Search results: food policy action

For some time now, I’ve been arguing that legal scholars ought to be challenging the contention of food corporations that the First Amendment gives them the right to market foods any way they like, even to kids.

I simply cannot believe that the Founding Fathers of the United States intended the First Amendment for this purpose.

In December 2010, I urged public interest lawyers to examine current food marketing practices in the light of the First Amendment.  I am pleased to see that they are now doing so.

Samantha Graff of the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) forwards two co-authored articles published this month:

Health Affairs: Government Can Regulate Food Advertising to Children Because Cognitive Research Shows It Is Inherently Misleading, by Samantha Graff, Dale Kunkel, and Seth E. Mermin.

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children. Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation.

However, case law establishes that the First Amendment does not protect “inherently misleading” commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age twelve should be considered beyond the scope of constitutional protection.

American Journal of Public Health: Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, by Jennifer L. Harris and Samantha K. Graff.

In the United States, one third of children and adolescents are overweight or obese, yet food and beverage companies continue to target them with advertising for products that contribute to this obesity crisis.

When government restrictions on such advertising are proposed, the constitutional commercial speech doctrine is often invoked as a barrier to action. We explore incongruities between the legal justifications for the commercial speech doctrine and the psychological research on how food advertising affects young people.

These papers are a great start to the conversation, as was a previous contribution from these authors: A Legal Primer for the Obesity Prevention Movement, American Journal of Public Health, 2009.

First Amendment scholars: weigh in, please.

And while pondering these questions, take a look at Raj Patel’s piece in The Atlantic, “Abolish the food industry.”  In his view, the First Amendment issue is a no brainer:

I side with the American Psychological Association in thinking that advertising to children is unconscionable. Rather than dwell on the First Amendment issue, which strikes me as an easy case to make, I think it’s worth addressing a deeper question underlying the San Francisco cigarette-in-pharmacy ban: Why allow an industry that profits from the sale of unhealthy food at all?

Additions, February 14: Michele Simon sends links to additional information about this issue:

http://events.lls.edu/past/food-marketing-lr.html

http://www.appetiteforprofit.com/2011/01/27/why-the-happy-meal-is-already-illegal/

http://www.yaleruddcenter.org/resources/upload/docs/what/law/FTCFoodMarketingTV_JLME_3.10.pdf

 

Tim Lang, professor of food policy at City University, London, writes that the U.K. food industry is fighting back over initiatives to reduce calories and mitigate climate change.

He sends an article from the British trade publication, The Grocer, about how the U.K. government has reneged on its “responsibility deal” with industry to reduce calories in food products. 

The idea was to demand that food companies reformulate products, control portion size, and take “action to shift to lower calorie options.”

But now, in response to industry protests,  the U.K. Department of Health is simply inviting food companies to help in the development of calorie-reduction policies.

To this invitation to the fox to guard the chickens, professor Lang comments:

Those of us following the currently fashionable ‘nudge’ theory and other ‘Food Policy lite’ initiatives will note this leak about softening the Responsibility Deal on calorie reduction here in England with concern…Perish the thought that sections of the Food Industry might have lobbied hard to stop any efforts to reduce portion size. Perish, indeed.

Another article in The Grocer points out that Tesco, Britain’s leading food retailer, is pulling out of an agreement to put carbon labels on products becausedoing so is too much trouble.

Professor Lang writes:

Here is the world’s 3^rd largest food retailer, Tesco, apparently saying that the carbon label (a weak system for changing behaviour in the first place, perhaps) takes too much time. Well, well, well.

If this is true…the implications are considerable, not least for the planet, given that a third of European (i.e., rich consumers) greenhouse gas emissions are due to food.

He gives as sources for that statement:

• Tukker, A., et al., Environmental Impacts of Diet Changes in the EU. 2009, European Commission Joint Research Centre Institute for Prospective Technological Studies: Seville.
• Tukker, A., et al., Environmental Impact of Products (EIPRO): Analysis of the life cycle environmental impacts related to the final consumption of the EU-25. EUR 22284 EN. 2006, European Commission Joint Research Centre.: Brussels.
• Audsley, E., et al., How Low Can We Go? An assessment of greenhouse gas emissions from the UK food system and the scope for reduction by 2050 2010, FCRN and WWF: Godalming, Surrey.

