Currently browsing posts about: CSPI(Center for Science in the Public Interest)

I’ve been away for the last couple of weeks, and am just getting to accumulated mail.  I was surprised to find a letter dated June 18 from Angela Wilson, an attorney at Parks IP Law, a limited liability firm specializing in intellectual property rights.

In her letter, which you can read here in its entirety, Ms. Wilson writes:

We represent Energy Brands Inc., a wholly-owned subsidiary of the Coca-Cola company.  Recently, we noticed that Food Politics used the term “vitamin Water” in the article, “New York Plans to Ban Sale of Big Sizes of Sugary Drinks,” which appeared in the June 4, 2012 edition of your publication (see attached).

I’m confused.  The article attached to the letter is my post, “Weight of the Nation: the new “Hunger in America”?, a June 4 reprint of a column I wrote for the San Francisco Chronicle.  It does not refer to “vitamin Water.”

Foodpolitics.com contains an excellent search engine.  I searched my posts for “New York Plans to Ban….”   No post with that title exists.   I looked at posts about Mayor Bloomberg’s proposed ban on large sodas.  My post about the soda initiative contains plenty of references to Coca-Cola, but says nothing about “vitamin Water.”

A search for “vitamin water” turns up 17 posts, the most recent in 2011.  The most relevant is an account of a class-action suit filed against Coca-Cola by the Center for Science in the Public Interest arguing that “Vitamin Water makes sugary drinks that promote obesity but positions these products as healthful because they contain added vitamins and herbs.”

Never mind.  Let’s focus on the matter at hand.  Attorney Wilson’s letter continues:

It appears that the article may have been referring to our client’s VITAMINWATER® brand, but because Food Politics used the phrase “Vitamin Water,” that may not be clear to your readers.  Accordingly, we write to request that your writers [sic] refer to our client’s trademark properly in future stories. [I used sic because I’m the only writer on this site.]

Her letter suggests that I follow some simple guidelines when referring to her client’s trademark.  You might enjoy reading the entire list for yourself, but here’s a short summary:

• DO distinguish our client’s VITAMINWATER® trademark as one word (without a space in the middle) and in all capitals or italics
• DO add the registration symbol (“®”)
• DO follow all references to our client’s trademark with the words “enhanced water”
• DON’T use terms such as “vitaminwater,” “vitamin water,” or “vitamin waters”

Ms. Wilson’s letter concludes: “When you use our client’s name correctly, you help protect the integrity of their [sic] innovative enhanced water product.”

[Why sic?  I’m a professor and can’t help this sort of thing.  “Client” is singular; “their” is plural.  Nouns and pronouns should agree.]

I can only imagine the enormous fees that Parks IP Law and Angela Wilson must be getting from Coca-Cola to get me to refer more precisely to its trademarks.

I’ll try.  I promise.

Sometimes when I hear rumors that I can’t corroborate, I keep fingers crossed that they aren’t true.  Here’s one.

Rumors say that the White House has caved in to food, beverage and advertising lobbying groups on the nutrition standards for food marketing to children developed by the Interagency Working Group (IWG).

Recall: the IWG’s members—the FDA, FTC, USDA, and CDC–produced recommendations for nutrition standards for marketing foods to kids (see previous posts).

The food and beverage industries think that if the standards are adopted, they will have to abide by them, thereby losing sales.  They do not want restrictions on how, when, and where they advertise their products to kids.

Rumors say that the FTC—the agency that regulates food advertising—is being pressed by the White House to back off.

Rumors say the FTC is withdrawing the proposedstandards for teens except for some in-school marketing, and that the FTC’s explanation is that  “to be successful in this endeavor food companies must be given leeway to shape an approach that will promote children’s health, without being overly burdensome on industry….”

Could the House Energy and Commerce Committee’s  October 12 hearings on the standards have anything to do wth this?   Or the tough memo prepared by committee staff in preparation for the hearing?  The staff memo raises highly critical questions about the FTC and the IWG report.

The proposed standards, please recall, are voluntary.  And I didn’t think they were all that restrictive (see previous post).

