The  NY State Supreme Court, Appellate Division, has turned down the Bloomberg administration’s appeal (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene).

The court’s decision in this case begins on page 22:

Like Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority. Accordingly, we declare the regulation to be invalid, as violative of the principle of separation of powers.

…we find particularly probative the regulation’s exemptions, which evince a compromise of social and economic concerns, as well as private interests. As indicated, the regulatory scheme is not an all encompassing regulation. It does not apply to all FSEs [food service establishments]. Nor does it apply to all sugary beverages. The Board of Health’s explanations for these exemptions do not convince us that the limitations are based solely on health-related concerns (pages 17, 18 of the decision).

OK.  So the city should have made the rule apply to all food service places and all sugary beverages.  Live and learn.

Mayor Bloomberg says the city will appeal:

Since New York City’s ground-breaking limit on the portion size of sugary beverages was prevented from going into effect on March 12^th, more than 2,000 New Yorkers have died from the effects of diabetes. Also during that time, the American Medical Association determined that obesity is a disease and the New England Journal of Medicine released a study showing the deadly, and irreversible, health impacts of obesity and Type 2 diabetes – both of which are disproportionately linked to sugary drink consumption. Today’s decision is a temporary setback, and we plan to appeal this decision as we continue the fight against the obesity epidemic.”

The American Beverage Association is pleased.  It’s headline: “Hey New York – Your Beverage Is Still Your Choice!”

We are pleased that the lower court’s decision was upheld.  With this ruling behind us, we look forward to collaborating with city leaders on solutions that will have a meaningful and lasting impact on the people of New York City.

Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.

Sales of full-sugar sodas have been falling for years and getting worse for both Coca-Cola and Pepsi.

Cutting down on the portion sizes of sugary drinks is still a really good idea.

Here’s what the news media say about it:

• Reuters
• The New York Times
• The Wall Street Journal

Food Navigator just did a report on cereal “blockbusters,” the top best-selling brands.

Numbers like these are so hard to come by that they inspired me to make a table.

I looked up some figures on advertising expenditures for specific cereals from Advertising Age, 100 leading advertisers (June 24, 2013).

Top selling cereal brands, July 2012-June 2013

*All numbers rounded off.  **All forms of Cheerios: $167 million

My conclusions:

• At least 8 of the top 10 are sugary cereals.
• At least 5 are targeted to children.
• Six of the top 10 are made by Kellogg.
• Advertising expenditures are roughly proportional to sales (Special K is an exception: not sure why).

Think about what that money could do if used to promote public health.

The FDA has finally released safety rules for imported foods, two years after Congress passed the food safety law.  OK.   We now have them.  At last.

Here’s what the FDA is up against:

• 150 different countries ship foods to the U.S.
• These account for about 15% of the food supply, but 50% of fresh fruits and 20% of fresh vegetables.
• The agency has the capacity to inspect about 2% of imported foods.

To deal with this disconnect, the FDA proposes to hold importers accountable for the safety of what they ship to us.

The proposed rules allow two ways to do this: Importers can do their own onsite safety audit, or they can verify that their suppliers did so.

Both methods involve verification by certified verifiers that suppliers used “prevention-oriented food safety practices” (HACCP in other words), and achieved the same level of food safety as domestic growers and processors.

Neither requires inspection by FDA, although importers may use inspection.

The proposed rule and the third-party accreditation proposed rule are available for public comment for the next 120 days.

The previous proposed rules, for produce safety and food production facilities (see below), have been given another 60 days for public comment.  Comments on all proposals will now be due at the same time.  The FDA expect to issue the rules 12 to 18 months after the comments come in and then it will take another 18 months for rules to go into effect.

What does all this mean?

The FDA hardly has the resources to manage U.S. inspections so expecting it to do foreign inspections is unrealistic.  This plan shifts the regulatory burden to producers and shippers (why does this sound like foxes guarding henhouses?).

The FDA also intends to certify third-party auditors.  These invariably involve conflicts of interest, although that system  seems to have worked fairly reasonably well for organic foods.  But we are talking about the safety of imported foods here, and lives are at stake.

This is undoubtedly the best the FDA can do given its limited resources and its problems with Congress.  This Congress is hardly likely to view food safety as a national priority and give the FDA what it needs.

Recall: FDA appropriations go through agricultural appropriations committees, not health appropriations.  And this Congress cannot even pass a decent farm bill.

Congratulations to the FDA for making the best of a bad situation.  And fingers crossed that the proposals survive, get implemented by 2015, and nothing bad happens in the interim.

The document collection:

• FDA Food Safety Modernization Act (FSMA)
• Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food
• Standards for Growing, Harvesting, Packing, and Holding of Produce for Human Consumption
• Fact Sheet: Foreign Supplier Verification Programs for Importers of Food for Humans and Animals
• Fact Sheet: Proposed Rule on Accreditation of Third-Party Auditors 
• Consumer Update

For a detailed discussion of the pros, cons, and questions, see the account in Food Safety News

Margaret Wittenberg.  The Essential Good Food Guide: The Complete Resource for Buying and Using Whole Grains and Specialty Flours, Heirloom Fruits and Vegetables, Meat and Poultry, Seafood, and More.  Ten Speed Press, 2013.

Wittenberg is the vice president for quality standards and public affairs at Whole Foods.  She’s been with the company since its beginnings in the early 1980s when it was just a sawdust-on-the-floor counterculture grocery in Austin.

How Whole Foods got from there to here is the next book she should write.  In the meantime, we have this one.

Its well organized and useful.  I blurbed it:

At last we have Margaret Wittenberg to answer our most basic questions about any food we see: what is it and what do I do with it. The Essential Good Food Guide is an extraordinarily comprehensive guide to foods, ingredients, and their handling. Sophisticated cooks as well as beginners will be grateful to have this indispensable book at hand.