So much for voluntary actions by industry.  Regulation anyone?

 This just in: The European Commission issued a statement of regret that the European Parliament vetoed its proposal to allow “percent less” health claims on food packages yesterday.  These are statements that a product contains 15% less sugar, for example.

The Commission thinks such claims will encourage reformulation of food products.  The Parliament believes that such claims are misleading and will promote sales of junk foods. 

Which is right? Who knows?

Lobbyists are supposed to report what they do and how much money they spend doing it, but this information is not easily available to the public.

CBS News reports that PepsiCo spent $750,000 to lobby government last quarter.  This comes to roughly $3 million annually, a drop in PepsiCo’s annual $30.6 billion sales in the U.S.—$57.8 billion worldwide.

What is Pepsi lobbying about?  Open Secrets publishes the filing information on its website.

PepsiCo lobbied the House, Senate, Executive Office of the President, FTC, FDA, and USDA, focusing on these issues, among others:

• Childhood Obesity (generally, no specific legislation)
• Food and beverage labeling (generally, no specific legislation)
• Marketing and advertising issues in response to Interagency Working Group on Food Marketed to Children (IWG) (see previous posts)
• Restrictions on use of supplemental nutrition assistance program (no specific legislation)
• Implementation of S. 3307-healthy, Hunger-Free Kids Act of 2010
• Biofuels policy generally

I’m especially interested in lobbying against the IWG guidelines.  Pepsi, of course, was not alone in opposing them.  As I noted in a previous post, the the Sunlight Foundation reported on food companies lobbying against them.

Media companies also opposed the IWG guidelines, as shown by Viacom’s annual filing with the Security and Exchange Commission, a document forwarded to me by Jeffrey Chester of the Center for Digital Democracy:

…some U.S. policymakers have sought limitations on food and beverage marketing in media popular with children and teens. In April 2011, the Interagency Working Group on Food Marketed to Children (the “IWG”)…requested comment on proposed nutritional restrictions for food and beverage marketing directed to children and teens aged 17 years and under.

Although the guidelines are nominally voluntary, if implemented by food and beverage marketers, they could have a negative impact on our Media Networks advertising revenues, particularly for our networks with programming targeted to children and teens.

Congress asked the FTC to set up the Interagency Working Group to propose guidelines on marketing foods to kids.  Did it really think food companies would accept such guidelines, voluntarily at that?

As I keep pointing out, food companies have to market to kids to sell products and grow sales every quarter.

If they don’t sell products to kids in the U.S., they will intensify efforts to sell products to kids in developing countries, thereby outsourcing childhood obesity.

Surely it’s time for mandatory rules about marketing junk foods to kids?  If not now, how about soon?

Yesterday’s New York Times’ report (in which I am quoted) reminds me that it’s time I commented on the astonishing dispute about potatoes in school meals.

On October 20, 2009, the Institute of Medicine (IOM) issued a report on nutrition standards for school meals.  It recommended that school meals be aligned with the Dietary Guidelines for Americans.  To do so, the IOM said USDA should

Adopt standards for menu planning that increase the amounts of fruits, vegetables and whole grains; increase the focus on reducing the amounts of saturated fat and sodium provided; and set a minimum and maximum level of calories.

To do that, the IOM said USDA should establish (1) weekly requirements for dark green and orange vegetables and legumes, and (2) limits—of one cup a week—on starchy vegetables such as white potatoes, corn, lima beans, and peas.

The IOM’s quite sensible rationale?  To encourage students to try new vegetables in place of the familiar starchy ones.

In January this year, the USDA proposed new nutrition standards for school meals based on the IOM report.  These included the IOM’s recommendation of no more than one cup a week of starchy vegetables.

Please note: the proposal does not call for elimination of starchy vegetables.  It calls for a limit of two servings a week (one cup is two servings).

