In a friend of the court brief, the justice department said human and other genes should not be eligible for patents because they are part of nature.

Although the brief focuses on genes for breast and ovarian cancer, and specifically excludes man-made genetic modifications like those in corn and soybeans, it could be interpreted as having some implications for food biotechnology—excluding “biopiracy,” for example.

As I explain in my book, Safe Food: The Politics of Food Safety, patents on genetically modified foods raise at least six difficult issues, biopiracy among them:

• Ownership: the patents are often broad and owned by just a few companies. Biopiracy: this is the pejorative term for the private appropriation of public biological resources, the precise issue that elicited the justice department’s brief.
• Enforcement: biotechnology companies use aggressive techniques to enforce their patent rights.Injustice: court decisions have consistently favored the patent rights of food biotechnology companies.
• Biopiracy: the pejorative term for the private appropriation of public biological resources.
• Animal rights: patenting of animal genes raises religious and ethical questions.
• Terminator technology: the patenting of genes that prevent seed germination (meaning that farmers cannot save seeds and have to buy new ones every year)

Even with its limited scope, patent lawyers and biotechnology industry representatives hate the brief.

One patent lawyer characterized the new position as dumb. The Biotechnology Industry Organization warned that such a policy, if carried out, would “undermine U.S. global leadership and investment in the life sciences.”

No wonder they hate it.  Stocks promptly fell.

Patenting is patently unfair.

The justice department’s brief helps some, but needs to address more of the issues noted above.

I’ve been doing some writing about alcohol labeling lately and was surprised to see a Joose flavored malt beverage (translation: beer) in a local Duane-Reade drug store.  Its label said it contained caffeine, taurine, and ginseng, ingredients not usually found  in beer.

But what really surprised me was the alcohol content–9.9%–displayed in three places on the label.

This is twice the alcohol content of many beers.  Alcohol beverages are regulated by the Treasury Department which does not require alcohol contents to be listed on beer labels.  So this was a voluntary disclosure that could have only one purpose: marketing the higher alcohol content.

So I have been following the current furor about the effects of the Four Loko brand on the health and welfare of college drinkers.  Four Loko, in case you missed it, has sent students at several colleges to emergency rooms with extreme alcohol toxicity.

The New York Times quoted Peter Mercer, President of Ramapo College in New Jersey, one of the places where six students drank themselves into a stupor.  One of the students had a blood alcohol level of .40, which is twice the concentration needed to stupify.  Ramapo has now banned the beverage from campus.

I do not see any socially redeeming purpose being served by these beverages….At the end of the day, they’re aimed at a young, inexperienced market for the purpose of enabling them to become rapidly intoxicated.

The Times’ Frank Bruni did a tasting experiment:

And what I quickly came to see was that if you set out to engineer a booze delivery system that is as cloying, deceptive and divorced from the usual smells, tastes and presentation of alcohol as possible, you’d be hard pressed to come up with something more impressive than Four Loko.  It’s a malt liquor in confectionary drag.

Bruni’s conclusion:

Four Loko is all stealth: spoonfuls of sugar to help the medicines go down. Until I felt a slight flush in my cheeks and subtle tingling on my scalp, I could have convinced myself that I was drinking candy. It wasn’t to my liking, but then neither are jelly beans. Spike a satchel of those with both an intoxicant and a stimulant, and Four Loko might have some fierce new competition.

None of this is news, really.  The Marin Institute, which calls itself the “Alcohol Industry Watchdog,” has been writing about the dangers of caffeinated alcohol beverages to young drinkers since the products were first released.

In its report, “Alcohol, energy drinks, and youth: a dangerous mix,” the Institute summarizes the hazards:

• The products are designed to look like non-alcoholic versions.
• Sometimes the alcoholic and non-alcoholic versions are indistinguishable except for the Nutrition Facts label on the non-alcoholic varieties.
• The effects of alcohol are masked by the sugar and caffeine.
• They are marketed to make kids drunk.

And now comes an investigative report that Four Loko did a major spin on its social media to remove all traces of evidence that the company, Phusion Products, was promoting it as a party drink.  My favorite part of this report is a conversation between the reporter and Chris Hunter, a lawyer for Four Loko.

When Hunter objected to me calling Four Loko an energy drink, I pointed out that I had read the language directly from Phusion Projects’ website. Silence followed. I read him parts of the phrasing from the now-changed company profile (“three college friends from The Ohio State University noticed the growing popularity of mixing alcoholic and energy drinks, like Red Bull and vodka, and decided to create a beverage company of their own”).

