The sneaky way companies get new chemicals into our food

Summary

Planet Money (NPR)

Episode: "The sneaky way companies get new chemicals into our food"

Date: May 29, 2026

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Overview

This episode of Planet Money, hosted by Sarah Gonzalez, investigates how new chemicals find their way into the U.S. food supply with minimal oversight, focusing on the story of the "lentil and leek crumble" mass poisoning. The discussion reveals systemic loopholes in FDA regulations—especially the "GRAS" (Generally Recognized As Safe) process—that allow companies to introduce novel food additives without rigorous safety testing or even FDA notification. Through interviews with affected individuals, food safety attorneys, and regulatory experts, the episode traces both the personal impact and structural problems in America's food safety system.

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Key Discussion Points & Insights

I. The Personal Cost: Carol Reedy’s Story (00:01–06:26)

• Introduction to Carol Reedy
  • Carol, a linguistics professor, describes herself as "exuberant" but more recently, “an orchid”—fragile and sensitive after a drastic health crisis. (00:11–00:33)
• First Signs of Trouble
  • On a trip with her friend Lisa, they both eat Daily Harvest’s lentil and leek crumble and suffer acute pain. Carol eventually lands in the ER with agonizing symptoms. (01:25–02:35)
• Medical Mystery and Frustration
  • Doctors struggle to diagnose Carol’s repeated excruciating pain and organ dysfunction after she reintroduces the same foods, including the lentil dish. (02:35–03:41)
  • Thanks to her father’s advice, she pushes for a gallbladder function test, revealing permanent damage. Doctors recommend surgery. (03:52–04:52)
• Finding the Culprit
  • Lisa discovers a Reddit thread linking similar cases to Daily Harvest’s product, triggering the realization that a specific new additive may be at fault. (04:58–05:57)
• Permanent Consequences
  • The lentil crumble contained "Terraflower," a novel additive made from the seed of a tarot tree, which was never tested for safety. At least 42 people lost their gallbladders as a result. (06:01–06:10)

"That's crazy. That, like, one food product can permanently damage an organ."
— Sarah Gonzalez (06:04)

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II. How New Chemicals Enter the Food Supply (08:38–17:34)

What Is a Food Additive?

• Additives include not just flavorings or preservatives but also things like food packaging. (08:38–09:24)
• Regulatory language is broad—even a banana can be considered an additive if used as an ingredient. (09:28–09:40)

Origins of Food Regulation in the US

• The FDA started with minimal rules (just disclose if your food had extreme ingredients, like heroin!); regulation increased post-WWII amid the rise of processed foods. (10:03–11:45)
• A 1950 Halloween mass poisoning by toxic orange dye underscored how little the FDA actually knew about food chemicals. (11:45–12:22)

"These dyes turned out to be really toxic."
— Melanie Benesh (12:20)

The 1958 Food Additives Amendment

• Aimed to establish rigorous pre-approval for food chemicals: companies must prove new ingredients are safe before use. (13:14–13:54)
• However, the law made every approval a “regulation,” slowing the process to a crawl. (13:31–13:40)

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III. The Loophole: Generally Recognized As Safe (GRAS) (14:04–17:34)

The Emergence of GRAS

• If a substance was widely used or “generally recognized as safe,” it could bypass full FDA review.
• Originally for familiar foods, companies quickly stretched GRAS to cover novel chemicals. (14:50–15:42)

Self-Certification and ‘Take-Backsies’

• Companies can self-certify that a new additive is safe with in-house science and simply notify the FDA (or even withdraw their notification if the FDA asks too many questions). (16:03–16:16)

"I call this the take backsies provision."
— Melanie Benesh (16:04)

• Most new food chemicals—99%!—enter through this loophole rather than formal FDA approval. Over 24 years, ~8,900 new chemicals entered the food supply, but only 10 went through the full approval process. (16:52–17:23)

"The loophole swallowed the law."
— Melanie Benesh (17:23)

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IV. No Review At All: The ‘Secret GRAS’ Door (18:17–19:49)