What’s wrong with that?  Plenty, according to the potato industry, which stands to sell fewer products to the government and could not care less about spreading the wealth around to other vegetable producersPotato lobbyists went to work (apparently the sweet corn, lima bean, and pea industries do not have the money to pay for high-priced lobbying talent).  The Potato Council held a press conference hosted by Senators from potato-growing states.

The result?  The U.S. Senate added an amendment to the 2012 agriculture spending bill blocking the USDA from “setting any maximum limits on the serving of vegetables in school meal programs.”

Mind you, I like potatoes.  They are thoroughly delicious when cooked well, have supported entire civilizations, and certainly can contribute to healthful diets.  Two servings a week seems quite reasonable.  So does encouraging consumption of other vegetables as well.

But what’s at stake here goes way beyond the choice of one vegetable over another.

At issue is Senate micromanagement of nutrition standards under pressure from food industry lobbyists. 

• Lobbyists have no business trying to influence nutrition standards.
• The Senate has no business micromanaging nutrition standards.

This is one more—and a particularly egregious—example of undue industry influence on federal dietary guidance policy.  It is just plain wrong.

My once-a-month, first Sunday Food Matters column in the San Francisco Chronicle is about the difficulty of figuring out the health effects of food chemicals consumed in low doses.

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Taking steps on food chemicals

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

Q: I don’t understand why the FDA does not ban aspartame, food colors, BPA, pesticides and all those other nasty chemicals in food. I can’t believe they are good for us.

A: I can’t, either. But the Food and Drug Administration is required to make decisions on the basis of science, not beliefs.

You eat these chemicals in tiny amounts – parts per billion or trillion. Whether doses this low cause harm is hard to assess for two reasons: science and politics. Scientists cannot easily measure the health effects of exposure to low-dose chemicals. And the industries that make and use these chemicals don’t want to give them up.

Food chemicals elicit plenty of public dread and outrage. But are they harmful?

Controlled clinical trials at normal levels of intake would require vast numbers of subjects over decades. Nobody would fund them.

Instead, researchers use animals consuming much higher doses. I can remember how the diet soda industry ridiculed studies suggesting that saccharine caused bladder cancer in rats: the doses were equivalent to drinking 1,250 12-ounce diet sodas a day.

The difficulties of doing research on low-dose chemicals – and the food industry’s insistence that such doses are safe – explains the FDA’s reluctance to act.

Some examples illustrate the problem.

Aspartame

Some studies suggest that aspartame might cause cancer in rats when consumed at levels typical of diet soft drinks, as well as other problems. But researchers performing better controlled studies have given aspartame a clean bill of health.

Despite public concerns, the FDA’s assessment of the evidence “finds no reason to alter its previous conclusion that aspartame is safe as a general purpose sweetener in food.”

Food dyes

These have been considered a possible cause of hyperactivity in children since the 1970s. Some studies show improved behavior among children placed on additive-free diets. But behavior is difficult to judge objectively, and even controlled studies gave mixed results.

A recent study funded by the British Food Standards Agency is typical. It found most children to be unaffected by removing additives. But a small percentage seemed to get better.

The FDA can only conclude that there is not enough science to decide whether food dyes cause hyperactivity.

BPA (Bisphenol A)

BPA is a component of hard plastic used to make baby bottles and food and beverage cans. It is also an endocrine disrupter. Last year, the FDA concluded that BPA is safe at current exposure levels.

At the same time, the FDA advised children and pregnant women to reduce exposure to BPA. It advised the infant formula and soda industries to find ways to replace it.

The California Legislature has passed AB1319 banning BPA from baby bottles and sippy cups; it’s awaiting Gov. Jerry Brown’s signature.

Recent studies raise concerns about BPA’s effects on the brain and behavior of fetuses, infants and young children, and on cancer, obesity and infertility in adults. Some studies suggest that exposure to BPA is higher than previously estimated. Just last week, the Breast Cancer Fund released a study finding BPA in canned foods designed for children.

Studies by university scientists tend to find harm from BPA at low doses, whereas those by government regulatory agencies and the food industry do not. In the absence of compelling science, regulators have two choices: exercise the “precautionary principle” and ban the chemical until it can be proven safe, or approve it until it can be shown to be harmful.

