Currently browsing posts about: FTC (Federal Trade Commission)

My monthly, first Sunday column in the San Francisco Chronicle:

Q: I still don’t get it. Why would a city government think that a food regulation would promote health when any one of them is so easy to evade?

A: Quick answer: because they work.

As I explained in my July discussion of Richmond’s proposed soda tax, regulations make it easier for people to eat healthfully without having to think about it. They make the default choice the healthy choice. Most people choose the default, no matter what it is.

Telling people cigarettes cause cancer hardly ever got anyone to stop. But regulations did. Taxing cigarettes, banning advertising, setting age limits for purchases, and restricting smoking in airplanes, workplaces, bars and restaurants made it easier for smokers to stop.

Economists say, obesity and its consequences cost our society $190 billion annually in health care and lost productivity, so health officials increasingly want to find equally effective strategies to discourage people from over-consuming sugary drinks and fast food.

Research backs up regulatory approaches. We know what makes us overeat: billions of dollars in advertising messages, food sold everywhere – in gas stations, vending machines, libraries and stores that sell clothing, books, office supplies, cosmetics and drugs – and huge portions of food at bargain prices.

Research also shows what sells food to kids: cartoons, celebrities, commercials on their favorite television programs, and toys in Happy Meals. This kind of marketing induces kids to want the products, pester their parents for them, and throw tantrums if parents say no. Marketing makes kids think they are supposed to eat advertised foods, and so undermines parental authority.

Public health officials look for ways to intervene, given their particular legislated mandates and authority. But much as they might like to, they can’t do much about marketing to children. Food and beverage companies invoke the First Amendment to protect their “right” to market junk foods to kids. They lobby Congress on this issue so effectively that they even managed to block the Federal Trade Commission‘s proposed nonbinding, voluntary nutrition standards for marketing food to kids.

Short of marketing restrictions, city officials are trying other options. They pass laws to require menu labeling for fast food, ban trans fats, prohibit toys in fast-food kids’ meals and restrict junk foods sold in schools. They propose taxes on sodas and caps on soda sizes.

Research demonstrating the value of regulatory approaches is now pouring in.

Studies of the effects of menu labeling show that not everyone pays attention, but those who do are more likely to reduce their calorie purchases. Menu labels certainly change my behavior. Do I really want a 600-calorie breakfast muffin? Not today, thanks.

New York City’s 2008 ban on use of hydrogenated oils containing trans fats means that New Yorkers get less trans fat with their fast food, even in low-income neighborhoods. Whether this reduction accounts for the recent decline in the city’s rates of heart disease remains to be demonstrated, but getting rid of trans fats certainly hasn’t hurt.

Canadian researchers report that kids are three times more likely to choose healthier meals if those meals come with a toy and the regular ones do not. When it comes to kids’ food choices, the meal with the toy is invariably the default.

A recent study in Pediatrics compared obesity rates in kids living in states with and without restrictions on the kinds of foods sold in schools. Guess what – the kids living in states where schools don’t sell junk food are not as overweight.

Circulation has just published an American Heart Association review of “evidence-based population approaches” to improving diets. It concludes that evidence supports the value of intense media campaigns, on-site educational programs in stores, subsidies for fruits and vegetables, taxes, school gardens, worksite wellness programs and restrictions on marketing to children.

The benefits of the approaches shown in these studies may appear small, but together they offer hope that current trends can be reversed.

Researchers also suggest other approaches, not yet tried. The Yale Rudd Center has just shown that color-coded food labels (“traffic lights”) encourage healthier food choices.

And Rand Corp. researchers propose initiatives like those that worked for alcoholic beverages: Limit the density of fast-food outlets, ban sales in places that are not food stores, insist that supermarkets put junk foods and sodas where they are hard to see, ban drive-through sales, restrict portion sizes and use warning labels.

These regulatory approaches are worth trying. If research continues to demonstrate their value, cities will have even more reason to use them. If the research becomes compelling enough, the federal government might need to act.

In the meantime, cities are leading the way, Richmond among them. Their initiatives are well worth trying, testing and supporting.

**Marion Nestle is the author of “Why Calories Count: From Science to Politics,” as well as “Food Politics” and “What to Eat,” among other books. She is a professor in the nutrition, food studies and public health department at New York University, and blogs at foodpolitics.com. E-mail: food@sfchronicle.com

POM Wonderful has a full-page ad in today’s New York Times (how much do these things cost?) titled “FTC v. POM: You be the judge.”  The ad includes selected quotes from the judge’s decision (see yesterday’s post) and refers readers to its wonderfully named website, pomtruth.com, where you can see the quotes and the ads for yourself.

I couldn’t help doing some checking.

