The sneaky way companies get new chemicals into our food

0:01This is Planet Money from NPR. If there's one way that Carol Reedy has always thought of herself, it's exuberant. Exuberant. Exuberant. Yes. Even on my tired days, I'm exuberant. Now, some people might call her annoying, her word. Girl, they can't handle all this sometimes. But Carol doesn't mind. If it's not for you, just walk along. It's fine. Recently, though, Carol and her friends have been describing her in a different way. Basically an orchid now. An orchid. Just like really fragile, you know? Very sensitive and very delicate. Like in all senses of the word. And she wasn't always this way.

0:43Before that, Sarah, I was killing it. I would go and do my research in Morocco. I was running around doing everything, eating everything, literally. 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. We went to this little Airbnb and 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. And it was so lovely on the pecan farm.

1:19We just literally just sat among the trees and read books. It's great. We're not going back there, though, ever again. 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. 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. Carol was out of it. And she's like, Lisa, I can't actually do this.

1:54I can't. I can't do it. 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. Lisa wasn't too bad, but Carol was writhing in pain. Just agonizing. Yeah, it was sort of like, ah. 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.

2:33She recognized it immediately. And I knew it was going to get worse. And I said, OK, I got to go. This is it. It's happening again. I don't know what's going on. She was back to the ER, but this time the pain was way, way worse. 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. 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.

3:13And Carol didn't know it yet. But at the same time, people all over the U.S. 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. The doctor comes in again with no information. And he's like, I don't know what, I don't know. We're not going to, you know, we're just going to keep giving you pain meds. And I said, listen. 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.

3:52My dad's not a medical doctor. He's a farmer in Nebraska that, you know, went back to school to be a biology teacher. But she is so glad she listened to her dad and demanded this test from her doctor. Because he came in 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 got to 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. The problem was her gallbladder.

4:24Gallbladders like store and release bile that help you digest food. But her bile was building up, causing pain. He said, okay, well, you're going to probably have to get your gallbladder removed. And that was that. Like he said that there was no option. There was no medication. There was nothing fixing it. But I didn't want my 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? But she scheduled for surgery. And then her friend Lisa, who she went to the pecan farm with, saw something online.

4:58So 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 moved after they ate this like daily harvest thing 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 And this lentil and leek thing were landing in hospitals.

5:36Super sick. And Lisa's like texting me frantically, like calling me like, Carol, oh my gosh, this is what happens to you. Carol calls up her primary care doctor to let her know what they've discovered. 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. Oh, it was permanently damaged from the lentil and leek crumble. Yes. Wow. As far as they knew, it was. That's crazy that like one food product can permanently damage an organ. You're telling me. And this was not a case of like a bad batch of lentils or anything like that.

6:18There was something sprinkled into the lentils, a brand new food additive or chemical that had never before been used in food in the U.S. 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 U.S. Food and Drug Administration didn't even know this new additive had made its way into the U.S. food supply. It was only after hundreds of people got sick, liver dysfunction, liver failure, gastrointestinal injuries, that the FDA even became aware of this new secret food ingredient.

6:5742 people had to go under the knife, have their gallbladders 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 U.S., 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.

7:39Today on the show, the secret door that food and chemical makers in the U.S. 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.

8:05This message comes from Cook Unity, the first chef-led meal delivery service where every meal is handcrafted in local micro-kitchens, not mass-produced in large facilities. With hundreds of dishes to choose from and over 10 different dietary preferences like high-protein, low-sodium, GLP-1, and more, Taste what happens when real, award-winning chefs make fresh, small-batched meals just for you. Go to cookunity.com slash money or enter code money before checkout to get 50 % off your first order. So this lentil and leek crumble mass poisoning, again, was not a case of a contaminated batch of lentils or something like that.

8:46It was that a brand new substance, never before used in the U.S., was added to the lentils. And that additive turned out to be not okay for some humans. Now, a food additive is a pretty broad term. It includes like 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. What doesn't have additives, like whole fruits and vegetables? I think the whole food itself would be considered an additive.

9:28What do you mean? Like a banana is an additive? If it's being added to another food, yeah. Oh, but if it's just a whole banana. But if it's just in its whole form, then I think it's just a banana. This is Melanie Benish. 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 or a bad thing. Like we have good additives. Yeah. So how do we know which ones are the bad ones? Well, yeah, we'll get there. Okay. 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 got to go back to the origins of the FDA in 1906.

10:20There was growing concern about specifically meat being processed in filthy plants, and for the first time, the U.S. put some real rules on food and drugs. Granted, in the beginning, the government was pretty easy on companies. If you are introducing a food or drug that has, like, heroin, cocaine, alcohol in it, you have to disclose those things. Why did you say heroin right now? 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 contained cocaine. Oh, Coke. What was I thinking? Yeah. And listen, the FDA did not ban these crazy ingredients in 1906.