The United States and European safety agencies – and the food industry, of course – prefer the latter approach.

Pesticides

Research clearly demonstrates that pesticides harm farmworkers exposed to high doses. But recent studies report slightly lower IQ levels in children born to urban women with higher blood levels of pesticides. Although these studies did not control for socioeconomic and other variables that might influence IQ, they raise the possibility that even low levels might be harmful.

What to do?

While waiting for the science to evolve, you can take both personal and political action.

You don’t want potentially harmful chemicals in your foods? Read labels and don’t buy foods with artificial sweeteners or food colors. Kids don’t need them anyway.

Consumer action has already induced baby bottle makers to get rid of BPA. This strategy can work for food colors, too.

Don’t stop eating fruits and vegetables. Their known health benefits greatly outweigh the potential harm of pesticides. Don’t stop eating them.

Buy organic. Pesticides, invisible and unlabeled as they are, constitute a good reason to do so.

Get political. Let your congressional representatives know that more research is needed, but you don’t want to wait for it. You want industry to find healthier alternatives.

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Marion Nestle is the author of “Food Politics” and “What to Eat,” among other books, and is a professor in the nutrition, food studies and public health department at New York University. E-mail comments to food@sfchronicle.com.

This article appeared on page G – 10 of the San Francisco Chronicle

 

In what Bloomberg News terms an “epidemic battle,” food companies are doing everything they can to prevent the United Nations from issuing a statement that says anything about how food marketing promotes obesity and related chronic diseases.

The U.N. General Assembly meets in New York on September 19 and 20 to develop a global response to the obesity-related increase in non-communicable, chronic diseases (cancer, cardiovascular disease, respiratory disease, type 2 diabetes) now experienced by both rich and poor countries throughout the world.

As the Bloomberg account explains,

Company officials join political leaders and health groups to come up with a plan to reverse the rising tide of non- communicable diseases….On the table are proposals to fight obesity, cut tobacco and alcohol use and expand access to lifesaving drugs in an effort to tackle unhealthy diets and lifestyles that drive three of every five deaths worldwide. At stake for the makers of snacks, drinks, cigarettes and drugs is a market with combined sales of more than $2 trillion worldwide last year.

Commenting on the collaboration of food companies in this effort:

“It’s kind of like letting Dracula advise on blood bank security,” said Jorge Alday, associate director of policy with World Lung Foundation, which lobbies for tobacco control.

The lobbying, to understate the matter, is intense.  On one side are food corporations with a heavy financial stake in selling products in developing countries.  Derek Yach, for example, a senior executive of PepsiCo, argues in the British Medical Journal that it’s too simplistic to recommend nutritional changes to reduce chronic disease risk.  [Of course it is, but surely cutting down on fast food, junk food, and sodas ought to be a good first step?]

On the other side are public health advocates concerned about conflicts of interest in the World Health Organization.  So is the United Nations’ special rapporteur for  the right to food, Olivier De Schutter.  Mr. De Schutter writes that the “chance to crack down on bad diets must not be missed.”

On the basis of several investigative visits to developing countries,  De Schutter calls for “the adoption of a host of initiatives, such as taxing unhealthy products and regulating harmful food marketing practices…Voluntary guidelines are not enough. World leaders must not bow to industry pressure.”

If we are serious about tackling the rise of cancer and heart disease, we need to make ambitious, binding commitments to tackle one of the root causes – the food that we eat.

The World Health Organization’s (WHO) 2004 Global Strategy on Diet, Physical Activity and Health must be translated into concrete action: it is unacceptable that when lives are at stake, we go no further than soft, promotional measures that ultimately rely on consumer choice, without addressing the supply side of the food chain.

It is crucial for world leaders to counter food industry efforts to sell unbalanced processed products and ready-to-serve meals too rich in trans fats and saturated fats, salt and sugars. Food advertising is proven to have a strong impact on children, and must be strictly regulated in order to avoid the development of bad eating habits early in life.