“Okay, no worries,” he answered.

I then pointed out that the language is now different on the page.

“No worries,” he said again.

So it’s not an energy drink?

“No, this is a caffeinated alcoholic beverage.”

As for caffeine, its effects when combined with alcohol are considered serious enough to merit creation of a new journal, the Journal of Caffeine Research: The International Multidisciplinary Journal of Caffeine Science. The journal will be devoting much attention to the role of caffeine in alcohol energy drinks.

Thanks to Michele Simon of the Marin Institute for alerting me to much of this.

Addition: Michele points to Phusion’s defensive posting explaining why its products are safe and acceptable.  Its comment of FDA vs TTB Treasury Department) regulation is an indication of the messy way in which alcohol beverages are regulated.  TTB regulates the labels in an exceptionally complex way, with many inconsistencies and exceptions.  FDA regulates one category of wines (less than 7% alcohol) and beers that are made from something other than malted barley.  But FDA is also responsible for food additives, no matter where they go.  So the caffeine, tauring, and ginseng in Four Loko fall under FDA authority–not that it has done anything about them yet.

In the current issue of the online Journal of the World Public Health Nutrition Association (of which I am a charter member), Carlos Monteiro, a professor at the University of São Paulo writes “The big issue is ultra-processing.”  Because his Commentary is so lengthy, I am taking the liberty of extracting pieces from it, not always in the order presented.

The most important factor now, when considering food, nutrition and public health, is not nutrients, and is not foods, so much as what is done to foodstuffs and the nutrients originally contained in them, before they are purchased and consumed. That is to say, the big issue is food processing – or, to be more precise, the nature, extent and purpose of processing, and what happens to food and to us as a result of processing.

Monteiro makes it clear that all foods and drinks are processed to some extent.  Fresh apples are washed and, sometimes, waxed.  Drinking water is filtered.  Instead, he distinguishes three types of processing, depending on their nature, extent, and purpose:

• Type 1: Unprocessed or minimally processed foods that do not change the nutritional properties of the food.
• Type 2: Processed culinary or food industry ingredients such as oils, fats, sugar and sweeteners, flours, starches, and salt.  These are depleted of nutrients and provide little beyond calories (except for salt, which has no calories).
• Type 3: Ultra-processed products that combine Type 2 ingredients (and, rarely, traces of Type 1).

The purpose of Type 3 ultra-processing is to create:

durable, accessible, convenient, attractive, ready-to-eat or ready-to-heat products. Such ultra-processed products are formulated to reduce microbial deterioration (‘long shelf life’), to be transportable for long distances, to be extremely palatable (‘high organoleptic quality’) and often to be habit-forming. Typically they are designed to be consumed anywhere – in fast-food establishments, at home in place of domestically prepared and cooked food, and while watching television, at a desk or elsewhere at work, in the street, and while driving.

Monteiro argues: “the rapid rise in consumption of ultra-processed food and drink products, especially since the 1980s, is the main dietary cause of the concurrent rapid rise in obesity and related diseases throughout the world.”

As evidence, he notes that ultra-processed products as a group are:

• Much more energy-dense than unprocessed and minimally processed foods and processed culinary ingredients taken together.
• [Contain] oils, solid fats, sugars, salt, flours, starches [that] make them excessive in total fat, saturated or trans-fats, sugar and sodium, and short of micronutrients and other bioactive compounds, and of dietary fiber.
• Relatively or even absolutely cheaper to manufacture, and sometimes – not always – relatively cheaper to buy.
• Often manufactured in increasingly supersized packages and portions at discounted prices with no loss to the manufacturer.
• Available in ‘convenience’ stores and other outlets often open late or even 24/7, and vended in machines placed in streets, gas stations, hospitals, schools and many other locations.
• The main business of transnational and big national catering chains, whose outlets are also often open until late at night, and whose products are designed to be consumed also in the street, while working or driving, or watching television.
• Promoted by lightly regulated or practically unregulated advertising that identifies fast and convenience food, soft drinks and other ultra-processed products as a necessary and integral part of the good life, and even, when the products are ‘fortified’ with micronutrients, as essential to the growth, health and well-being of children.

Overall, he says:

Their high energy density, hyper-palatability, their marketing in large and super-sizes, and aggressive and sophisticated advertising, all undermine the normal processes of appetite control, cause over-consumption, and therefore cause obesity, and diseases associated with obesity.