But if the rumors are true, even this administration can’t do anything to limit  food marketing to kids and we are right back where we were in 1979, the last time the FTC tried to do so.

Please say it isn’t so.

Addition 1: FTC has now posted its prepared testimony: “As a result of the many comments we received from various stakeholders…the Working Group is in the midst of making significant revisions to its preliminary proposal. The anticipated revisions go a long way to address industry’s concerns.”

It gets worse:

The Commission staff believes that this approach resolves many of the flashpoints that generated strongest industry concern.

For instance, FTC staff has determined that, with the exception of certain in-school marketing activities, it is not necessary to encompass adolescents ages 12 to 17 within the scope of covered marketing….In addition, the FTC staff believes that philanthropic activities, charitable events, community programs, entertainment and sporting events, and theme parks are, for the most part, directed to families or the general community and do not warrant inclusion with more specifically child-directed marketing.

Moreover, it would be counterproductive to discourage food company sponsorship of these activities to the extent that many benefit children’s health by promoting physical activity.

Finally, the Commission staff does not contemplate recommending that food companies change the trade dress elements of their packaging or remove brand equity characters from food products that don’t meet nutrition recommendations.

Addition 2:  Margo Wootan of CSPI provides a copy of her written testimony for the IWG .

Addition 3: Here’s the written statement of Dale Kunkel of the University of Arizona.

Addition 4, October 11:  Adweek headlines its story on this fiasco, “Ronald McDonald, Toucan Sam to get pardon from feds?”

I’ve just gotten an urgent plea from Margo Wootan at the Center for Science in the Public Interest (CSPI).

Please encourage everyone to write to President Obama, First Lady Michelle Obama, and federal agencies to support the nutrition standards for marketing foods to kids.

As I’ve discussed previously, these were created jointly by the Interagency Working Group (IWG) of four federal agencies—CDC, FDA, FTC, and USDA.

Under intense pressure from the food and entertainment industries and their friends in Congress, the IWG’s proposed guidelines—voluntary, no less—are in danger of being withdrawn.

Doing that might help corporate health but would do nothing for public health.

CSPI organized 75 researchers (including me) to send a letter to the President urging support of the voluntary guidelines and expressing dismay at the campaign of disinformation aimed at getting them withdrawn.

Junk-food advertisers, in the guise of the Sensible Food Policy Coalition, have attacked the voluntary guidelines as an assault on the First Amendment, a point debunked by top Constitutional experts, and claimed that adopting the voluntary guidelines would result in job losses, based on a flimsy industry “study.”

….It would be a real setback for children’s health if the Administration backed down on strong guidelines for food marketing to children, especially given the transparently specious arguments of junk-food advertisers….Denying the science on food marketing and childhood obesity is like denying the science on global warming or evolution.

But the food industry is dug in on this one.  For example, a reader sent me this letter from Tom Forsythe, Vice President, Corporate Communications, General Mills (excerpts follow with my comments in brackets):

Your email notes that we have lobbied against the Interagency Working Group (IWG) proposal.  That is correct.  We have serious concerns about the IWG proposal.

Our most advertised product is cereal – and we stand behind it.   Cereal is one of the healthiest breakfast choices you can make….If it is a General Mills cereal, it will also be a good or excellent source of whole grains.

Childhood obesity is a serious issue – and General Mills wants to be part of the solution.  But if the issue is obesity, cereal should perhaps be advertised more, not less.

…You can be assured than food and beverage companies have studied every letter, comma and period in the proposal.  We know what it says, and what it does not.

For example, we know that 88 of the 100 most commonly consumed foods and beverages could not be marketed under the IWG guidelines.  The list of “banned” items under the guidelines would include essentially all cereals, salads, whole wheat bread, yogurt, canned vegetables, and a host of other items universally recognized as healthy [Note: I’m not at all sure this is true–MN].

Despite the characterizations used to advance them, the IWG guidelines would not be voluntary, in our view.  The IWG guidelines are advanced by two of the agencies most responsible for regulating the food industry, as well as the agency most responsible for regulating advertising.  Ignoring their “voluntary guidance” would not be an option for most companies.

