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Every now and then, I enjoy answering questions posed by Eating Liberally’s Kerry Trueman.  Here’s one for today.

Let’s Ask Marion: How Did Junk Food and Obesity Become a Red State/Blue State Debate?

(With a click of her mouse, Kerry Trueman, aka kat, corners Dr. Marion Nestle, NYU professor of nutrition and author of Feed Your Pet Right, Pet Food Politics, What to Eat, Food Politics, and Safe Food):

kat: The “agri-culture war” that’s long been simmering is coming to a boil now, as recently noted in The Washington Post, The Daily Dish, and elsewhere in the blogosphere.

The Palin/Beck/Limbaugh axis of egos is vigorously defending junk food, lamenting the passage of the food safety bill, and decrying all efforts to address our obesity epidemic, even as David Frum, a rare voice of reason (sometimes) on the right, tells CNN that obesity poses a greater threat to our national security than, say, openly gay soldiers.

You yourself are under fire yet again (sigh) from those uber-astroturfers at the Center For Consumer Freedom for having the audacity to question whether our cherished principle of free speech entitles Big Food to emblazon the labels of its edible food-like substances with Big Lies (i.e. dubious, unproven health claims).

Why do you think that the issues of junk food and obesity have become so incredibly politicized?

Dr. Nestle: Politicized? Of course they are politicized. Junk food and obesity are key indicators of political divisions in our society. For starters, junk food is cheap and obesity is more common among low-income populations. So right away we are into divisive issues of income inequality and class and, therefore, who pays for what and which sectors of society get government handouts.

The minute we start talking about small farms, organic production, local food, and sustainable agriculture, we are really talking about changing our food system to accommodate a broader range of players and to become more democratic. Just think of who wins and who loses if $20 billion in annual agricultural subsidies go to small, organic vegetable producers who are part of their communities rather than to large agricultural producers who do not live anywhere near their corn and soybeans.

The issue at stake is who gets to decide how food is grown and what people eat. For as long as I can remember, big agriculture and big food were in control, in close partnership with congressional agricultural committees and the USDA. Today, the food movement–democracy in action, if you will–is challenging their authority and power. No wonder defenders of the status quo don’t like the challenge. It is only to be expected that they are fighting back.

I see the intensity of the debate (and, alas, the personal attacks) as a clear sign that the movement is making headway. The system is clearly changing. It has to change if we are to address obesity, climate change, and the other unsustainable aspects of our present ways of doing food business.

Anyone who is working to reduce income inequity and to make healthier food available to every American has to expect to encounter the methods corporations always use to fight critics: personal attacks, claims of junk science, invocation of personal responsibility, cooptation, and plenty of behind-the-scenes lobbying.

Telling truth to power has never been popular. But I’m convinced it’s worth doing.

It is always interesting to watch the food industry deal with criticism.  One common strategy is to discredit critics through personal attacks. Most companies are too embarrassed to do this publicly.  Instead, they pay public relations firms—in this case, the Center for Consumer Freedom—to do this for them.

What is this group?  See Center for Consumer Freedom Exposed and follow the links to see lists of the food industry donors it keeps secret.

If you have been reading this blog for a while, you know that I am an occasional target of this group, as can be seen from  the piece it posted yesterday:

Marion Nestle, Food Fascist

Sound harsh? After our latest check-in with everyone’s favorite anti-pleasure nutritionist, we think it’s completely appropriate. Marion Nestle published an article on her blog today quoting a law professor named Timothy Lytton, who insists that trampling on anyone’s First Amendment rights is a no-no. That prompted Nestle and fellow obesity warrior Dr. David Ludwig to fire off an astonishing letter.

The post goes on to quote extensively from my comments earlier this week.  It also points out:

At the end of the day, there’s no high-minded Constitutional principle in play here. This is about Marion Nestle attacking businesses she doesn’t like. This is the same professor who delivered a speech at an event sponsored by the “Socialist Conference” of the American Public Health Association. Nestle also addressed the “Socialist Scholars Conference” in 2003.

These kinds of strategies speak for themselves.

The corporations that hire the Center to do things like this should be ashamed of themselves.

The November issue of San Francisco Medicine is devoted to Food for Thought: Practical Nutrition for Physicians (the entire issue is online).

It’s got a great collection of short articles, if I may say so myself.  A throwback to the days when I taught nutrition at the University of California San Francisco School of Medicine, my contribution, the first one, is called “Doctor’s Orders: What Should Doctors Tell Patients About Nutrition?”

I am a realist. I am well aware of the fact of time constraints, and my list of suggestions for what doctors should tell patients about diet and health is necessarily short. Fortunately, it doesn’t take long to tell patients that what they eat matters to their health. It takes only a minute to explain that healthy eating simply means attending to food variety, minimal processing, and moderation.