His groups the main points of his argument in three theses:

• Diets mainly made up from combinations of processed ingredients and unprocessed and minimally processed foods, are superior to diets including substantial amounts of ultra-processed products.
• Almost all types of ultra-processed product, including those advertised as ‘light’, ‘premium’, supplemented, ‘fortified’, or healthy in other ways, are intrinsically unhealthy.
• Significant improvement and maintenance of public health always requires the use of law. The swamping of food systems by ultra-processed products can be controlled and prevented only by statutory regulation.

Lest there be any confusion about the significance of this proposal for public health nutrition, an accompanying editorial (unsigned but assumed to be by Geoffrey Cannon) poses a serious challenge: “Nutrition science: time to start again.”

This editorial is about the significance of food processing, and in particular of ‘ultra-processed’ food and drink products. It is also about the nature, purpose, scope and value of nutrition science, which as conventionally taught and practiced, is now widely perceived to have run into the buffers or, to change metaphor, to have painted itself into a corner.

The editorial argues that nutritionists’ focus on nutrients, rather than foods, has led to the assumption that if foods contain the same nutrients, they are the same—even though it is never possible to replicate the nutritional content of foods because too much about their chemical composition is still unknown.

This notion is an exquisite combination of stupidity and arrogance, or else of intelligence and cunning. For a start, similar results can only be of those chemical constituents that are at the time known, and actually measured.

These are important ideas, well worth consideration and debate.  I am struck by their relevance to the latest survey of soft drink availability in American elementary schools.  Despite the efforts of the Clinton Foundation and the voluntary actions of Coca-Cola and Pepsi-Cola, the availability of soft drinks to young school children increased from 49.% to 61% just in the year from 2006-07 to 2008-09.  Soft drinks, in Monteiro’s terms, are ultra-processed.  Doing something about them requires statutory regulation.

Consideration of the effects of ultra-processing might help us look at what we feed our kids in a more constructive way.  This is important work.

Addition: I should have mentioned that Monteiro’s approach is consistent with that of the people (including me) who worked with the Strategic Alliance in Oakland, CA to write Setting the Record Straight: Nutritionists and Health Professionals ” Define Healthful Food.

The Alliance is California’s network of food and activity advocates, we’ve developed a definition of healthy food that asserts that truly healthful food comes from a food system where food is produced, processed, transported, and marketed in ways that are environmentally sound, sustainable, and just.

If you agree with Setting the Record Straight, you can endorse it on the Strategic Alliance’s website.

According to FoodProductionDaily.com, a new report says that consumer concerns are driving companies to take bisphenol A (BPA) out of their packaging.  BPA, you may recall from previous posts, is an estrogen disrupting chemical in plastic containers and the linings of food cans.  Although the harm it causes is not well established, many groups have been working to get rid of it on the theory that estrogen disruption is not a good idea.

The USA Today account says

Some retailers say they’re working hard to go BPA-free. Last year, only 7% of companies had timeliness to phase out BPA. This year, 32% have set timelines, the report says. Most large baby bottle makers already have stopped using BPA.

It quotes the author of the report as saying that consumers are “voting with their shopping carts….This is definitely a story about consumers having a lot of power with the big companies….Investors and shareholders have a big impact, as well.”

In other words, getting BPA out of plastics is good for business.

And sometimes, consumer choice really works.

In a online press release yesterday, the Grocery Manufacturing Association (GMA) and Food Marketing Institute (FMI) announced a new labeling initiative for their member companies:

America’s leading food and beverage manufacturers and retailers joined forces today in the fight against obesity and announced their commitment to develop a new front-of-package nutrition labeling system. The unprecedented consumer initiative will make it easier for busy consumers to make informed choices when they shop….America’s food and beverage manufacturers and retailers have agreed to support the change to their product labels with a $50 million consumer education campaign.

Forget the consumer-friendly rhetoric.

There is only one explanation for this move: heading off the FDA’s Front-of-Package (FOP) labeling initiatives.

Only two weeks ago, the Institute of Medicine released its first FDA-sponsored FOP labeling report.  The IOM committee recommended that FOP symbols only mention calories, sodium, trans fat, and saturated fat.  This led William Neuman of the New York Times to summarize its approach as: “Tell us how your products are bad for us.”

GMA and FMI would much rather label their products with all the things that are good about them, like added vitamins, omega-3s, and fiber.  If they must do negatives, they prefer “no trans fat” or “no cholesterol.”

