Currently browsing posts about: Portion sizes

I attended the brief appeals hearing yesterday at which lawyers for the New York City Department of Health (DOH) and the American Beverage Association (ABA) presented final arguments for and against the DOH 16-ounce soda cap initiative (for recap, see previous post).

The judges challenged the DOH lawyer on jurisdiction, judicial precedents, scientific basis, efficacy, rationality, and triviality.  One said “Do you need a PhD in public health to know that sugary drinks aren’t good for you?”

Another kept referring to the initiative as a ban: “It would mean sodas cannot be sold…”

The big issues raised by ABA:

• Does DOH have jurisdiction?
• Is the cap rational?
• Does the soda cap adequately balance public health, personal liberty, and economic factors (i.e., beverage companies’ “rights” to sell as much sugar water as they can get away with)?

DOH argues that it does have jurisdiction and that there is plenty of precedent.

DOH also argues that the proposed 16-ounce cap is well supported by research and makes good sense.

I find DOH Commissioner Tom Farley entirely rational—and persuasive—when he talks about these issues.

Reporters from the Associated Press and the New York Times must have been there too.  Both noted that the judges were much tougher on the DOH attorney than on the one from the ABA.   The DOH attorney seemed to have trouble responding to questions about precedents.  Did she not read the DOH’s impressive “plenty of precedent” piece?  

Obesity—and its type 2 diabetes consequences—are problems requiring action.  I’d like to see the soda cap tried.

But despite Commissioner Farley’s optimistic statements to reporters, this hearing didn’t make the possibility sound hopeful.

And here’s CDC’s reminder of what this is all about:

Politics, they say, makes strange bedfellows.  I can understand why the New York Times would do a front-page investigative report on how soda companies engage minority groups as partners while slamming Mayor Bloomberg for overreaching with his soda cap initiative.

But can someone please explain the Daily News?   Here’s yesterday’s front page:

This was followed by two pages of “Soda plan struck down; our cups runneth over” and other gleeful responses to the judge’s soda cap decision.

But then there’s this astonishing editorial.  Explain, please.

Judge drinks the Kool-Aid

In putting Mayor Bloomberg’s soda ban on ice, Manhattan Supreme Court Justice Milton Tingling did a huge disservice to the health and welfare of hundreds of thousands of New Yorkers.

Tingling concluded that the prohibition against selling sugared beverages in containers larger than 16 ounces was both arbitrary and beyond the authority of the Board of Health, which approved the regulations.

The only thing arbitrary here was Tingling’s ruling. More, the judge was the only party who was guilty of overreaching.

At heart, he simply substituted his judgment as to sound public policy for the board’s — an action that’s beyond a judge’s proper purview.

Most amazingly, Tingling held that the board had acted rationally in voting the portion cap as one method of trying to rein in the city’s epidemic of obesity and obesity-related diseases.

He bought the indisputable premise that the board was right to draw connections among high soda consumption, obesity and diabetes, which are debilitating New Yorkers young and old.

But then the judge threw that over by stating the obvious fact that the board did not have the power to ban supersized sugar drinks everywhere, only in establishments regulated by the Health Department.

Because the public could get a 32-ounce cup at, say, a 7-Eleven, but not at restaurants, he in effect deemed the ban to be an ill-designed contraption destined to fail. But who is Milton Tingling to say that? No one.

His fundamental error was to consider the regulation from the point of view of vendors who were hoping to get out from under it.

Those covered by the ban claimed they were the victims of capriciously unequal treatment and shifted Tingling’s concern away from the pressing rationale for a regulation that would have been broadly applied.

There’s nothing arbitrary about the consequences of drinking large quantities of sodas and other overly sweetened beverages.

The correlation in certain communities among consuming soda, becoming obese and contracting related diseases are certain.

The neighborhoods with the highest obesity rates — Harlem, the South Bronx, central Brooklyn — have the largest percentages of people who are likely to drink more than one sugar-sweetened beverage each day.

All too predictably, people in low-income areas such as Bedford-Stuyvesant and East New York, Brooklyn — places where soda consumption is highest — are four times as likely to die from diabetes as residents of the more affluent upper East Side, where people generally consume far fewer sugary drinks.

No matter.

Tingling attended to the arguments of businesses looking after their own financial interests over the demands of public health — while at the same time declaring that the Board of Health is barred from taking into account the substantial economic costs generated by obesity.

Ultimately, Tingling bought into the all-or-nothing argument — the same line of thinking that killed an earlier Bloomberg proposal that would have barred people from buying sugary sodas with food stamps.

The U.S. Department of Agriculture killed that experiment, asserting that it would be unfair and unproductive to target only a limited population in such a test. So Bloomberg tried to go bigger, and Tingling shot him down.

If bringing down a serious threat is a rational goal, as Tingling wrote, then you do it as best you can, even incrementally.

A halfway measure is better than no measure and is certainly not arbitrary.

Bloomberg vows an appeal.

Here’s hoping that Tingling’s judicial superiors recognize that pursuing public health is not just rational, it’s imperative. 