Secret Door #3

• Companies can simply self-declare a chemical is safe and not notify the FDA at all—this is “secret GRAS.” (18:37–18:50)
• The logic: protect trade secrets, increase speed to market, or avoid even voluntary scrutiny.
• Terraflower entered the food chain this way, with no FDA knowledge until reports of harm surfaced. (19:29–19:49)

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V. Legal Recourse and Systemic Problems (19:49–29:57)

Obstacles to Accountability

• Victims often forced into arbitration rather than court, favoring companies and limiting public discovery.
  • Exception: infants and other people who didn't sign service agreements could sue, cracking the case open. (20:45–21:09)
• Enter Bill Marler, food safety lawyer, who sues both the U.S. companies and their Peruvian supplier. (23:13–25:45)

"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... He sent both of those products to a lab to get tested... There's one thing, and it's Terraflower."
— Sarah Gonzalez (24:54)

Tracing the Additive to Its Source

• Overseas supplier (Molinos, Peru) pitched Terraflower as a protein-rich ingredient.
• Only “safety” study: a minimal rat test, done by a university funded by the producer—not real science, per Marler. (27:11–27:52)

"That is the way it is done."
— Bill Marler, on self-certifying safety under GRAS (28:20)

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VI. Lack of Accountability and Regulatory Weakness (29:28–32:33)

No Real Consequences

• Daily Harvest was acquired by Chobani; suppliers like Smirks and Molinos are still in business.
• No public fines or official consequences—the only penalty was civil lawsuits. (29:41–30:05)
• The FDA did ban Terraflower but handled the crisis reactively, not proactively.

"The only consequence was me."
— Bill Marler (29:43)

Systemic Comparison with Other Countries

• Europe and New Zealand embrace the “precautionary principle” (no market entry until proven safe).
• In New Zealand, the government compensates victims and fines producers—a system that “puts Bill Marler out of work.” (31:34–32:33)

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VII. The Broader Risks & Unseen Dangers (32:51–34:54)

• Tragedy is clear when health effects are immediate (like Terraflower or Four Loko), but far more concerning are subtle, long-term exposures that may increase cancer or reproductive risks decades later. (33:42–34:54)
• Examples: it took years to ban six carcinogenic flavorings and “partially hydrogenated oils.”

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VIII. Policy Changes on the Horizon? (34:54–35:40)

• HHS Secretary Robert F. Kennedy Jr. proposes closing the GRAS loophole; Congress is considering mandatory GRAS notices.
• Critics worry that proposals may inadvertently broaden, not tighten, the definition of what is “generally recognized as safe.”

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IX. Final Thoughts and Human Cost (35:33–36:46)

• Carol Reedy points out life-altering post-surgical dietary restrictions and ongoing anxiety over long-term effects.

"A lot of people say that you don't need a gallbladder, but not having a gallbladder now, I would argue the contrary."
— Carol Reedy (35:33)

"Everything is just messy and harder for me."
— Carol Reedy (35:51)

• She receives $100,000 in settlement but is unsure it will cover future medical costs, and marks the struggle and loss by buying a “gallbladder purse." (36:46–36:58)

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Notable Quotes

• On the powerlessness of the FDA:

  "And just use it in food anyway. And just use it in food anyway."
  — Sarah Gonzalez (16:33)

• On the system’s design:

  "This mass poisoning... was the system working exactly as it's been designed to work."
  — Sarah Gonzalez (06:12)

• On legal accountability:

  "It's just a nick in their armor."
  — Bill Marler (32:51)

• On unseen risks:

  "In some ways, I worry more about the chemicals that we're using where we don't understand the risk yet."
  — Melanie Benesh (33:42)

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Important Timestamps

• 00:01 – 06:26: Carol Reedy’s health saga and discovery of the cause
• 08:38 – 12:22: Definitions, history, and gaps in food additive regulation
• 14:04 – 17:34: Introduction to the GRAS system and loophole
• 18:37 – 19:49: The “Secret GRAS” door
• 23:13 – 28:20: Bill Marler’s legal investigation and food chain tracing
• 29:41 – 32:51: No fines, no public consequences, and comparison with international food safety systems
• 33:42 – 34:54: Risks from long-term chemical exposure in food
• 35:33 – 36:58: Carol’s ongoing life changes and symbolic gallbladder purse