This collection is worth a read.  For example:

• David Wallinga: An Unhealthy Food System: Suggestions for Physician Advocacy
• Brian Raymond: Taking Action: A Health Sector Guide to Food System and Agricultural Policy
• Kelly Brownell: How the Food Industry Drives Us to Eat
• Narsai David: Eating Sensibly: Using Common Sense and Moderation
• Shannon Udovic-Constant, MD, and Steve Heilig: Health Policy Perspective: Sugar Politics Versus Health

Take a look and use!

Food companies insist that they can make health claims for their products, whether backed by science or not, because commercial speech is protected by the First Amendment.

The First Amendment, in case you have forgotten, says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a commentary in JAMA earlier this year about front-of-package labeling, David Ludwig and I argued that it was time to take another look at current interpretations of the First Amendment suggesting that free commercial speech is equivalent to free political or religious speech.  Surely, we said, consumers would be better off without front-of-package labels and health claims on food products.

Last month, the British journal Public Health Nutrition published an article by  Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School.

His article, “Banning front-of-package food labels: First Amendment constraints on public health policy,” takes issue with our JAMA argument:

In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages.

Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’.

Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.

And now, Public Health Nutrition has just published our letter in response to Lytton’s paper.  We say:

In his thoughtful paper about front-of-package food labels, Timothy Lytton states that a ban on such labels would violate First Amendment provisions of the US Constitution. Lytton cites case law to argue that lower courts have consistently interpreted the First Amendment as providing guarantees of free commercial speech.

Indeed they have, and in 2003, the Bush Administration Food and Drug Administration (FDA) stopped defending against misleading health claims cases on First Amendment grounds. We are not lawyers and make no pretense of arguing case law. However, it seems obvious to us that this interpretation of the First Amendment neither follows its original intent, nor promotes the public interest.

The founding fathers clearly intended the First Amendment to guarantee the right of individuals to speak freely about religious and political matters, not the right of food companies to market junk foods to children and adults. Laws are subject to reinterpretation and change, as the history of civil rights legislation makes clear.

That politics influences interpretation of the law at the highest level is evident from the US Supreme Court’s decisions in Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010).

We think the time has come for major legal challenges to the right of corporations to mislead the public on the grounds of free speech. The front-of-package health claims controversy demands immediate attention. We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton’s arguments make the need for such reconsideration perfectly evident.

Public interest lawyers: get to work!

“Minimally processed food a health goal” is the title of today’s Food Matters column in the San Francisco Chronicle.

Q: I may be preaching to the choir here, but isn’t eating a variety of unprocessed (or at least minimally processed) foods the best way to make sure your diet is healthy?

A: Indeed it is, and processing is the healthful food movement’s new frontier. Processed is code for “junk” foods – foods of minimal nutritional value. These crowd the center aisles of supermarkets, add loads of unneeded calories, rely on added nutrients for health benefits, last forever on the shelves and generate enormous profits for their makers.

Sodas are the obvious examples. They have no nutrients (unless fortified), and all their calories come from added sugars.

The food industry will insist that practically everything you eat is processed in some way. Unprocessed foods are rare exceptions – fruits direct from the tree or vine, vegetables pulled from the ground, nuts from wherever they come from, and raw meat, fish, eggs or milk.

Everything else is at least minimally processed – washed, aged, dried, frozen, canned, pasteurized or cooked. But these cause little, if any, loss of nutritional value and make some nutrients more available to the body.

In contrast, more extreme processing changes foods. It reduces the nutritional value of basic food ingredients, adds calories from fats and sugars, and disguises losses in taste and texture with additives such as salt, colors, flavors and other chemicals. Manufacturers add vitamins, minerals, antioxidants, omega-3s and probiotics expressly to make health claims.

Manufacturers say they make the products to give you what you demand: cheap, easy-to-eat-anywhere foods that require no preparation and give you the tastes you love. They back these contentions with increasingly far-fetched health claims, billions of advertising dollars and lobbyists galore.

The big issue is “ultra-processing,” says Carlos Monteiro of the University of São Paulo in Brazil. Writing in the November issue of the online Journal of the World Public Health Nutrition Association, Monteiro ranks the effects of food processing on health as the most important issue in public health nutrition today.

Ultra-processed foods, he says, are the primary cause of the rapid rise in obesity and associated diseases throughout the world.

He charges the food industry with creating durable, convenient, attractive, ready-to-eat or ready-to-heat products that are so palatable that they are habit-forming. And they are meant to be eaten everywhere – in fast-food places, on the street and while watching television, working or driving.

Ultra-processed foods are much higher in calories for their nutrients than unprocessed and minimally processed foods. They have loads of fat, sugars and salt, but are low in vitamins, minerals and fiber.

They are often cheaper than relatively unprocessed foods, especially when sold in supersize portions at discounted prices. And they are often the only foods available in convenience stores or vending machines.