It’s been more than three years since Michele Obama’s speech to the Grocery Manufacturers Association about the unhealthy effects of their food marketing on kids.

But she’s back, this time talking to an audience representing specific targets of food industry marketing—Hispanics.

In a speech to the National Council of La Raza, she said:

While we still have a long way to go, the good news is that right now, we have everything we need to reclaim our children’s health — that is, if we’re willing to step up and continue to do our part in our own families and communities.

And that starts by using our power as consumers to hold companies responsible for the food they make and how they market it to our kids.

In 2008 alone, companies spent well over half a billion dollars on food, beverage and restaurant ads in Latino media markets — many of them for unhealthy products.

And those of us with kids who have seen our kids begging and pleading for something they saw on TV, we know just how persuasive these ads can be.

So we all know that the food industry has some serious work to do when it comes to how they market food to our kids.

But here’s the thing — ultimately, we all have the power to decide whether or not to actually buy those foods…Goya can produce low-sodium products, but if we don’t buy them, they will stop selling them….

In the end, we create the demand for these products and it’s up to us to demand quality, affordable food that is good for our kids.  But it’s on us.  (Applause)

OK, so she’s not exactly calling for boycotts or talking about legislation that might put some limits on food industry marketing.  But reading between the lines, it comes pretty close.

(Applause) indeed!

USA Today announces that Taco Bell will no longer be offering kids meals with toys or, for that matter, kids meals at all.

How come?  “The future of Taco Bell is not about kids meals,” says Taco Bell CEO Greg Creed. “This is about positioning the brand for Millennials.”

Kids meals bring parents into fast food places.  The article is full of interesting facts:

• The industry sells more than 1.2 billion kids’s meal annually in the U.S.
• Fast-food chains spend about $580 million annually marketing to children under age 12.
• Of the $580 million, about $340 million is spent on producing and licensing toys.

Why is Taco Bell doing this?  Pressures about childhood obesity, of course, but also:

• Kids meals account for only 0.05% of Taco Bell’s overall sales.
• The non-kids’ meal will cost more.  The current meal costs about $2.84.  The a la carte meal will go to $3.17.

Will kids want to eat at Taco Bell with no toy as an incentive?  I can’t wait to find out.

I am an avid reader of Jerry Hagstrom’s Hagstrom Report, which I subscribe to and consider well worth the price.  He not only tracks farm and agriculture policy, but explains it in ways that I can actually understand.

Sometimes, his articles go to the National Journal and other places with open access.  This one gives a lucid history of the farm bill along with the politics of the current congressional impasse.

The history matters because the farm bill is otherwise inexplicable.

Here’s how we got to this point:

• 1933       Congress passes the Agricultural Adjustment Act to deal with commodity surpluses that nobody has any money to buy during the Great Depression.  The bill included production.
• 1936       Supreme Court rules production controls unconstitutional. Congress passes the Soil Conservation and Domestic Allotment Act to deal with this decision and the consequences of the Dust Bowl.
• 1938       Congress passes new Agricultural Adjustment Act (this includes sections of the 1933 law that were unaffected by the Court ruling, the 1936 conservation law, and new commodity legislation that meets the Court’s standards).
• 1949       Congress passes law giving high, fixed-support prices that trigger subsidy payments when market prices fall below certain levels.

Since then whenever Congress passes new farm bills, it suspends the 1938 and 1949 commodity titles  for specific periods of time (the alternative would be to amend those laws, or pass new laws that will be permanent and difficult to change).

Where does SNAP fit in?

• 1964       Congress passes Food Stamp Act
• 1977       SNAP incorporated into farm bill.

Hagstrom points out that SNAP does not have permanent authorization; it expires with the farm bill.  But it is an entitlement, meaning that anyone who qualifies gets funded.    This, however, requires congressional appropriations.

So everything is up to Congress, and none of the reasonable options look possible.

Sad.  Infuriating, actually.

The California food movement took off after the 1980s.  If you want to know how this particular social movement developed, here are two books explaining how and why.

Joyce Goldstein with Dore Brown.  Inside the California Food Revolution: Thirty Years that Changed Our Culinary Consciousness.  University of California Press, 20

Full disclosure.  Joyce Goldstein is an old friend from the days when she ran Square One, very much a part-of-the revolution restaurant in San Francisco, and Dore Brown has been a pleasure to work with on several of my books with UC Press.

With that said, this book addresses this question: Was Alice Water’s Chez Panisse really the start of the good food movement in California?  The short answer is yes.  Everyone discussed in this book seems to have been inspired by Chez Panisse, worked there, or supplied its foods and wines.  Joyce interviewed just about everybody involved in doing interesting things with food and got them to reflect on why they did it and how what they did fit into the larger picture.    She writes from the perspective of a participant passionately devoted to good cooking with excellent ingredients.

Reading the book reminded me of one I mentioned in a previous post:

Sally Fairfax, et al.,  California Cuisine and Just Food.  MIT Press, 2012.

I remembered it because I had written its foreword.  It’s about the development of the food movement in the San Francisco Bay Area, rather than all of California, but it starts earlier and looks at what happened from the perspective of food systems.  Sally Fairfax (also an old friend from my own Bay Area days), and her co-authors examine the roles and accomplishments of everyone along the food chain who produces, transports, sells, prepares, serves, and consumes food.  They describe how the Bay Area food scene (“district,” as they like to call it) evolved to become today’s vibrant community of highly diverse groups working in highly diverse ways to produce better quality food and promote a more just, healthful, and sustainable food system.