladders removed after eating this smoothie from another food company. So Bill sent both of those products to a lab to get tested. He's looking for anything these two products have in common. And they find one. There's one thing and it's terra flour.
25:34 Speaker 04 Terra flour.
25:36 Speaker 02 But you're doing this? Like it's like you, the lawyer finds the link, not the FDA?
25:42 Speaker 04 That happens. Sometimes I know things before they know things. But I have an epidemiologist on, I have two epidemiologists on staff. The FDA has more power upfront to get companies to provide them information so they can trace back a problem. We have to have a lawsuit. And then, once we have a lawsuit, we have subpoena power. We can put people under oath. We can drag them into a courtroom and make them tell the truth. That's a little bit more power than frankly, what the FDA can do.
26:19 Speaker 02 Yeah, taking the food companies to court meant Bill could peer behind the secret door, deposition the companies under oath, require them to produce documents under penalty of perjury, ask them questions about where this terra flour came from.
26:34 Speaker 04 So I'm now going, okay, where'd you get the terra flour? And they're like, oh, well, we got it from, and then, then I sued them. And then I brought them into the lawsuit. And then I went to them and said, where did you get the terra flour? And eventually it went back to one company in Peru called Molinos. And I sued them too.
26:55 Speaker 02 This company in Peru has for a long time made this thing called terra gum, which is used in like ice cream and other things. And they started manufacturing this thing called terra flour. Totally different product. And they were like pitching it around.
27:11 Speaker 04 So they basically just sent out like cold call email. All over the world to importers in the US, Europe, everywhere.
27:20 Speaker 02 Like, hey, we found a
27:22 Speaker 04 Hey, we got this, got this cool stuff. The flour, it's high in protein and
27:27 Speaker 02 From a tree, right? It's from a territory.
27:28 Speaker 04 From a tree, all natural.
27:31 Speaker 02 And this food importer in the US, Smirks bit.
27:35 Speaker 04 Smirks turned around and pitched it to Daily Harvest, who interestingly was right in the middle of, you know, making these crumbles and really looking for a protein additive. And everybody in the chain of distribution just assumed that it would all work out and that it would all be safe.
27:55 Speaker 02 Bill says there was this one safety study done in Peru on rats.
27:59 Speaker 04 To see if the terra flour killed rats and it didn't kill rats, but it didn't go into a lot of depth into whether or not it had caused liver issues or other issues. And so, you know, it looked good on paper.
28:14 Speaker 02 But he says no one, not Daily Harvest, not Smirks, not Molinos, asked the big questions.
28:21 Speaker 04 Has this stuff ever been used in food before? And if so, when? Where are the studies? Where is anything? Is it what's called generally regarded as safe? And the answer to those questions were all no, no, no, no, no.
28:35 Speaker 02 But they had the rat study, Molinos had the rat study. Is that not? Is that not a scientific? No, it's not. Why?
28:40 Speaker 04 No, no, it's not because it's like one tiny study from one university, you know, funded by the company that wanted to sell the product. That's not the way this is supposed to work.
28:53 Speaker 02 Okay, except though, Bill, from everything I know about grass, that is exactly how it works.
29:01 Speaker 04 Yes, that's it.
29:02 Speaker 02 You, the company can say, hi, I self-certify that this is generally regarded as safe. And then you're good to go.
29:08 Speaker 04 That is, that is the way it is done. The assumption is, is that people making that assertion, they're going to have something that's actually real backing it up.
29:23 Speaker 02 Yeah, Bill says companies should be doing like actual comprehensive safety studies, right? But this is the problem with the grass and secret grass loopholes, right? When you have an honor system, maybe the incentives aren't there to do real rigorous research. If no one has to submit their safety studies to anyone, then, I mean, do you really even have to do them?
29:46 Speaker 04 Does this happen? Probably all the time. That's what the problem with grass has always been.
29:52 Speaker 02 In the case of terra flour, it wasn't necessarily the company who made the terra flour in Peru that had to prove its safety. It was the US food importer, Smirks. Bill says they blew it. They didn't do what they needed to do to make sure this new secret ingredient was safe. And there was not a lot of accountability here. What, what happened to Daily Harvest? Are they still around selling food?
30:17 Speaker 04 They, they were ultimately purchased by Chobani, the yogurt people. So.
30:23 Speaker 02 Okay. And then what about Smirks?
30:26 Speaker 04 Smirks is still around, but.
30:29 Speaker 02 Did they get fined by the FDA? Did they have a consequence?
30:32 Speaker 04 No, the only consequence was me, you know? I sued them and got money from them, in their insurance company. But ultimately, there was no public fine, there was nothing.
30:46 Speaker 02 So the FDA doesn't, like, surely they say something like, from here on out, do some better tests? Nothing? Why are you shaking your head?
30:54 Speaker 04 Nothing, nothing.
30:55 Speaker 02 Well, the FDA did ban terra flour, which was a big deal, even though they never outright announced that the terra flour itself caused the gallbladder and liver issues. Daily Harvest has said that the problem was the terra flour, and their insurance ended up paying up. Same with Smirks and Melino's, according to Bill. We did reach out to all of the companies. Smirks, Molino's, Tribani, which owns Daily Harvest. No one provided a comment. Now, some people think that the US needs a more aggressive food regulator. Like, the FDA should require that companies prove their new substances are safe before they make it onto store shelves.
31:36 Speaker 02 And sure, that might slow down how quickly we get new food products, but that's how a lot of Europe does it. And New Zealand, it's a pre-market review system, which is known as the precautionary principle. Some say the US should, at the very least, tell consumers what the food might do to you, and then we can decide for ourselves if we're willing to risk getting cancer or losing a gallbladder over it. But Bill, Bill thinks the free market can kind of handle this problem, too. He says, you know, food companies don't want to poison people. That's not good for business, although I guess it's not terrible for business, since all the terra flower companies are still around.
32:17 Speaker 02 But Bill says generally, companies try to have safe food products and not make people sick.
32:23 Speaker 04 You know, I honestly think that the free market makes sense, that, you know, people taking risks and, you know, and rewards and making money and doing that, it all kind of works itself out. But I think where we fail is, is that we don't really hold people who do it incorrectly accountable. You know, they're not fined, they're not embarrassed.
32:55 Speaker 02 Bill thinks if there was a fine, that that would force companies to be more cautious. Like, New Zealand, for example, if you got sick from the food in New Zealand, Bill says the government would pay you, and then the government would fine the company. In New Zealand, Bill says, his job doesn't exist. The government would take care of all of that. In the US, the FDA would do an investigation, but then private attorneys like Bill come in to represent the people who got hurt.
33:22 Speaker 04 And I'm not trying to downgrade what I do, but I'm one... Small law firm who's been doing this for 33 years against a lot of giant companies. But it's just a nick in their armor. You know, it's really, it's just a nick in their armor.
33:40 Speaker 02 Years after everyone got sick, Bill says he got a total of $32 million in settlements for the 450 victims who got poisoned. The 42 who lost their gall bladders will get more than the other people. And this Tara Flower case, it is one of the clearest examples of the grass loophole failing consumers. There's also a Four Loko example, like the drink Four Loko, where a bunch of young people started acting erratic after drinking it, and some even died. These examples are tragic, but Bill Marler and Melanie Benish say that in some ways, these are the straightforward cases. People consume a thing and get sick immediately. That's easy to track down and pull off the market.
34:25 Speaker 02 For Melanie, it's the additives that don't cause an immediate health effect that are the most concerning.
34:31 Speaker 05 In some ways, I worry more about the chemicals that we're using where we don't understand the risk yet, and those risks aren't going to show up for a long time.
34:42 Speaker 02 The current system has let in additives that took the FDA years to ban. Six flavoring ingredients were allowed that turned out to be carcinogenic, like ethyl acrylate, a synthetic flavoring used to mimic the aroma of pineapples and kiwis. Partially hydrogenated oils were allowed for decades until the FDA revoked their grass status and said that removing them could prevent thousands of heart attacks and deaths each year.
35:11 Speaker 05 If you have these long-term effects that only come from eating an additive over time, maybe it's being used in multiple different foods, and then 30 years from now, your risk of cancer is increased, or you end up having reproductive problems, tying those kinds of chronic health effects back to something that you've been eating and maybe eating inconsistently, that is a much more difficult chain to recreate.
35:43 Speaker 02 Robert F. Kennedy Jr., the head of Health and Human Services, which oversees the FDA, has actually proposed closing the grass loophole, though maybe not for the exact same reasons as Melanie. The White House is reviewing the idea. And there is also a draft of a bill in Congress that would actually require mandatory grass notices. But people like Melanie argue it would actually broaden what is considered generally recognized as safe and possibly allow more chemicals to slip in. Carol Reedy, who consumed terraflower, thinks the current grass system is already too broad. She lost an organ because of it.
36:22 Speaker 03 A lot of people say that you don't need a gallbladder, but not having a gallbladder now? I would argue the contrary.
36:31 Speaker 02 You miss your gallbladder.
36:33 Speaker 03 Girl, you have no idea. Everything is just messy and harder for me.
36:40 Speaker 02 Kind of famously, some people who lose their gallbladders can't eat fatty foods like meat, or cheese, or avocado. Carol sees a functional health coach and takes a ton of doctor-recommended supplements to help her digest. And she says her diet is really restricted now, and she can't even have any fun snacks.
36:58 Speaker 03 Not much, not much. It's like rice cakes, you know? Like, like nothing-
37:03 Speaker 02 Oh, gosh, that's the worst snack!
37:05 Speaker 03 I know.
37:06 Speaker 02 And she actually worries a lot about any long-term side effects that might pop up from consuming a chemical that poisoned her.
37:15 Speaker 03 Especially because I'm so delicate right now, like, still so delicate.
37:19 Speaker 02 Carol did get $100,000 for her gallbladder from that settlement bill won. And she's not sure it will cover future medical bills, but the money just came in a couple of months ago, and she is celebrating a little, going on a trip to Mexico City.
37:35 Speaker 03 Uh, hold on a second, I gotta say one more thing. I also bought myself a purse. This is secondhand.
37:40 Speaker 02 It's in interesting shape, this purse, kind of like a pear or a gallbladder?
37:47 Speaker 03 Kind of looks like it, that's why. It's green.
37:51 Speaker 02 She calls it her gallbladder purse.
37:56 Speaker 02 This episode was produced by Sam Yellowhorse Kessler. It was edited by Jess Jing, fact-checked by Sierra Juarez, and engineered by Robert Rodriguez with help from Kwesi Lee. Alex Goldmark is our executive producer. Special thanks to Sarah Schott, who also got poisoned by terra flower and spoke to us for a long time, and Jensen Jost at the Center for Science in the Public Interest, and Jane Black. I'm Sarah Wenzales. This is NPR. Thank you for listening.
38:28 Speaker 00 Stay tuned for the following announcements and messages from our sponsors. This message comes from University of Buffalo, where scientists are working to protect the Great Lakes and freshwater supplies around the world from harmful contamination. Learn more about their research at buffalo.edu/NPR. This week on Up First, we're in the final days before the midterm elections. And this is one of the wonderful things about politics, one of the wonderful things about humanity. We have all this data, we have all this information, and nobody really knows what's gonna happen. We're gonna follow it day by day, through Election Day and beyond. And you can listen to Up First every morning on the NPR app or wherever you get your podcasts.
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