Search results: food policy action

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!

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.

Kellogg has had a bad year on the truth-in-advertising front.

First, It took the brunt of the furor over the late and unlamented Smart Choices fiasco, when the program’s first logo turned up on Froot Loops of all things and was attacked by the Connecticut attorney general.

Next, the IMMUNITY banner on Cocoa Krispies drew fire from the San Francisco city attorney’s office.

Both boxes are now collectors’ items.

Now, FoodNavigator-USA reports that Kellogg has taken another expensive beating, this time on its health claim for Mini-Wheats.

In 2009, Frosted Mini-Wheat boxes sported this health claim:  “Clinically shown to improve children’s attentiveness by nearly 20%.”

Of course this cereal can do that, especially when kids eating it are compared to kids who don’t eat any breakfast at all—which is what this study did.

But that’s not what the adorable television advertisements imply, as shown in exhibits A and B in the summary of the class-action decision.

Last April, Kellogg settled a dispute with the FTC over this claim.  The FTC did not argue that the claim was inherently absurd because of the lack of an appropriate control group for the study.  Instead, it took the study at face value and charged Kellogg with exaggerating the results because hardly any children—only 11%—improved attentiveness by 20% or more.

Kellogg has just settled a class-action suit over this claim that will cost the company $2.75 million in order to pay customers between $5 and $15 each in compensation.  The company also will give $5.5 million to charities.

Because of city and state attorneys and the FTC, the most egregious health claims are slowly disappearing from cereal boxes.     But lawsuits do not constitute policy.  What goes on the front of food packages is FDA territory.

FDA: Get to work!

I had a good laugh when Dick Jackson, who chairs the Environmental Health Sciences department at UCLA’s School of Public Health, forwarded this article: “McDonald’s and PepsiCo to help write UK health policy.”

I assumed this was another priceless piece from The Onion, whose recent article on the effects of the U.S. Farm Bill on soybean production is equally hilarious.

But no such luck.  The British food writer, Felicity Lawrence, has three investigative reports in the November 12 issue of The Guardian (U.K.).  You want to see food politics in action?  Watch what is happening in Britain since the conservative government of David Cameron took over (I have commented on this previously).

Lawrence writes that the U.K. Department of Health has invited companies such as McDonald’s, KFC, PepsiCo, Kellogg’s, Unilever, Mars, and Diageo to form “food networks” to write policies to address public health problems such as obesity, alcohol, and diet-related disease.  I have highlighted some of the critical issues in red.

The food network to tackle diet and health problems includes processed food manufacturers, fast food companies, and Compass, the catering company famously pilloried by Jamie Oliver for its school menus of turkey twizzlers. The food deal’s sub-group on calories is chaired by PepsiCo, owner of Walkers crisps.

The leading supermarkets are an equally strong presence, while the responsibility [for the] deal’s physical activity group is chaired by the Fitness Industry Association, which is the lobby group for private gyms and personal trainers.

In early meetings, these commercial partners have been invited to draft priorities and identify barriers, such as EU legislation, that they would like removed. They have been assured by Lansley [the health secretary] that he wants to explore voluntary not regulatory approaches…Using the pricing of food or alcohol to change consumption has been ruled out. One group was told that the health department did not want to lead, but rather hear from its members what should be done.

As for what this means:

Jeanette Longfield, head of the food campaign group Sustain, said: “This is the equivalent of putting the tobacco industry in charge of smoke-free spaces. We know this ‘let’s all get round the table approach’ doesn’t work, because we’ve all tried it before, including the last Conservative government. This isn’t ‘big society’, it’s big business.”

Lawrence has two additional articles on the background of this move.  “First goal of David Cameron’s ‘nudge unit’ is to encourage healthy living” explains that the focus of these efforts will be on food and alcohol choices:

The idea is that individuals can be persuaded – “nudged” – into making better choices for themselves without force or regulation. The coalition agreement talks about “finding intelligent ways to encourage people to make better choices for themselves.”

Her second background piece, “Who is the government’s health deal with big business really good for?”, explains how this happened.

It must have felt like a new dawn for the food and drinks industries. After more than four years of determined and co-ordinated lobbying, they were about to achieve the corporate PR agency dream: being invited to write the policy themselves. And, if the Conservatives won the election, in Lansley they would have a health secretary who understood them.

He not only subscribed to the libertarian view that public health should be more a matter of personal responsibility than government action; he bought in to the whole pro-business PR view of the world….Lansley had already adopted several of the industry’s favoured approaches to the food, drink and health crises, promising that “government and FSA promotion of traffic light labelling will stop”; that there would be no mandatory extension of advertising restrictions; and that alcohol strategy would focus on the responsible drinking messages and improved labelling the industry preferred to regulation.