11:00They 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.

11:38And Melanie says it's not really a problem for anyone until 1950, Halloween. 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. A couple of candy manufacturers that year decided that they were going to make these candies really, really, really orange. They used a lot of this orange dye, number one. 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. This orange dye was a byproduct of coal, of processing coal.

12:20These dyes turned out to be really toxic. Who would have thought? And the FDA just hadn't really looked at it. It was a mass poisoning event. A bunch of kids got severe diarrhea, developed welts and rashes. and the FDA and Congress realize 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.

13:03Now, chemical manufacturers and food companies have to do studies to prove that their chemical or additive is safe before they are used in food. This is the current law of the land, okay? This is a great law. It is a good system. It is a very high safety standard. But there was a problem. 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. It was taking the FDA a long time to approve every brand new ingredient. Was it like months? A year? Oh, years. Oh, years. Yeah, that's red tape. That feels annoying.

13:44The long review process was likely hindering innovation. There was so much bureaucracy and new foods just weren't making it on store shelves fast enough. Companies start getting frustrated by how long it's taking. So companies started thinking, is there another way? Melanie is stroking her imaginary beard when she says this, OK, 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.

14:28The 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, sugar, flour, a whole banana. This is exactly why the grass 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? Yeah, but Melanie says companies started really using or maybe even exploiting this grass 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.

15:21It has been interpreted pretty loosely, okay? The FDA, more and more companies, they took it to mean that your own in-house scientists 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. 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.

16:02That's a lot of questions. Come on, FDA. I am going to ask you to stop your review, please. And I call this the take-backsies provision. You, the food maker, goes, never mind. Just pretend like we didn't show you anything, FDA. Please stop. We didn't see anything. 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. 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.

16:44This is the grass loophole. So it's not the greatest law. No, this is a flaw in the law. 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. 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.

17:34The 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. Is grass like kind of okay because people are not like getting sick left, right and center? Well, I think people are getting sick left, right and center. Okay. 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, someone should be looking under the hood of these companies and someone should be looking at the science.

18:17Yeah, 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. So secret grass is when you as a company determine that your ingredient and 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. So in door number two, you technically notify the FDA, even if you end up ignoring their concerns.

18:56For 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 gallbladders over? That's how it entered the food supply, through the secret grass door. So the bakers of terra flour never went through door number one. They never filed a food additive petition.

19:35They 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. 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 gallbladders. 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.

20:11They gave us Daily Harvest. 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. Including babies. Including babies who were breastfeeding their mom's milk. Yeah. Oh, from the breast milk? Yeah. Yeah. Nursing moms who ate the lentils, their babies got sick.

20:52And oh, yeah. You know who didn't sign those terms of services? Those nursing babies. I'm pretty sure that's how the lawsuit was able to go forward because the babies couldn't sign the arbitrary clause. No way. Yes, way. No way. Yes, way. 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.

21:32Gave the lawyer power that not even the FDA has. That's after the break.

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23:05Iran, Lebanon, Israel, Gaza. With conflict unfolding in so many places, firsthand reporting has never mattered more. NPR Plus supporters power that work. They make it possible for our journalists to go where news is happening. And supporters get perks for NPR podcasts, things like bonus episodes, archive access, and more. You can sign up at plus.npr.org. All right. One attorney, one attorney who is basically beloved in the food safety world, represented 400 or so people who did sign the Lentil Delivery Terms of Service Agreements, and like 75 others who didn't sign it. The attorney, Bill Marler.

23:47Bill. Bill. Bill is fabulous. Yeah, he's good. He also emails like a text message. Yes. Like he'll be like, hey, send. Do you still want to talk? Send. I'm free at three. Send. Yeah, I love it. Well, that's, you know, because, you know, I can't help. I can't help. But, you know, there's a lot to do. 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. And it was called a bug in the system. And I guess I was the bug.

24:26Anyway. Oh, you're the bug. Bill's the bug in the system. The way I'd 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 gallbladders 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 terraflower. One thing. Terraflower. But you're doing this?

25:05Like, it's like you, the lawyer, finds the link, not the FDA? Well, that happens. Sometimes I know things before they know things. But I have an epidemiologist on staff. I have two epidemiologists on staff. The FDA has more power up front 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. 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 flower came from.

26:01So I'm now going, OK, where'd you get the terra flower? And they were like, oh, well, we got it from—and 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. 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. So they basically just sent out like cold call emails all over the world to importers.