A comprehensive strategy on combating bad diets should also address the farm policies which make some types of food more available than others…Currently, agricultural policies encourage the production of grains, rich in carbohydrates but relatively poor in micronutrients, at the expense of the production of fruits and vegetables.

We need to question how subsidies are targeted and improve access to markets for the most nutritious foods.…The public health consequences are dramatic, and they affect disproportionately those with the lowest incomes.

In 2004, the U.N. caved in to pressures from food companies and weakened its guidelines and recommendations.  The health situation is worse now and affects people in developing as well as industrialized countries.  Let’s hope the General Assembly puts health above politics this time.

 

Like many food advocates I know, I’ve been invited to participate in a “food dialogue” (I couldn’t because of previous commitments):

Americans have a lot of questions about how our food is raised. What is the impact on our health and the health of the planet? It seems there are more questions than answers. Join us on September 22 for The Food Dialogues — a new effort to bring together different viewpoints on agriculture.

We are inviting leaders in food, cooking, media and policy, farmers of all types and business leaders to be part of the discussion. Four panels in key locations around the country will discuss Americans’ biggest questions about farming and ranching from the cost of food to the environmental impact. Join us live or virtually.

The invitation comes from the U.S. Farmers & Ranchers Alliance (USFRA).  This is

a newly formed alliance currently representing more than 50 of the top farmer- and rancher-led organizations and agricultural partners. We are committed to working together to continuously improve how we raise food that provides healthy choices for people everywhere. We are an industry that has always looked at how to do things better, including how we listen to and answer Americans’ questions.

What is this all about?

I am grateful to Nancy Huehnergarth of the New York State Healthy Eating and Physical Activity Alliance for her explanation, “Let the Big Ag reframing begin.”  She points out that this is a professional marketing campaign Zocaló Group (Ketchum Public Relations) and that

any alliance that starts out with a $30 million budget means business and will be a force to be reckoned with. The USFRA’s goal, obviously, is to begin to reframe the debate about food production and agriculture in this country — a debate that up until now has been dominated by food and agricultural reformers.

Pay close attention to what this group says to divert attention from what Nancy summarizes as the “deplorable conditions, unnecessary subsidies and unsafe/unhealthy practices that have, sadly, become mainstream in our food and agricultural system.”

Update September 18: Here is SourceWatch.com’s take on USFRA.

I just received a message from Samantha Graff, the director of legal research at Public Health Law & Policy, an advocacy group in Oakland, California.

This morning, she writes, 36 legal scholars—including several experts on the First Amendment—weighed in on the food industry’s fight against proposed nutrition standards for foods and beverages marketed directly to children.  This is the very issue I wrote about in yesterday’s San Francisco Chronicle column and have discussed in previous posts.

In a letter sent this morning to federal agencies, the legal scholars point out that because food and beverage companies are free to ignore the nutrition recommendations, the draft principles “do not restrain or compel anyone’s speech. They are not, in fact, government regulations at all.”

A key industry strategy has been to recruit lawyers to write white papers charging that the proposed nutrition standards violate First Amendment rights to free speech.

Recall that Congress asked the FTC to join with the FDA, CDC, and USDA to recommend standards for food products marketed to kids.  These agencies, collectively known as the Interagency Working Group on Food Marketed to Children (IWG), issued Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.   This report outlines proposed voluntary standards that have been open for public comment.

My initial reaction: the standards were much too generous.  But that’s not how the food industry sees them.  Food companies realized that the standards exclude large proportions of the junk foods they currently market to kids.

They created a new lobbying group, “Sensible Food Policy Coalition” (shades of George Orwell’s 1984).   This group is doing everything it can to block the proposed standards.   Its website links to white papers opposing the recommendations on First Amendment grounds.

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of these claims in a recent blog post, in which he emphasizes the voluntary nature of the proposals.

I’ve said it before and repeat: I am not a legal scholar but intention seems to matter in legal decisions.  The intent of the First Amendment was to protect political and religious speech. I cannot believe that the intent of the First Amendment was to protect the right of food companies to market junk foods to kids.

Marketing to children is unethical.  It should be stopped.  And it’s the government’s responsibility to do it.