Regulation has already been threatened (even demanded) should companies choose not to comply – and litigation would inevitably follow.

The IWG guidelines also conflict with most existing government programs and definitions relative to food.  For example, many products that meet the U.S. Food and Drug Administration’s current definition of “healthy” could not be advertised under the IWG guidelines [It would be interesting to see examples].

Many products included in the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program fail the IWG standards, as do most products encouraged and subsidized under the USDA’s Women, Infants and Children Feeding Program (WIC) [If so, this is a sad commentary on what we encourage low-income mothers and children to eat].

Finally, your email suggests companies should focus on providing feedback via public comment.  We agree.  We have reviewed every detail of the IWG proposal – and we remain opposed, as our public comment explains.

My interpretation: if food companies are this upset, the guidelines must be pretty good.

Companies have the right to sell whatever they like.  But they should not have the right to market it as healthy or to kids.

Tell the IWG you support their guidelines.  Tell the White House to protect the guidelines.  Now, please.

On July 30, Center for Science in the Public Interest (CSPI)—in collaboration with representatives of a long list of distinguished health and consumer organizations (see below)–wrote Martha Coven of the Domestic Policy Council and Ezekiel Emanuel of the Office of Management and Budget urging them to encourage the FDA to take more vigorous enforcement action against misleading health claims on food packages.

Their petition responds to comments by the FDA’s Michael Taylor (discussed in a previous post) in a July 19 article for the Atlantic Food Channel, titled “How the FDA is picking its food battles.”   In explaining why the FDA is backing off from doing anything about unsubstantiated health claims on food products, Taylor said:

FDA must pick its battles—and set its priorities—in a way that will best benefit the public health….We have no pre-market review authority over such claims, and, under prevailing legal doctrines concerning “commercial free speech,” the evidentiary requirements placed on FDA to prove that such claims are misleading are significant and costly to meet. Moreover, meeting them requires tapping the same team of nutritionists, labeling experts, and lawyers who are working on our other nutrition initiatives.

We’re also conscious of the cleverness of marketing folks, who, once we prove today’s claim is misleading, can readily come up with another one tomorrow. Going after them one-by-one with the legal and resource restraints we work under is a little like playing Whac-a-Mole, with one hand tied behind your back.

So, we must make choices….especially considering the other high-priority nutrition and food safety initiatives that compete for FDA’s finite resources. We’ll consider all possibilities, but, in the meantime, we call on the food industry to exercise restraint, and we welcome the scrutiny CSPI and the media give to this issue.

Clearly, I was not the only one dismayed by this statement, which appears to be an open invitation to food companies to do whatever they like with health claims.  Indeed, Taylor’s statement reminded me of the Bush Administration’s FDA which, in 2003, announced that it had lost so many first amendment  health claims cases in court that it no longer intended to fight them.

But Taylor’s statement is also an open invitation to food advocates to get busy, as CSPI and the other signers of this letter have now done. The letter, dated July 30, 2010, is a follow up to a June 11 meeting on FDA/USDA Food Labeling Reform Efforts:

At Zeke’s suggestion, we are attaching a Priority List/Timetable Chart that provides an overview of the recommendations we made at our meeting and delineates how those recommendations intersect. As we discussed:

• We commend the Food and Drug Administration (FDA) for increasing the number of enforcement actions it has taken against misleading food labeling, and we urge the agency to increase those efforts. We also commend the FDA’s initiative to develop a system for disclosing key nutrition information on the fronts of food labels. However, we emphasize that the existing Nutrition Facts panel must also be modernized. In particular, nutrition information must be based on up-to-date serving sizes, a Daily Value for added sugars must be established and added to the existing Nutrition Facts panel, and “Calories per serving” must be displayed more prominently. Revisions to the Nutrition Facts panel and the development of a front-of-pack disclosure system are closely intertwined and should be developed concurrently.