Lansley also committed to avoiding a narrow focus on “fear of junk foods” that might demonise individual manufacturers’ products, and to talking instead in terms of diets as a whole, of the balance of energy in and energy out, and of portion size. He had said the government and the Food Standards Agency (FSA) would “highlight the continuing contribution made by business to improving diet by reformulating its products“.

Yeah, right.  Even The Onion could not make this up.

Could this happen here?  Grass-roots democracy, anyone?

In a move that surprises British commentators, the U.K.’s The Food and Drink Federation is calling for more government regulation.

This call is based on a report commissioned by the Federation, Future Scenarios for the UK Food and Drink Industry, which summarizes interviews with food manufacturers, policy makers, civil society representatives, farmers, and retailers, about their visions for the future of the industry.

While the most desirable future was one where sufficient resources were available and consumer behaviours had responded to global pressures, manufacturers and retailers surprisingly preferred a situation where more government intervention was necessary.

What’s going on here?  “It’s about putting in place the right structures and frameworks that give industry the kind of coherence to make investment decisions.”

However, all participants recognised that resource demand would most likely outstrip supply unless action was taken. Even more disastrous would be the scenario where there was insufficient government control and a lack of engagement by people; a severe supply-demand gap, resulting in social unrest.

Oh.  Investment decisions.  And preventing social unrest, of course.

The report concludes that “there is a need for a shared vision for the future of the UK’s food industry based on strong evidence, consistent regulation and consumer engagement.”

Consistent regulation?  This from an industry that successfully lobbied for removing regulatory power from the Food Standards Agency?

As in the U.S., the British food industry wants regulations when they protect industry interests, but strongly opposes those that favor consumer interests.

If the most important risk factor for chronic malnutrition is poverty, natural disaster is surely the most important for acute malnutrition.   Nutrition problems created by natural disasters usually can be alleviated by effective government action and, when necessary, international aid.

But the flood disaster in Pakistan is so huge, and affects so many people over such a large area, that it has become an object lesson in the consequences of international disinterest.  What aid has been forthcoming has been slow to arrive and not much of it comes from the United States.

One result is illustrated in today’s Guardian (UK):

Children at roadside shelter, Northwest Pakistan. Photo: Mohammad Sajjad/AP

The photo was forwarded to me by Patty Rundall, policy coordinator of Baby Milk Action.

It was sent to her by UNICEF, which has produced guidelines on infant feeding and a call for appropriate support for feeding young children in Pakistan.  Bottle feeding in unsterile environments is not healthy for infants.

The Washington Post points out that helping to alleviate this disaster is the right thing to do.  But it is also very much in America’s strategic interest.

If strategic interest is what it takes to get our government and others to move on this, let’s use it.

I’ve been sent a press release from the Institute for Agriculture and Trade Policy in Minneapolis to announce the creation of its new Healthy Food Action website.

The website, says IATP:

makes it simple for health professionals—nurses, dieticians, physicians, public health workers, social workers and others—to engage in major public policy debates that affect our food system. It provides both vital information and easy-to-use tools to contact legislators, government officials and companies.

“Will make it simple” seems more like it.  At the moment, the site seems to be devoted exclusively to the issue of arsenic in poultry feed.  Eventually, it promises to take on other issues such as antibiotics in food animals and the Farm Bill.

Ah yes, the Farm Bill.  It’s none to early to get started on the next one.  Sites like this could help once they get into full swing.

The Institute for Agriculture and Trade Policy works locally and globally at the intersection of policy and practice to ensure fair and sustainable food, farm and trade systems.

Today’s New York Times reports:

The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers. ..the “silent raids,” as employers call the audits, usually result in the workers being fired, but in many cases they are not deported.

What does this have to do with food politics?

Employers say the Obama administration is leaving them short of labor for some low-wage work, conducting silent raids but offering no new legal immigrant laborers in occupations, like farm work, that Americans continue to shun despite the recession. Federal labor officials estimate that more than 60 percent of farm workers in the United States are illegal immigrants.

In my visit to Alaskan seafood processing plants this summer, I saw cannery workers imported from the Philippines or Eastern Europe to work 16 hours a day, 6 or 7 days a week, for the minimum wage or close to it.

Residents of one remote cannery town said they all worked in canneries as teenagers for good wages.  But when the large cannery moved into town, it reduced wages, increased hours, halved the amount paid to fishermen, and imported the Philippine workers.  The canneries, they said, made it clear that they did not want locals working in the plants.

The result: near-poverty life for community residents and near-slavery conditions for the imported workers.

Our immigration system needs a fix to allow workers to come and go without fear of random arrests, firings, or deportations.  Farm working conditions need a fix.  Reexamining the minimum wage might be a good starting point.

Your thoughts?