He notes that virtually unregulated advertising identifies ultra-processed foods and drinks as necessary – and, when nutrients are added, as essential – to modern lifestyles and health. Overall, Monteiro says, their high palatability, along with aggressive and sophisticated marketing, undermine the normal processes of appetite control and cause adults and children to overeat.

This is just another way of saying what former Food and Drug Administration head David Kessler says in his provocative book, “The End of Overeating.” Kessler argues that processed and fast foods high in fat, sugars and salt have turned us into a nation of “conditioned overeaters” unable to recognize hunger or satiety.

Current policies ensure that ultra-processed foods stay cheap, and it’s no accident that the relative cost of fruits and vegetables has gone up by 40 percent since the 1980s, while the relative price of sodas and fast food has declined.

If you can afford it, choosing relatively unprocessed foods is good advice. As I wrote in “What to Eat,” it’s best to stick to the real foods around the supermarket perimeter. My only slightly facetious shopping rules: Avoid processed foods with more than five ingredients, ingredients you can’t pronounce, and those with cartoons on the package aimed at marketing to kids.

Marion Nestle is the author of “Food Politics,” “Safe Food,” “What to Eat” and “Pet Food Politics,” and is a professor in the nutrition, food studies and public health department at New York University. E-mail her at food@sfchronicle.com, and read her previous columns at sfgate.com/food.

This article appeared on page L – 3 of the San Francisco Chronicle

Occasionally I write short pieces on request.  A couple have just been published.

The State Department’s Bureau of International Information Programs (who knew?) runs a website, America.gov, on which it provides answers to questions “YOU Asked!”   It invited me to respond to the question, “Why are so many Americans overweight.”

And the professional journal, Childhood Obesity, asked several people to contribute to its new “Industry Watch” column.  The question: “Will private sector companies “step up to the plate” to protect children’s health?

Enjoy!  I file links to these and other writings under Publications on this site.

I haven’t seem much comment on what’s happening with Center for Food Safety v. Vilsack, a suit to prevent planting of genetically modified (GM) sugar beets because USDA allowed them to be grown without filing an Environmental Impact Statement (EIS).

This is kind of after-the-fact because Monsanto’s GM sugar beets have been planted widely for the last five years and now comprise 95% of the sugar beet crop in the U.S.

As the Center for Food Safety explains,

The court outlined the many ways in which GE sugar beets could harm the environment and consumers, noting that containment efforts were insufficient and past contamination incidents were “too numerous” to allow the illegal crop to remain in the ground. In his court order, Judge White noted, “farmers and consumers would likely suffer harm from cross-contamination” between GE sugar beets and non-GE crops. He continued, “the legality of Defendants’ conduct does not even appear to be a close question,” noting that the government and Monsanto tried to circumvent his prior ruling, which made GE sugar beets illegal.

No surprise, Monsanto is appealing and is likely to be joined by the government in the appeal.  Food Safety News quotes a Monsanto spokesman:

With due respect, we believe the court’s action overlooked the factual evidence presented that no harm would be caused by these plantings, and is plainly inconsistent with the established law as recently announced by the U.S. Supreme Court,” said David Snively, general counsel for Monsanto, in a news release….The issues that will be appealed are important to all U.S. farmers who choose to plant biotech crops…We will spare no effort in challenging this ruling on the basis of flawed legal procedure and lack of consideration of important evidence.”

Food Safety News also reports that a Washington state apple grower has petitioned USDA to allow it to market a GM apple engineered to resist browning.

But wait.  I’m confused.  Isn’t the FDA supposed to be the agency that approves the planting of GM foods?

This sent me right to the FDA site that summarizes GM varieties that are permitted to be planted (“completed consultations“).  I see papayas and cantaloupe on the list, but not a single apple variety.

How can this company market a GM variety of apples if the FDA hasn’t approved it?  Can anyone explain what’s going on here?  Thanks.

Update December 3:  A judge in San Francisco ordered GM sugar beets planted on 256 acres to be destroyed.  USDA is appealing.  And now everyone is worried about sugar shortages.  Oh dear.

In case you missed it (and how could you?), the FDA Food Safety Modernization Act passed the Senate yesterday by a huge majority.  Thanks to Beth Bainbridge for sending me this link to a map of how the votes went—a graphic, interactive illustration of partisan politics in action.

If you would like to know what the bill really says as opposed to the mythology, you can read a short Summary , or take a look at the entire bill.  And here’s FoodSafetyNews on some of those details.

The next steps: (1) reconciliation with the House version passed a year ago July, and (2) submission of the joint version to President Obama for signature.  This has to be done before this session of Congress expires in just a few weeks.

By all reports, reconciliation will not be so easy.  FoodSafetyNews explains all the things that can derail the bill between now and then, and the list is long and weird (who ever heard of “blue-slipping,” for example?).

Some folks are happy about the Senate action, but some most definitely are not.  FoodSafetyNews summarizes the reactions, as does the New York Times account.

Time is short.  The stakes are high.  Keep fingers crossed.