What they especially do not want the FDA to impose is “traffic-light” symbols.  These U.K. symbols, you may recall from previous posts, discourage consumers from buying anything labeled in red, and were so strongly opposed by the food industry that they caused the undoing of the British Food Standards Agency.

GMA and FMI, no doubt, are hoping the same thing will happen to our FDA.

In today’s New York Times, Mr. Neuman quotes a GMA representative:

Mary Sophos, an executive vice president for the group, said the label would not characterize a food’s overall nutritional qualities as good or bad — like the traffic signal label in Great Britain that displays a red circle for less healthy nutrient levels and a green circle for healthier levels.

“We’re not going to get into interpreting elements of the food,” Ms. Sophos said.

This move is all the evidence the FDA needs for mandatory FOP labels.   GMA and FMI have just demonstrated that the food industry will not willingly label its processed foods in ways that help the public make healthier food choices.

Let’s hope the GMA/FMI scheme goes the way of the ill-fated, not-so-Smart Choices program.

FDA: you should be outraged by this move.  Say so!

Every now and then, Kerry Trueman tosses a “Let’s Ask Marion” question at me, and these are invariably a challenge.  Today’s: “Is stealth the way to healthy eating for kids?”

(With a click of her mouse, Eating Liberally’s 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):

KT: NPR’s Morning Edition ran a story today about “stealth” strategies that some schools and researchers are employing to get kids to eat healthier foods–for example, by sneaking pureed vegetables into a line of cafeteria foods being marketed under the name “Hidden Healthies.”

But doesn’t this approach reinforce the perception kids have that vegetables taste lousy? David Just, co-director of the Cornell Center for Behavioral Economics in Child Nutrition, pointed out that “Taste is a suggestion more than anything else. If you think something is going to taste really good — if you’ve been told by others that it tastes good — you build that into your head when you eat it.”

A researcher who’s experimenting with enhanced cafeteria lighting to make healthy foods appear more appealing to kids told NPR, “We got to figure out some things so that the last thing in the world they know is that we’re trying to get them to eat well.”

We know that kids (and plenty of grown-ups!) turn up their noses at foods that are presented to them as healthy. Kids have also come to expect that their preferences should be catered to, which is why carrot and apple growers have begun packaging their products to resemble snack foods like potato chips.

In short, veggies have a serious pr problem. Do these strategies strike you as a good solution?

Dr. Nestle: Oh no! Not stealth again. I thought we were done with that in 2007 when we had to live through the plagiarism fight between Jessica Seinfeld’s Deceptively Delicious, and Missy Lapine’s Sneaky Chef, both of them pushing stealth strategies.

I remember being given hamburgers as a kid and how betrayed and condescended to I felt when they turned out to contain ground spinach—a vegetable I detested at the time but now think is terrific, especially when young and tender. Kids’ tastes do change, and should be encouraged in an honest way.

That is why I am so intrigued by the approach shown in the New York Times “Lunch Line Redesign” op-ed last week. Check out the way that Brian Wansink and his colleagues suggest redesigning lunch lines. These do nothing draconian or deceitful. Instead, they gently nudge kids to made healthier choices on their own.

How? By doing such things as putting salads near the cash register, using bowls instead of trays, and describing the foods more attractively. My favorite of these strategies is simply to ask the kids whether they would like a salad. All of these increase kids’ selection of healthier food choices.

But will the kids eat the foods? Of course they will. From my observations of school meals, the single most important indicator of whether the kids are eating healthfully is if the school food service people know their names and talk to them about what they are choosing. It helps a lot if the food tastes good, but kids respond to adults who care about what they eat.

When I hear parents say that the kids won’t eat anything healthy, I suspect that I’m talking to someone who isn’t willing to take adult responsibility for what kids eat and finds it easier to be stealthy than direct. Kids need to trust the adults in their lives and food should be used to instill trust, not destroy it.

This exchange appeared on the Huffington Post website on October 25 and elicited a response from Missy Chase Lapine, the original Sneaky Chef herself (reproduced with permission):

Dear Dr. Nestle,

I understand you had a bad experience with sneaky spinach as a child, but I respectfully disagree with your position that sneaking healthy food in kids’ meals is a bad idea. As the author of the Sneaky Chef cookbooks, I receive thousands of testimonials from parents to the contrary. They are thrilled that their kids are finally eating veggies–and most of the kids are in on the secret and love it.