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Conclusion

Planet Money’s investigation lays bare how the current U.S. system for regulating new food chemicals puts the burden of proof on consumers and the courts—after harm has occurred. The GRAS loophole—and especially its secret, non-notification variant—means novel additives can reach millions without independent safety checks. The episode closes emphasizing the profound, lasting effects on individual lives, and the urgent call for true public health accountability.

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For listeners seeking to better understand food safety regulation, systemic incentives, and the legal landscape in the U.S., this episode is essential—and unforgettable.

Transcript

[Sarah Gonzalez]

This is Planet Money from npr. If there's one way that Carol Reedy has always thought of herself, it's exuberant.

[Carol Reedy]

Exuberant? Exuberant, yes. Even on my tired days, I'm exuberant.

[Sarah Gonzalez]

Now, some people might call her annoying, her word girl.

[Carol Reedy]

They can't handle all this sometimes.

[Sarah Gonzalez]

But Carol doesn't mind.

[Carol Reedy]

If it's not for you, just walk along. It's fine.

[Sarah Gonzalez]

Recently, though, Carol and her friends have been describing her in a different way.

[Carol Reedy]

Basically, an orchid.

[Sarah Gonzalez]

Now, an orchid just like really fragile,

[Carol Reedy]

you know, very sensitive and very delicate, like, in all senses of the word.

[Sarah Gonzalez]

And she wasn't always this way.

[Carol Reedy]

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.

[Sarah Gonzalez]

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.

[Carol Reedy]

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.

[Sarah Gonzalez]

And it was so lovely. On the pecan farm.

[Carol Reedy]

We just literally just sat among the trees and read books.

[Melanie Benesh]

It's great.

[Carol Reedy]

We're not going back there, though, ever again.

[Sarah Gonzalez]

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.

[Carol Reedy]

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.

[Sarah Gonzalez]

Carol was out of it. And she's like, lisa, I can't actually do this.

[Carol Reedy]

I 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.

[Sarah Gonzalez]

Lisa wasn't too bad, but Carol was writhing in pain, just agonizing.

[Carol Reedy]

Yeah, it was sort of like Carol

[Sarah Gonzalez]

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.

[Carol Reedy]

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.

[Sarah Gonzalez]

She was back to the er, but this time, the pain was way, way worse.

[Carol Reedy]

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.

[Sarah Gonzalez]

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.

[Carol Reedy]

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.

[Sarah Gonzalez]

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.

[Carol Reedy]

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.

[Sarah Gonzalez]

But she is so glad she listened to her dad and demanded this test

[Carol Reedy]

from her doctor, because 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 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.

[Sarah Gonzalez]

The problem was her gallbladder. Gallbladders, like, store and release bile that help you digest food. But her bile was building up, causing pain.

[Carol Reedy]

He said, okay, well, you're gonna probably have to get your gallbladder removed. And that was that. Like, he.

[Melanie Benesh]

He.

[Carol Reedy]

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 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.

[Sarah Gonzalez]

But she scheduled her surgery, and then her friend Lisa, who she went to the pecan farm with, saw something online.

[Carol Reedy]

So right before the gallbladder surgery, like, the day before, my friend Lisa, because she's a master sleuth, was on Reddit. And she sees they were like, hey, anybody have to have their gallbladder removed after they ate this, like, Daily Harvest thing?

[Sarah Gonzalez]

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.

[Carol Reedy]

And Lisa's, like, texting me frantically, like, calling me like, carol, oh, my gosh, this is. This is what happens to you.

[Sarah Gonzalez]

Carol calls up her primary care doctor to let her know what they've discovered,

[Carol Reedy]

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.

[Sarah Gonzalez]

Oh, it was permanently damaged from the lentil and leaks.