• We urge the Domestic Policy Council to ask the FDA to ensure that any front-of-pack labeling scheme is not undercut by deceptive health-related claims on the fronts of food packages. Such claims, if unabated, will divert attention from any front-of-pack scheme the FDA develops. Since our meeting, the Federal Trade Commission (FTC) issued a consent order prohibiting claims that a food product could strengthen immunity because the claim lacked sufficient clinical evidence. Such claims are called “structure/function” claims by the FDA. The FDA should take a consistent position regarding the use of those claims. In addition, the FDA should address claims exaggerating the presence of healthy ingredients stressed in the U.S. Dietary Guidelines such as whole grains, fruits, and vegetables. For example, failure to remedy claims such as “Made with real fruit” on products that contain little fruit will detract from a declaration of sugar content that the FDA may specify in a front-of-pack labeling scheme, thus frustrating the Administration’s attempts to reduce childhood obesity.

• One way to remedy exaggerated claims for healthy ingredients (other than prohibiting them completely) is for the FDA to revise the ingredient list to require that the percentage of key ingredients such as fruit be disclosed in a clear, easily readable manner. FDA could also require that ingredient lists group all sources of added sugars to provide consumers with a clearer indication of the amount of added sugar in a product. The First Lady has recognized that ingredient labeling reform is an integral part of the Administration’s broader efforts to combat childhood obesity. The U.S. Department of Agriculture (USDA) is already working on new formats for ingredient labeling. We support those efforts and request the Council to encourage the FDA to follow USDA’s approach.

• In regard to a timetable, the recommendations we have made are closely intertwined with efforts already ongoing at the FDA. In some cases, they are necessary to ensure that those ongoing efforts by FDA succeed. We, therefore, urge the Council to recommend that the FDA expand its food labeling reform initiatives to include these additional issues and address them concurrently. Additional efforts that complement existing FDA labeling reform initiatives should commence as soon as the first set of initiatives is published in the Federal Register. All initiatives should be finalized by October 2012. This request is based on the fact that the FDA implemented the Nutrition Labeling and Education Act of 1990 in two years. The reform efforts we request are more limited than the requirements of the 1990 Act, and the FDA should be able to accomplish them by 2012 based on the agency’s previous performance on such matters.

• Rep. DeLauro, Chair of the House Agriculture Appropriations Subcommittee, asked the FDA how many FTEs the agency would need to issue regulations to revise the Nutrition Facts panel, increase the prominence of calories per serving, require caffeine labeling, and establish a daily value for added sugars, as well as other issues. The FDA stated that approximately “10-12” additional FTE’s would be necessary to address such concerns. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations for 2005: Hearings Before a Subcomm. of the House Comm. on Appropriations, 108th Cong. 2d Sess. 323 (2004). While the FDA’s response at the time involved some issues not covered by our current requests, we believe that the FDA’s estimate is still reasonable, and we urge the Council and the Office of Management and Budget to work with the FDA to ensure that the FDA devotes additional resources to this effort.

We welcome the opportunity to assist the Administration and look forward to continuing our dialogue.

The letter is signed by Bruce Silverglade, Director of Legal Affairs, CSPI and representatives of Consumers Union, American Public Health Association, American Medical Association,  American Cancer Society Cancer Action Network, American Heart Association,  American Society of Bariatric Physicians, American Diabetes Association,  American Dietetic Association, Alliance for Retired Americans, Society for Nutrition Education, American Institute for Cancer Research, and Directors of Health Promotion and Education.

Let’s hope the FDA pays attention and gets busy on these issues.

Center for Science in the Public Interest (CSPI) has written a letter to McDonald’s threatening to sue if the company refuses to remove the toys from its Happy Meals.

This comes at a time of rapidly accumulating evidence for the effectiveness of toys, cartoons, and the like in encouraging even very young children to pester their parents for products, to prefer such products and to believe that branded products taste better.

Here is the press release announcing this action.  And here is CSPI director Michael Jacobson’s statement about it.

McDonald’s has 30 days to respond.  Can’t wait to see what it says.

I’m late in getting to the Center for Science in the Public Interest’s report on food companies’ policies on marketing to children.  The report is in the form of a report card.  Most companies get very bad grades.  Mars gets the best (a B+) mainly because it has a policy.  Most don’t.