The POM ad quotes from Chief Administrative Law Judge’s decision:

Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer (page 282).

I turned immediately to page 282.  The sentence before the one quoted would seem to support it:

The basic research, the Pantuck Study, and the Carducci Study, relied on by Respondents [POM Wonderful], support the conclusion that pomegranate juice has a beneficial effect on prostate health.

But what follows the quotation makes it clear that although the research claims to support the effect, it really doesn’t.  Here’s what immediately follows the quotation in the same paragraph:

However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by Respondents is not adequate to substantiate claims that the POM Products treat, prevent, or reduce the risk of prostate cancer or that they are clinically proven to do do so.  Indeed, the authors of the Pantuck Study and the Carducci study each testified that their study did not conclude that POM juice treats, prevents, or reduces the risk of prostate cancer.  And, as Respondents’ expert conceded, no clinical studies, research and/or trials show definitely that the POM Products treat, prevent, or reduce the risk of prostate cancer.

I will just do one more of the quotes.  The ad says:

Competent and reliable scientific evidence shows that pomegranate juice provides a benefit to promoting erectile health and erectile function (page 198).

This is indeed on page 198 but is followed immediately by:

There is insufficient competent and reliable scientific evidence to show that pomegranate juice prevents or reduces the risk of erectile dysfunction or has been clinically proven to do so…There is insufficient competent and reliable scientific evidence to show that pomegranate juice treats erectile dysfunction in a clinical sense or has been clinically proven to do so.

Because these statements are attributed to the same expert witnesses, this must mean that while some studies show benefits, the experts do not believe that these studies (many of them sponsored by POM) are scientifically credible.

Pomegranate juice is a juice.  Fruit juices are healthy and especially delicious when fresh.  I happen to like the taste of pomegranate juice.

But does it have any special health benefits as compared to orange, grapefruit, grape, or any other fruit juice?

Would any fruit juice be likely to prevent heart disease or prostate problems on its own?

Despite POM’s out-of-context advertisement, the Administrative Law Judge did not think so, and neither do I.

Addition: I’m indebted to FoodNavigator.com for noticing some of the other ads.

The caption reads: “Natural Fruit Product with Health Promoting Characteristics–FTC Judge.”

I’ve been following the legal battles between the Federal Trade Commission (FTC) and the makers of POM juice and other pomegranate juice products with avid interest, mainly because they deal with the credibility of sponsored scientific research.

This week, an administrative law judge ruled that POM violated federal law when it deceptively advertised  its products as able to “treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.”

The judge ruled that reasonable consumers would interpret the ads as making such claims but that the company had not produced convincing evidence to support them.

The judge’s decision makes entertaining reading for someone like me who enjoys debates about whether sponsorship of scientific studies influences results and interpretation—as evidence shows they most definitely do.

POM has invested more than $35 million in research to prove that pomegranate juice has health benefits.  It has sponsored about 100 studies at 44 different institutions.  At least 70 of these studies were published in peer-reviewed journals.

It is not difficult to design research studies to give sponsors the answers they want and to make sure they are conducted well.  POM is getting the best research that money can buy.

One such study, of the effects of drinking pomegranate juice on myocardial perfusion (MP, blood flow to the heart), was conducted by Dr. Dean Ornish, who runs a preventive medicine institute in California (the quotes come from pages 268-269 of the decision).

The Ornish MP study was originally designed to last 12 months, with measurements at baseline, 3 months, and 12 months.  [The FTC] charges that the study was cut short when the three-month data came in favorably and Dr. Ornish faced cost overruns.

Dr. [Frank] Sacks [expert witness for the FTC] opined that the shortened study period and failure to report the planned duration are inconsistent with widely accepted standards for conduct of clinical trials and undermine any confidence in the findings.

Dr. Ornish testified that the Ornish MP Study was terminated after three months only because the Resnicks did not provide the funding that they had previously committed to this study….[he said the study]constitutes credible and reliable science showing that pomegranate juice lessens the risk of cardiovascular problems.

The judge found evidence on this study and many others conflicting.  He ruled that this level of disagreement about the quality of the research means that the scientific evidence is not good enough to substantiate the claims.

I was interviewed for a story in Business Week about this decision.

This makes it clear why everyone should be suspicious of the results of sponsored studies…POM-sponsored studies produce results favorable to POM.

POM’s owners have their own spin on the decision.

It says the ALJ’s ruling affirms the scientific validity behind the general health benefits of pomegranates and “completely exonerates” POM regarding its claims in broadcast or print interviews.

Let’s be clear what’s at stake here.  According to the decision document, the owners of POM control 18,000 acres of pomegranate orchards.

From September 2002 through November 2010, sales of POM juice alone totaled nearly $248 million (the supplements and other products add more).

The owners must believe that nobody will buy pomegranate juice and supplements for any reason other than health benefits.

Health claims are about marketing, not health.

Let’s hope the FTC can make the decision stick.

My monthly Food Matters (first Sunday) column in the San Francisco Chronicle takes out a crystal ball…

Q: What’s on the food politics agenda for 2012? Can we expect anything good to happen?

A: By “good,” I assume you mean actions that make our food system safer and healthier for consumers, farmers, farm workers and the planet.

Ordinarily, I am optimistic about such things. This year? Not so much. The crystal ball is cloudy, but seems to suggest:

Political leaders will avoid or postpone taking action on food issues that threaten corporate interests. Sometimes Congress acts in favor of public health, but 2012 is an election year. Expect calls for corporate freedom to take precedence over those for responsible regulations. Maybe next year.

Something will happen on the farm bill, but what? Last fall’s secret draft bill included at least some support for producing and marketing fruits and vegetables, and only minimal cuts to SNAP (food stamps). Once that process failed, Congress must now adopt that draft, start over from scratch or postpone the whole mess until after the election.

SNAP participation will increase, but so will pressure to cut benefits. With the economy depressed, wages low and unemployment high, demands on SNAP keep rising. In 2011, SNAP benefits cost $72 billion, by far the largest farm bill expenditure and a tempting target for budget cutters. While some advocates will be struggling to keep the program’s benefits intact, others will try to transform SNAP so it promotes purchases of more healthful foods. Both groups should expect strong opposition.

Childhood obesity will be the flash point for fights about limits on food marketing. The Lancet recently summarized the state of the science on successful obesity interventions: taxes on unhealthy foods and beverages, restrictions on marketing such items, traffic-light front-of-package food labels, and programs to discourage consumption of sugar-sweetened drinks and television viewing. Expect the food industry to continue to get Congress to block such measures, as it did with U.S. Department of Agriculture school nutrition standards (hence: pizza counts as a vegetable).

The Federal Trade Commission will postpone release of nutrition standards for marketing to children. Although Congress asked for such standards in the first place – and the standards are entirely voluntary – it just inserted a section in the appropriations bill requiring a cost-benefit analysis before the FTC can release them. Why does the food industry care about voluntary restrictions? Because they might work (see previous prediction).

The Food and Drug Administration will delay issuing front-of-package labeling guidelines as long as it can. The FDA asked the Institute of Medicine for advice about such labels. The institute recommended labels listing only calories, saturated and trans fat, sodium and sugars – all nutrients to avoid. Although the institute did not mention traffic-light labels, it did recommend check marks or stars, which come close. The food industry much prefers its own method, Facts Up Front, which emphasizes “good-for-you” nutrients. It is already using this system. Will the FDA try to turn the institute recommendations into regulations? Maybe later.

The FDA will (still) be playing catch-up on food safety. The FDA got through the 2011 appropriations process with an increase of about $50 million for its inspection needs. This is better than nothing but nowhere near what it needs to carry out its food safety mandates. The FDA currently inspects less than 2 percent of imported food shipments and 5 percent of domestic production facilities. The overwhelming nature of the task requires FDA to set priorities. Small producers think these priorities are misplaced. Is the FDA going after them because they are easier targets than industrial producers whose products have been responsible for some of the more deadly outbreaks? Time will tell.

On the bright side, the food movement will gather even more momentum. While the food industry digs in to fight public health regulations, the food movement will continue to attract support from those willing to promote a healthier and more sustainable food system. Watch for more young people going into farming (see Chronicle staff writer Amanda Gold’s Dec. 25 article) and more farmers’ markets, farm-to-school programs, school meal initiatives, and grassroots community efforts to implement food programs and legislate local reforms. There is plenty of hope for the future in local efforts to improve school meals, reduce childhood obesity, and make healthier food more available and affordable for all.

And on a personal note: In April, University of California Press will publish my co-authored book, “Why Calories Count: From Science to Politics.” I’m hoping it will inspire more thinking and action on how we can change our food system to one that is better for people and the planet.

Happy new year!

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?

It’s hard to believe how thoroughly Congress is in bed with the food industry but here is another example: the House has just inserted language in the Consolidated Appropriations Act of 2012  requiring the Federal Trade Commission’s Interagency Working Group (IWG) on Food Marketed to Children to conduct a cost/benefit analysis of the final recommendations in its report.

This, of course, will delay or even kill the IWG’s recommendations for voluntary nutrition standards for marketing foods to kids (see previous posts).