[Carol Reedy]

Yes.

[Sarah Gonzalez]

Crumble. Yes. Wow.

[Carol Reedy]

As far as they knew, it was permanently.

[Sarah Gonzalez]

That's crazy. That, like, one food product can permanently damage an organ.

[Carol Reedy]

You're telling me.

[Sarah Gonzalez]

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 fruit from a plant. It was called Terra Flower, made from the seed of a tarot 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 US 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. 42 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 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, 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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[Sarah Gonzalez]

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 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?

[Melanie Benesh]

I think the whole food itself would be considered an additive.

[Sarah Gonzalez]

What do you mean? Like a banana is an additive if

[Melanie Benesh]

it's being added to another food? Yeah.

[Sarah Gonzalez]

Oh, but if it's just a whole banana.

[Melanie Benesh]

But if it's just in its whole form, then I think it's just a banana.

[Sarah Gonzalez]

This is Melanie Benesh. She's an attorney at the Environmental Working Group who focuses on the regulations around food and all of the additives and chemicals, 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.

[Melanie Benesh]

Yeah.

[Sarah Gonzalez]

So how do we know which ones are the bad ones?

[Melanie Benesh]

Well, yeah, we'll get there.

[Sarah Gonzalez]

Okay. 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 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.

[Melanie Benesh]

If you are introducing a food or drug that has like heroin, cocaine, alcohol in it, you have to disclose those things.

[Sarah Gonzalez]

Why did you say heroin right now?

[Melanie Benesh]

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, oh, co contained cocaine.

[Sarah Gonzalez]

What was I thinking?

[Melanie Benesh]

Yeah.

[Sarah Gonzalez]

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. And Melanie says it's not really a problem for anyone. Until 1950, Halloween.

[Melanie Benesh]

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.

[Sarah Gonzalez]

A couple of candy manufacturers that year decided that they were gonna make these candies really, really, really orange.

[Melanie Benesh]

They used a lot of this orange dye.

[Sarah Gonzalez]

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. Of coal, of processing coal.

[Melanie Benesh]

These dyes turned out to be really toxic.

[Sarah Gonzalez]

Who would have thought?

[Melanie Benesh]

And the FDA just hadn't really looked

[Sarah Gonzalez]

at 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. This is the current law of the land. Okay?

[Melanie Benesh]

This is a great law. It is a good system. It is a very high safety standard.

[Sarah Gonzalez]

But there was a problem.

[Melanie Benesh]

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.

[Sarah Gonzalez]

It was taking the FDA a long time to approve every brand new ingredient. Was it like months? A year?

[Melanie Benesh]

Oh, years.

[Sarah Gonzalez]

Oh, years. Yeah. That's red tape. That feels annoying. The 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.

[Melanie Benesh]

Companies start getting frustrated by how long it's taking. So companies started thinking, is there another way?

[Sarah Gonzalez]

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 grass as it has come to be known. The grass 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.

[Melanie Benesh]

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.

[Sarah Gonzalez]

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. It 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.

[Melanie Benesh]

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.

[Sarah Gonzalez]

Come on.

[Melanie Benesh]

Fda, I am going to ask you to stop your review, please. And I call this the take backsies provision.

[Sarah Gonzalez]

You, the food maker goes.

[Carol Reedy]

Never mind.

[Sarah Gonzalez]

Just pretend like we didn't show you anything.

[Melanie Benesh]

Fda, please stop. 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.

[Sarah Gonzalez]

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.

[Melanie Benesh]

No, this, this is a plot.

[Sarah Gonzalez]

This is the flaw.

[Melanie Benesh]

Okay?

[Sarah Gonzalez]

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, teabags, 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 8, 900 new chemicals added. Okay. And only 10 went to the FDA for approval.

[Melanie Benesh]

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.

[Sarah Gonzalez]

The loophole swallowed the law. 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.

[Melanie Benesh]

Well, I think people are getting sick left, right, and center.

[Sarah Gonzalez]

Okay.

[Melanie Benesh]

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.

[Sarah Gonzalez]

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.

[Melanie Benesh]

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.

[Sarah Gonzalez]

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 tarifflower 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.

[Melanie Benesh]

So the bakers of Terraflower 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.

[Sarah Gonzalez]

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.

[Carol Reedy]

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

[Sarah Gonzalez]

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.

[Carol Reedy]

Including babies. Including babies who were breastfeeding their mom's milk. Yeah.

[Sarah Gonzalez]

Oh, from the breast milk. Yeah, 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.

[Carol Reedy]

I'm pretty sure that's how the lawsuit was able to go forward because the babies couldn't sign the arbitrary clause.

[Sarah Gonzalez]

No way.

[Melanie Benesh]

Yes way.

[Sarah Gonzalez]

No way.

[Melanie Benesh]

Yes way.

[Sarah Gonzalez]

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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[Sarah Gonzalez]

This message comes from Capella University. That spark you feel that's your drive for more. Capella University's flexpath Learning format lets you earn your degree at your pace without putting life on pause. Learn more at capella.

[Carol Reedy]

Edu this week on Consider this the president trading massive amounts of stock and settling lawsuits with himself. One legal expert calls it epic corruption in plain sight. There really needs to be a moment

[Bill Marler]

of reform and reconstruction after the wreckage

[Sponsor/Advertisement Voice]

of the current moment, a view of

[Carol Reedy]

that moment and what reform could look like on Consider this. Listen on the NPR app or wherever you get your podcasts.

[Sarah Gonzalez]

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.

[Carol Reedy]

Bill, Bill. Bill is fabulous.

[Sarah Gonzalez]

Yeah, he's good. He also emails like a text message.

[Carol Reedy]

Yes.

[Sarah Gonzalez]

Like he'll be like, hey, send. Do you still want to talk? Send. I'm free at three send.

[Carol Reedy]

Yeah, I love it.

[Bill Marler]

Well, that's, you know, because, you know, I can't help. I. I can't help, but I, you know, we can.

[Carol Reedy]

There's a lot to do.

[Sarah Gonzalez]

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

[Bill Marler]

bug in the system. And I guess I was the bug.

[Sarah Gonzalez]

Any oh, you're the bug. Okay. 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 tariff Terraflower. But you're doing this like. It's like you. The lawyer finds the link, not the fda.

[Bill Marler]

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 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.

[Sarah Gonzalez]

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 tariff flower came from.

[Bill Marler]

So I'm now going, okay, where'd you get the tariff flower? And they're 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 flower? And eventually it went back to one company in Peru called Molinos. And I sued them too.

[Sarah Gonzalez]

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.

[Bill Marler]

So they basically just send out, like cold call emails all over the world to importers in the U.S. europe, everywhere.

[Sarah Gonzalez]

Like, hey, we found a.

[Bill Marler]

Hey, we got this. Got this cool stuff, the flour. It's high in protein and it's from a tree, right? It's from a territory, it's from a tree, all natural.

[Sarah Gonzalez]

And this food importer in the US

[Bill Marler]

Smirks, bit smirks, turned around and pitched it to Daily Harvest, who, interestingly, was right in the middle of the, 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.

[Sarah Gonzalez]

Bill says there was this one safety study done in Peru on rats to

[Bill Marler]

see if the terra flower 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.

[Sarah Gonzalez]

But he says no one, not Daily Harvest, not Smurfs, not Molinos asked the

[Bill Marler]

big questions, has this stuff ever been used in food before? And if so, when? Where are the studies? Where's anything? Is it what's called generally regarded as safe? And the answer to those questions were all no, no, no, no, no.

[Sarah Gonzalez]

But then the rat said Molinos had the rat study. Is that not. Is that not a scientific. No, not why?

[Bill Marler]

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.

[Sarah Gonzalez]

Okay. Except though, Bill, from everything I know about grass, that is exactly how it works. The company can say, hi, I self certify that this is generally regarded as safe and then you're good to go.

[Bill Marler]

That is the way it is done. The assumption is that people making that assertion, they're going to have something that's actually real backing it up.

[Sarah Gonzalez]

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?

[Bill Marler]

Does this happen? Probably all the time. That's what the problem with grass has always been.

[Sarah Gonzalez]

In the case of Terraflower, it wasn't necessarily the company who made the Terraflower 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?

[Bill Marler]

They. They were ultimately purchased by Chobani, the yogurt people.

[Sarah Gonzalez]

So, okay, and then what about Smurks?

[Bill Marler]

Smirks is still around, but did they

[Sarah Gonzalez]

get fined by the fda? Did they have a consequence?

[Bill Marler]

No, the only consequence was me. You know, I sued them and got money from them that are in their insurance company. But ultimately there was no public fine, there was nothing.

[Sarah Gonzalez]

So the FDA doesn't Like surely they say something like, from here on out, do some better testing. Nothing. Why are you nothing.

[Bill Marler]

Shaking your head, nothing.

[Sarah Gonzalez]

Well, the FDA did ban Tara 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 Tara flower, and their insurance ended up paying up. Same with Smurcs and Molinos, according to Bill. We did reach out to all of the company smirks Molinos Chobani, 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. 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 terraflower companies are still around. But Phil says generally companies try to have safe food products and not make people sick.

[Bill Marler]

You know, I honestly think that the, the free market makes sense, that, you know, people taking risks and, you know, and rewards and making money and doing that 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.

[Sarah Gonzalez]

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 find 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.

[Bill Marler]

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.

[Sarah Gonzalez]

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 gallbladders will get more than the other people. In this Terraflower 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 like erotic after drinking it and some even died. These examples are tragic, but Bill Marler and Melanie Benesh 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. For Melanie, it's the additives that don't cause an immediate health effect that are the most concerning.

[Melanie Benesh]

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.

[Sarah Gonzalez]

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 GRAS status and said that removing them could prevent thousands of heart attacks and deaths each year.

[Melanie Benesh]

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.

[Sarah Gonzalez]

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.

[Carol Reedy]

A lot of people say that you don't need a gallbladder, but not having, not having a gallbladder now, I would argue the contrary.

[Sarah Gonzalez]

But you miss your gallbladder, girl.

[Carol Reedy]

You have no idea. Everything, everything is just messy and harder for me.

[Sarah Gonzalez]

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.

[Carol Reedy]

Not much. Not much. It's like rice cakes, you know, like, like nothing.

[Sarah Gonzalez]

Oh my gosh. That's the worst snack I know. And she actually worries a lot about any long term side effects that might pop up from consuming a chemical that poisoned her.

[Carol Reedy]

Especially because I'm so delicate right now. Like, still so delicate.

[Sarah Gonzalez]

Carol did get $100,000 for her gallbladder from that settlement bill one and she's not sure it will cover future medical bills. But the money just came in a couple months ago and she is celebrating a little, going on a trip to Mexico City.

[Carol Reedy]

Hold on a second. I gotta say one more thing. I also bought myself a purse. This is secondhand.

[Sarah Gonzalez]

It's an interesting shape, this purse. Kind of like a pear or a gallbladder.

[Carol Reedy]

Kind of looks like it. That's why it's green.

[Sarah Gonzalez]

She calls it her gallbladder purse. This episode was produced by Sam Yellow Horse 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, also got poisoned by Tara 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 Gonzalez. This is npr. Thank you for listening. This message comes from Capella University. That spark you feel, that's your drive for more. Capella University's Flexpath learning format lets you earn your degree at your pace without putting life on pause. Learn more at capella. Edu Brazil used to have one of the fastest growing economies in the world. People called it the country of the future. There are songs O Brazil futur because it seems like we have it all, man. But then the music stopped on the Planet Money podcast. A lot of countries these days aren't

[Carol Reedy]

rich, they aren't poor.

[Sarah Gonzalez]

They're just kind of stuck in the middle. Why is that? Listen on the NPR app or wherever you get your podcasts.