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The Pot, the Kettle and US Food Exports

Of Toxic Almonds and Bad Beef

by CHRISTOPHER BRAUCHLI

It was beef and almonds. The whole time we were fussing about the Chinese government’s failure to impose strict standards on production of toys and Mattel was recalling toys because of lead paint and other manufacturing deficiencies, (some of which Mattel now acknowledges were design flaws) the Commission of the European Communities was quietly taking action against the United States because of almonds, and the South Koreans were banning some U.S. cows.

Although the almonds were, like some of the parts of the recalled toys, small enough to be swallowed by infants with the result that they might choke, they were not recalled because of their size. Nor were they coated with lead paint like the toys produced in China. Indeed, the almonds have not been recalled. They are still being sold in grocery stores all over the United States and will continue to be sold in those places for the foreseeable future. The trouble with almonds, as far as the Commission is concerned is the aflatoxin levels in their production and processing and the fact that there are inadequate controls in the United States to insure that the almonds that reach Europe meet Community standards. It was a bit of an embarrassment but then, much of what we do is. Not properly processing almonds is a much smaller problem than many of the others confronting the administration.

A regulation was promulgated on January 28,2002by the European Parliament and the Council to deal with "the general principles and requirements of food law". It created the European Food Safety Authority. In 2006 certain conditions were established "governing certain foodstuffs imported from certain third countries due to contamination risks of these products by aflatoxins." In establishing the conditions the Scientific Committee for Food noted that "aflatoxin B-1 is a potent genotoxic carcinogen and . . . contributes to the risk of liver cancer." Accordingly a regulation was issued setting maximum levels for aflatoxins in foodstuffs. In 2005 and 2006 the Committee observed that those maximum levels were regularly exceeded in almonds and derived products from the United States and constitute "a threat to public health in the Community." Accordingly, said the Committee, special rules were needed to deal with almonds from the United States. And in some respects the procedures were similar to the United States procedures to check lead paint level on toys made in China.

The Commission Food and Veterinary Office sent representatives to the United States to "assess the control systems in place to prevent aflatoxin contamination levels in almonds intended for export to the Community . . .. That mission revealed the absence of any compulsory legal requirements to control aflatoxin levels in almond production and processing and the inadequacy of the current control system to offer guarantees concerning the compliance of exported products with Community standards." The investigation also disclosed the "inadequacy of the laboratories visited to provide any guarantees for exports and demonstrated failures to comply with almost all . . . ‘General requirements for the competence of testing and calibration laboratories’."

When the administration learned of this somewhat dismal report card the appropriate agency said it would take action to address the shortcomings which, is more or less, what the Chinese said about lead paint. The Commission, however, found the proposed steps wanting saying they failed to "provide guarantees for compliance of future shipments of almonds with Community legislation on aflatoxins. It is therefore appropriate to subject almonds and derived products originating in or consigned from the United States of America to strict conditions in order to provide a high level of protection to public health."

On August 1, 2007, a new resolution was adopted that says that all almonds and derived products imported into the Community from the United states "should be subjected to sampling and analysis for aflatoxin levels by the competent authority of the importing Member State, prior to release onto the market insofar as they are not covered by the Voluntary Aflatoxin Sampling Plan set up by the Almond Board of California in May, 2006. (That suggests that with almonds, as with auto emissions, California is ahead of the rest of the country although the language of the Resolution itself seems to omit this exception.) As if the attack on our almonds weren’t bad enough, in September South Korea took out after our cows.

In December 2003 South Korea banned the import of beef from the United States because of its fear of mad cow disease. Imports resumed in April but part of the agreement entered into upon resumption of importing beef was that all beef imported from the United States would be boneless and come from cattle under 30 months old. During July and August bones were discovered in shipments received by South Korea and South Korea has revoked import approval for the two facilities that shipped the offending cows. The question with which my readers are left is whose kettle is really black.

CHRISTOPHER BRAUCHLI is a laywer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu