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Mayor Bloomberg’s cap on soda sizes at 16 ounces has elicited a hard-hitting, Friday-afternoon (let’s hide it if we can), but otherwise well organized cease-and-desist lawsuit from the soft drink industry.

The suit, New York Statewide Coalition of Hispanic Chambers of Commerce et al. v. The New York City Department of Health and Mental Hygiene et al., is represented by Latham & Watkins, a law firm that often represents the American Beverage Association (ABA), the leading soft-drink trade group and one of the plaintiffs in this case.

Other plaintiffs are the Teamsters Local 812, the Korean-American Grocers Association of New York, the National Association of Theatre Owners of New York State, and—-no surprise—the National Restaurant Association.

These groups are all concerned that the soda cap might encourage people to reduce soda sales (its point, after all).  This would drive down profits for stores, concession stands in movie theaters, restaurants, and the people who distribute sugary beverages.

The basis of the suit includes these complaints [with my comments]:

• The Board of Health does not have the legal authority to cap soda sizes at 16 ounces (only the City Council does): “This case is not about obesity in New York City,” the plaintiffs wrote in the opening sentence of the suit. “This case is about the Board of Health, appointed by the mayor, bypassing the proper legislative process for governing the city.” [Legal experts think that cities do have the authority to regulate public health, witness smoking bans, helmet laws, and seatbelt requirements]
• The cap is a ban on personal freedom. [Nobody is stopping people from buying more soda if they want it]
• Most New Yorkers oppose the soda cap. [Perhaps because of the extraordinarily expensive campaign conducted by the soda industry]
• The cap is “arbitrary and capricious,” because it applies only to some businesses and targets only certain types of beverages: “Delis and hotdog stands are barred from selling a 20-ounce lemonade, but the 7-Eleven a few feet away remains free to sell Big Gulps.”  [The rule applies to all businesses over which the city has jurisdiction, so there is nothing arbitrary about it] 

This lawsuit is clearly about profits, not health.  Let’s hope the Court throws it out.

The first 14 of the documents are available in a zip file here (but only for the next week or so).

Michael Pollan has a terrific piece in this Sunday’s Times Magazine on why the food movement needs to get behind California’s Proposition 37, flaws and all.

California’s Proposition 37, which would require that genetically modified (G.M.) foods carry a label, has the potential to do just that — to change the politics of food not just in California but nationally too.

…sooner or later, the food movement will have to engage in the hard politics of Washington — of voting with votes, not just forks.

…Obama’s attitude toward the food movement has always been: What movement? I don’t see it. Show me. On Nov. 6, the voters of California will have the opportunity to do just that.

Helping this along are two videos from Food and Water Watch, both really well done.

• The celebrity-packed “Vote Yes on 37“
• And OMG! GMO!

And then there’s this one, from a creative pro-Prop 37 individual (was he suggesting that it’s OK to give Pepsi to that baby?  Not at all—see comment below from Ali Partavi).

Enjoy!  Whatever you think of GMOs, people want and have a right to know the source of their food.

The Academy of Nutrition and Dietetics (formerly the American Dietetic Association) has just concluded its annual meeting and exhibition.

I was unable to attend but colleagues have been sending photos and giving me products or other objects collected at the exhibition.  This exhibition is always worth a look.  It typically features displays by food companies (Big Food and small) giving away samples of what I love to call “dietetic junk foods” in order to encourage dietitians to recommend them to clients.

Thanks to my NYU colleague, Lisa Sasson, for alerting me to these entertaining examples.

First: sugar-supplemented Stevia:

Next: The National Confectioners Association has a handy guide to moderate candy consumption:

Then: Frito-Lay (owned by PepsiCo) ‘s new Gluten-Free chips.

Potato chips did not ever contain gluten, but never mind.   They remind me of products offered during the low-carb craze a few years ago, like the ones I photographed when working on What to Eat in 2005.

Eat healthfully and enjoy the weekend!

The latest disclosure figures show that Big Soda, in the guise of a community coalition, has spent $2.2 million to defeat the Richmond, CA soda tax initiative in November.

The pro-tax group report spending $25,293 so far.

This means Big Soda is outspending public health advocacy by 87 to 1—along with filing a successful lawsuit to keep from having to disclose its funding of the “community coalition.”

I can think of lots of good things Big Soda could do with that money in this community, none of them having to do with selling more soda.

David vs. Goliath on the November ballot?

Center for Science in the Public Interest (CSPI) has just launched its new drink-less-soda initiative, “The Real Bears” video, just in time for Food Day on October 24.

According to USA Today, CSPI teamed up with

Alex Bogusky, the culturally influential ad legend whose former agency, Crispin Porter + Bogusky, has created ads for such hot-button clients as Burger King, Domino’s and, yes, Coca-Cola.

Bogusky left the agency world in disgust two years ago. Now, he’s back in a new role: taking on the cola industry….

The video is, to say the least, hard hitting.  I’m waiting for soda industry responses and will post them here.  Stay tuned.

Yesterday, Beverage Digest announced that the American Beverage Association (ABA) and its Big Soda members—PepsiCo, Coca-Cola, and Dr Pepper/Snapple—were starting a “new vending machine program to help combat obesity.”

The new “Calories Count Vending Program” starts in 2013 in city buildings in Chicago and San Antonio.

This, Beverage Digest says, “is what can happen when the industry and mayors work together, collaboratively.”   It quotes an executive from Dr Pepper Snapple: “this program is yet another example of how the beverage industry is providing meaningful solutions to help reduce obesity.”

Really?  If these companies really wanted to help reduce obesity, they might start by eliminating sugary drinks.  But never mind.  This is about politics, not health.

For one thing, calorie labels are going to have to go on most vending machines anyway, as soon as the FDA gets around to writing the regulations for them.

For another, this move heads off any attempt to introduce (horrors!) taxes on sodas or caps on bottle size in those two cities.

Chicago Mayor Rahm Emanuel is quite clear about that.  He says his approach to the health issue “is better because it emphasizes personal responsibility.”

He prefers to have Chicago city workers compete with those from San Antonio for a $5 million grant from the ABA.  The ABA has also agreed to pay $1,000 to workers who meet health goals to be determined.

Although this might look like a bribe, Emanuel denies that the program is a payoff:

I believe firmly in personal responsibility,” the mayor said at a City Hall news conference with the pop company executives. “I believe in competition, and I believe in cash rewards for people that actually make progress in managing their health care.”

According to the New York Times, Mayor Emanuel actively sought the ABA grant.

If only personal responsibility worked, alas.  So much evidence now shows that it’s not enough to change behavior.  It is also necessary to create a food environment more favorable to making healthful choices.

That’s the public health approach taken by New York City Mayor Michael Bloomberg .  His approach is to make the food environment more conducive to healthful choices without anyone having to consciously think about them.  This approach is more likely to reduce soda consumption, which is why the ABA wants to head off taxes and caps.

Oh well.  Education is always a good thing, and here’s what the ABA says the vending machines will look like.

Here’s my monthly (first Sunday) Food Matters column for the San Francisco Chronicle.  For links to appropriate resources and what to do to defend the new standards, scroll down to Friday’s post.

Nutrition and public policy expert Marion Nestle answers readers’ questions in this column written exclusively for The Chronicle. E-mail your questions to food@sfchronicle.com, with “Marion Nestle” in the subject line.

Q: Can you please explain to me why the USDA is restricting the number of calories in school lunches. It’s bad enough that school food is so awful that the kids won’t eat it. Now are they supposed to go hungry as well?

A: I don’t know whether to laugh or cry at a question like this or at the uproar over the U.S. Department of Agriculture’s new nutrition standards. As Comedy Central‘s Jon Stewart pointed out in his not-to-be-missed commentary on Sept. 27, if kids aren’t eating the food because they hate it, the calorie limits hardly matter. And if kids are hungry, the remedy is simple: Eat the food.

The new lunch standards hardly call for starvation rations. Kindergarteners through fifth-graders get up to 650 calories. The maximum is 700 for kids in grades six through eight, and 850 for high schoolers. All kids can have extra servings of vegetables. This ought to be plenty to get most of today’s kids – sedentary, underactive and prone to obesity as they are – through any school day.

Let’s face it. This uproar has nothing to do with school food. It has everything to do with election-year politics.

Some Republicans view school meals as convenient generator of emotional opposition to the incumbent president.

You don’t believe me? Take a look at the “No Hungry Kids Act” introduced by Reps. Steve King, R-Iowa, and Tim Huelskamp, R-Kan., both members of the House Agriculture Committee.

Their act would repeal the USDA’s hard-won nutrition standards and prohibit upper limits on calories. As King explains, this is to undo “the misguided nanny state, as advanced by Michelle Obama’s Healthy and Hunger-Free Kids Act.”

You can’t make this stuff up.