The reason sneaking is needed is highlighted in the recent CDC report showing that all of the efforts and billions of dollars spent on nutrition education has failed. Everyone now knows that they SHOULD eat their veggies. The problem is HOW to get them to do it. Teaching alone is conclusively insufficient–we need to sneak and teach. They work hand in hand.

Sneaking veggies gives people an easy way to experience the benefits of eating veggies, yet lets them enjoy their favorite foods, like spaghetti and meatballs–-only now they’re loaded with spinach, broccoli, peas, wheat germ and cauliflower. This direct experience opens the door to learning.

Parents from around the world write me letters like this:

“Every time I use one of your healthy (and sneaky) tips or wonderful recipes, I just want to scream with joy because they eat it.” –Mindi B., TX

The bottom line is: combining “sneaking and teaching” works for everyone.

Respectfully,
Missy Chase Lapine, The Sneaky Chef

Not exactly everyone, if I may respectfully submit.  But I’m glad she wrote.  OK, readers: opinions, please!

I’ve been saying for ages that the sugar composition of high fructose corn syrup (HFCS) is no different from that of table sugar (sucrose).

Oops.  A new study in the journal, Obesity, actually measured the amounts and kinds of sugars in 23 kinds of HFCS-sweetened drinks.

The findings are summarized in a fact sheet:

• The sugar content varied widely from amounts stated on labels.  Some drinks had 15% less sugar than labeled, but others had as much as 30% more.
• On average, the drinks had 18% more fructose than expected.
• Several brands of sodas seemed to be made with HFCS that is 65% fructose, not 55%.
• The average amount of fructose in the drinks was 59%.

The press release points out one other finding.  You know how everyone thinks Mexican Coca-Cola is so much more delicious than American Coke because it is made with table sugar (sucrose), not HFCS?  Oops again.  The investigators could not find any sucrose in the Coke, but did find plenty of glucose and fructose.  This suggests that Mexican Coke is also made with HFCS (or it could also mean that the sucrose had been split into its constituent glucose and fructose).

To review the biochemistry: sucrose is a double sugar of glucose and fructose bonded together.  HFCS is glucose and fructose, separated.  The sucrose bond is quickly split in the intestine and its glucose and fructose are the same as those in HFCS.

The metabolic problems that result from sugar intake are mostly due to the fructose content.  Less is better for health.  More is better for the soft drink industry, however.  Fructose is sweeter than either glucose or sucrose, and sweet is what sells sodas.

At most, HFCS is supposed to be 55% fructose, as compared to the 50% in table sugar.  Most foods and drinks are supposed to be  using HFCS that is 42% fructose.  A percentage of 55 is not much different biologically than 50, which is why the assumption has been that there is no biologically meaningful difference between HFCS and table sugar.   This study, if confirmed, means that this supposition may need some rethinking.

The study names the beverages that contain 65% fructose: Coke, Pepsi, Sprite. It identifies Dr. Pepper, Gatorade, and Arizona Ice Tea as containing close to 60% fructose.

If, in fact, the percentage of fructose is higher than advertised, it’s another good reason to avoid sugar-sweetened beverages.

Addition and possible caution:  I’ve now heard separately from two experts on measuring sugars in beverages who point out serious flaws in the methods used in this study:

• The results are based on one beverage sample, analyzed once.   Analytical methods invariably produce ranges of values and require multiple samples and analyses.
• Measuring sugars in beverages is technically challenging and there are several possible methods, some of which give more accurate results than others.  Although the paper says the investigators used standard methods, it does not specify which.
• The methods used did not seem to detect the small starches or maltose that are always present in HFCS.  If the methods “read” the little starches as fructose, the percentage could easily have been 59 rather than 55.
• The drinks that contained 65% fructose were bottled drinks, and that is a concern.  The fountain drinks are mixed by the company–McDonald’s or Burger King–and could have been made too concentrated by whoever did the mixing.
• The failure to find sucrose in Mexican Coca-Cola could be two to two reasons: the Coke is old and the sucrose “inverted” (split into glucose and fructose), or the company used HFCS instead of sucrose.

The bottom line remains the same: it’s best not to eat too much sugar or any kind.

Addition, October 27: Cara Wilking, an attorney with the Public Health Advocacy Institute in Boston, notes that this study raises the possibility that HFCS violates federal prohibitions against:

• False and misleading food labeling
• Food adulteration
• False and misleading advertising

It will be interesting to follow how the lawyers deal with these issues.