The report says nothing about whether the policies are working.  Based on past experience, I’d guess they are not.  But don’t they look great on paper?

Here’s the Chicago Tribune’s take on this.

I received this note yesterday from Michael Jacobson, director of the Center for Science in the Public Interest, about his latest column in The Huffington Post:

How would you feel if you had to pay $8.50 a gallon for gasoline?

Then why on Earth would you pay that much for water and high-fructose corn syrup?

That’s how much Coke costs in those new 7.5-ounce, 90-calorie cans.  Calorie-counters may appreciate the small size (90 calories) but dollar-counters beware:  We did a little math and it turns out that Coke in the new can costs between 50- and 140-percent more than Coke in the old 12-ounce cans.  Basically, Coke is charging two or three cents more per ounce for Coke in a smaller can—and this from a company that throws temper tantrums when lawmakers propose a one-cent-per-ounce tax on soda!

I once asked a group of retailing executives why the cost of smaller size containers was so high (surely the containers don’t cost that much.  They said: “if customers want smaller portions they ought to be willing to pay for them.”  Oh.

On November 13, the FDA announced indefinite postponement of rules requiring raw oysters from the Gulf of Mexico to undergo postharvest processing to destroy their content of Vibrio vulnificus, a particularly nasty “flesh-eating” bacterium.  According to accounts in the New York Times and in industry newsletters,  the FDA caved under pressure from the oyster industry and members of Congress representing oyster-harvesting regions in the Gulf.

The FDA has been trying for years to get the oyster industry to clean up its act and use post-harvest technologies to sterilize oysters in order to prevent the 15 or so deaths they cause every year.  The technologies include quick freezing, frozen storage, high hydrostatic pressure, mild heat, and low dose gamma irradiation.  When used, the methods reduce bacteria to undectable levels and deaths from Vibrio vulnificus infections to zero.  As the FDA puts it, “seldom is the evidence on a food safety problem and solution so unambiguous.”

The FDA took action on October 16.  It wrote a letter to the industry announcing the new rules.  It would expect oyster producers to use the techniques, especially on oysters harvested in summer months when bacteria levels are higher.  It also issued a background paper on why the techniques are needed, a fact sheet on oyster hazards, and a Q and A on the new policy.

On October 17, FDA official Michael Taylor gave a speech to the oyster industry outlining the policy.

Oops.  The oyster industry did not take well to the idea and went into organized action.

Now, the proposed rules are history.  As the FDA explains:

Since making its initial announcement, the FDA has heard from Gulf Coast oyster harvesters, state officials, and elected representatives from across the region about the feasibility of implementing post-harvest processing or other equivalent controls by the summer of 2011.  These are legitimate concerns.

It is clear to the FDA from our discussions to date that there is a need to further examine both the process and timing for large and small oyster harvesters to gain access to processing facilities or equivalent controls in order to address this important public health goal.  Therefore, before proceeding, we will conduct an independent study to assess how post-harvest processing or other equivalent controls can be feasibly implemented in the Gulf Coast in the fastest, safest and most economical way.

My interpretation: 15 or more preventable deaths a year, every year, from oyster Vibrio must not be enough to elicit industry responsibility or FDA action.  That the FDA was forced to back down so quickly is not reassuring about this administration’s commitment to food safety.  Make no mistake.  This is a major setback to developing a strong food safety system.

One of the ironies here is that the FDA’s approach to oyster safety mirrored the approach taken by the very same Michael Taylor when he worked for the USDA in the mid-1990s.  Then, the administration backed him up on requiring science-based food safety procedures for meat and poulty producers.  This time, it looks like the administration pulled the rug out from under him and forced the FDA to back down.

Note: Thanks to Mike Taylor, safety rules are in place for meat and poultry.  Unfortunately, the current USDA isn’t enforcing them.  I will have more to say on that point in tomorrow’s post.

Another note: Center for Science in the Public Interest, which has been pushing for oyster safety for years, has organized a protest campaign.  Sign up here.