Let me briefly review where these standards came from. In 2004, Congress required school districts to develop wellness policies, but left the details up to the districts. In part to resolve the resulting inconsistencies, Congress asked the USDA to develop new nutrition standards. In turn, the USDA asked the Institute of Medicine to study the situation and make recommendations.

The institute’s 2009 report called for aligning school meals with the Dietary Guidelines for Americans by increasing fruits, vegetables and whole grains, but reducing saturated fat, sodium and calories. It suggested encouraging students to try new vegetables by establishing weekly requirements for various kinds, but to limit starchy vegetables like potatoes to one cup a week.

In 2010, Congress passed the Healthy, Hunger-Free Kids Act which required the USDA to set nutrition standards for all food sold and served in schools, not only at breakfast and lunch, but also at any time during the school day. The USDA used the institute’s report as a basis for its proposals.

These, you may recall, got the USDA in trouble with lobbyists for businesses that supply French fries and pizza to schools. The Senate intervened and amended the agriculture spending bill to say that none of its funds could be used to “set any maximum limits on the serving of vegetables in school meal programs” or “require crediting of tomato paste and puree based on volume.” The results include no weekly limits on French fries; a dab of tomato paste on pizza now counts as a vegetable serving.

With these allowances in place, the USDA released the new standards in January. Most observers viewed them as an important accomplishment of the first lady’s Let’s Move campaign to end childhood obesity within a generation.

What about student outrage that the new meals leave them hungry? As a strong supporter of student activism, I applaud students getting involved in protests. Their actions have already persuaded Agriculture Secretary Tom Vilsack to tell kids to eat healthy snacks if they are hungry.

Perhaps student activism around calories will be a first step toward advocacy for more substantive goals for their education and wellness: more and better paid teachers, better educational materials, more sensible testing, better quality food in schools, and instruction in how to grow, harvest and cook food.

But where, I wonder, are the adults in all of this? Childhood obesity is not trivial in its consequences for many kids, and school food ought to be a model for how healthy, delicious food is normal fare.

Schools in which adults – principals, teachers, school food personnel and parents – care about what kids eat and act accordingly are setting examples that what kids eat matters just as much as what kids learn.

It’s shameful that elected officials would attempt to undermine the health of America’s children for partisan political purposes.

Marion Nestle is the author of “Why Calories Count: From Science to Politics,” as well as “Food Politics” and “What to Eat,” among other books. She is a professor in the nutrition, food studies and public health department at New York University, and blogs at foodpolitics.com. E-mail: food@sfchronicle.com

It seems crazy to think that USDA’s school nutrition standards–at least five years and two Institute of Medicine studies in the making—are at risk, but so they are.

My monthly San Francisco Chronicle Food Matters column is on this topic.  I will post it this coming Sunday.

In the meantime, Margo Wootan of Center for Science in the Public Interest (CSPI) writes:

As you may have heard, there has been some push back about the new calorie limits in school lunches. Rep. Steve King (R-IA) recently introduced the No Hungry Kids Act (HR 6418), which would prohibit USDA from implementing calorie limits in school lunches. There also have been a few campaigns among high school students who are displeased with the 850-calorie limit.

While we do not expect the No Hungry Kids Act to gain much traction, we also don’t want this negative attention to overshadow the wonderful work going on in so many schools across the country. We need your help to counter these efforts. Below are a few ideas for how you can help:

• Join the conversation on social media (see attached model Facebook and Twitter posts)
• Use or share the attached Infographic (or create your own) to help spread the message that the science-based calorie limits in school lunches are reasonable and provide plenty of food for most students [Here are more illustrations: calories in lunches, and why the new calorie standards are reasonable. CSPI also provides talking points against the No Hungry Kids Act].
• Spread the word to your members, colleagues, and/or members of Congress
• Issue a statement in support of the new school meal standards (See statements from FRAC and Mission Readiness)
• Share pictures of school lunches, that are meeting the new standards (Check out CSPI’s Pinterest page for examples)

These resources and many others are available at www.schoolfoods.org/back2school. You can also find additional talking points and resources at http://www.fns.usda.gov/cnd/Healthierschoolday/. For more information or if you have any questions, contact hjones@cspinet.org.

CSPI’s efforts deserve support.  Anything you can do to help, please do!

Addition: Obama Foodorama has a riveting account of how the Drudge Report drove media interest in the kids’ “We Are Hungry” video.

Update, November 2: House Republicans call for GAO investigation of USDA’s nutrition standards.