Get this: Section 626 of the Act says:

None of the funds made available in this Act may be used by the Federal Trade Commission to complete the draft report entitled “Interagency Working Group on Food Marketed to Children: Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts” unless the Interagency Working Group on Food Marketed to Children complies with Executive Order 13563.

And what, pray tell, is Executive Order 13563?  Agencies may:

• Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs
•  Tailor its regulations to impose the least burden on society
• Select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits
•  To the extent feasible, specify performance objectives
• Identify and assess available alternatives to direct regulation

Recall that the industry spent a reported $37 million to oppose the IWG recommendations.  Apparently, it was money well spent.

Let’s hope the Senate has sense enough to delete this section so that the FTC can put its long-delayed and already watered-down standards in place.

Additions, December 18: No such luck.  Consider this passed.  Thanks to Michele Simon for pointing out that Congress cannot legally require a cost/benefit analysis of the IWG guidelines because they are voluntary and, therefore, not regulations.  And thanks to Margo Wootan for explaining how and where to contact Congress.

This morning, the Center for Digital Democracy announced that consumer groups have filed a complaint (and see the appendices) with the Federal Trade Commission against PepsiCo.

Why?  Because of the ways PepsiCo uses digital marketing techniques to push its products to children and adolescents.

These include:

• Disguising marketing as video games, concerts, and other “immersive” experiences
• Claiming to protect teen privacy while collecting a wide range of personal information
• Using viral techniques that violate FTC guidelines

The report points to Pepsi’s Hotel 626 video game as a particularly egregious example.

Also this morning, Public Health Law & Policy released a comprehensive report on the kinds of digital marketing tactics that are now used routinely by fast food, snack food, and soft drink companies. The report identifies specific marketing campaigns from PepsiCo, McDonald’s, and others that exploit kids’ use of digital media.

I can’t wait to see what the FTC does with this.

In the meantime, here’s Michele Simon’s enlightening report on what it’s like to play Hotel 626.

And Lori Dorfman of the Berkeley Media Studies Group sends these case studies on digital marketing to kids:

• McDonald’s Avatar
• Multicultural marketing
• Coca-Cola’s digital ads
• PepsiCo/Frito Lay/Doritos—Hotel 626
• PepsiCo/Mountain Dew/Dewmocracy

Reports are coming in on the House hearings on the IWG report recommendations.  The IWG, recall from the previous post, is an Interagency Working Group of four federal agencies attempting to set nutrition standards for foods allowed to be marketed to kids.

This first report comes from Broadcasting & Cable:

The first panel of a joint hearing Wednesday on government-proposed food marketing guidelines featured government officials explaining that the principles, announced last April, are only voluntary recommendations to Congress that industry can ignore if they chose, while legislators, primarily Republicans, countering that they represent Big Brother government intruding into meal planning for families and a focus on marketing, without scientific backing, rather than focusing on more physical activity.

Republican lawmakers, it seems, want more science.  That’s always step one in undermining public health proposals: attack the science.  Subsequent steps, you may recall, include attacking critics, focusing on physical activity, and blaming personal responsibility for obesity and its consequences.

According to Healthwatch, Representative Henry Waxman (Dem-Calif)

Compared Republican defenders of unbridled food marketing to children to past champions of the tobacco industry. [He]  drew parallels between Wednesday’s hearing on proposed voluntary marketing restrictions and a 2003 hearing during which some Republicans promoted the safety of smokeless tobacco.

“I just find this an amazing hearing,” Waxman said. “The only thing I can analogize it to is after all the tobacco issues we discussed for many years, Republicans took charge and we never heard anything more about tobacco. Then, suddenly we had a hearing about tobacco.

And the hearing was about how smokeless tobacco should be encouraged as a way for smokers to give up smoking. It was geared to promoting an industry that no doubt supported financially many of the members. I wonder if this hearing is about the same subject.”

What I find most disturbing is the FTC’s backing down on the recommendations which were agreed upon by four federal agencies and voluntary.  CNN reports that David Vladeck, director of the FTC Bureau of Consumer Protection, said:

The coalition of government agencies is “in the midst of making significant revisions” to the original proposal.

Among the changes he suggested are narrowing the age group targeted and focusing on children aged 2 to 11 instead of up to age 17 and allowing marketing of the unhealthier foods at fundraisers and sporting events.

Vladeck also said that his agency would not recommend that companies change packaging or remove brand characters from food products that don’t qualify, as was originally suggested in the guidelines.

“Those elements of packaging, though appealing to children, are also elements of marketing to a broader audience and are inextricably linked to the food’s brand identity,” Vladeck said at the hearing.

This, as I keep pointing out, is about protecting corporate health at the expense of children’s health.

Sad.