Afterthought: compare this to the Times’ editorial:

There are better ways for Mr. Bloomberg to use his time and resources to combat obesity.  One is to push Gov. Andrew Cuomo and the State Legislature to impose a penny-per-ounce tax on sugary drinks…the big-drinks ban was ill conceived and poorly constructed from the start.

Late yesterday afternoon, while I was fielding international calls about the soda size cap scheduled to take effect today, state Supreme Court justice Milton A. Tingling “enjoined and permanently restrained” New York City from implementing the portion-size rule.  

First, let’s recall what the soda cap is about.

In the 1950s, a 16-ounce soda was LARGE.

 

Today, a 16-ounce soda is SMALL.

 

Never mind the effect of increasing portion size and calories on body weight.  The court, says the Tingling opinion:

Does not find the necessity to address at this point the appropriateness of the Board’s attempts to classify obesity as an epidemic or a contributing factor to chronic disease…the issue before this court is whether the Board has the authority to mandate which issues come under its jurisdiction…in this case it the Portion Cap Rule and whether the Board has the authority to promulgate same (page 10). 

He concludes that the proposed rule is: 

Fraught with arbitrary and capricious consequences… uneven enforcement even within a particular City block, much less the City as a whole…It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and …no limitations on re-fills…the Portion Cap Rule is found to be arbitrary and capricious (page 34). 

And this:

The Portion Cap Rule, if upheld, would create an administrative Leviathan…The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling than sugar sweetened beverages (page 35). 

OK, so the soda industry won this round.  How come? 

The New York Times points out that the portion size cap aroused:

the ire of the American soft-drink industry, which undertook a multimillion-dollar campaign to block it, flying banners from airplanes over Coney Island, plastering subway stations with advertisements and filing the lawsuit that led to the ruling.

The American Beverage Association issued this statement:     

The court ruling provides a sigh of relief to New Yorkers and thousands of small businesses in New York City that would have been harmed by this arbitrary and unpopular ban.  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.

The Mayor says the city will appeal.

CSPI’s Michael Jacobson notes that this is what happened with calorie labels.  Eventually, he reminds us, the city prevailed:

Many years hence, people will look back and think it was crazy for sugar drinks to ever be served in 32- and 64-ounce pails. 

My double-page op-ed in today’s New York Daily News:

Liberty from big soda: Why Bloomberg’s ‘ban’ should be only the beginning of a public health revolution

 

 

 

Barring any late legal surprises, Mayor Bloomberg’s 16-ounce cap on sugary sodas goes into effect on Tuesday, March 12. After that, restaurants, movie theaters, sports venues and food carts will not be permitted to sell extra-large portions of sugar-packed drinks.

Stay calm. This does not signal the end of democracy in America. This is not the nanny state gone out of control.

If we want Americans to be healthy, we are going to have to take actions like this – and many more – and do so soon. It’s long past time to tax sugar soda, crack down further on what gets sold in our schools, tackle abusive marketing practices, demand a redesign of labels – and extend the soda cap, no matter how controversial it may seem. This must be the beginning, not the end, of efforts toward a healthier America.

In short, we need a series of serious changes to make the healthy choice the easy choice. The soda size cap is a nudge in that direction. You will still be able to drink all the soda, and down all the sugar, that you want. The cap on soda size makes it just a tiny bit harder for you to do so.

That “tiny bit harder” is its point. If you have to order two sodas instead of one, maybe you won’t. If you have to add sugar to your coffee drink yourself, maybe you will only add one or two teaspoons instead of the 10 or more someone else put in there for you.

For a public health nutritionist like me, the soda size cap is a terrific idea. Unlike other foods, sodas are a unique target for intervention. They contain sugars – and sugar calories – but nothing else of nutritional value. They are candy in liquid form. Candy has a place in healthy diets, but a small one. So it should be for sodas.

It’s no surprise that people who drink large amounts of liquid candy have worse diets, are heavier, and have more health problems than those who do not. And it looks like the body doesn’t compute the calories from liquid sugars as accurately as it does for sugars in foods.

On top of that, big sizes make the problems worse. To state the obvious, larger portions have more calories. If an 8-ounce soft drink provides 100 calories, then a 16-ounce drink provides 200, a 32-ounce drink provides 400 and a 64-ounce drink provides 800.

But big sizes also have other effects. They induce people to eat and drink more than they would if given smaller portions. Big sizes confuse people into underestimating the number of calories consumed.

Most people eat whatever size is in front of them – the “default,” in public health-speak – and are content with that amount. So a reasonable goal of public health intervention is to change the default drink to a smaller size. Hence: Bloomberg’s 16-ounce size cap.

From my nutritionist’s perspective, a 16-ounce soda is still generous. Just one contains the equivalent of 12 packets of sugar. Just one provides 10% of the daily calorie needs of someone who typically eats 2,000 calories a day. Just one contains the upper limit of sugar intake that health officials recommend for an entire day. Once you down a 16-ounce soda, it’s best to stop right there.

You may find this hard to believe, but the original Coca-Cola was 6.5 ounces, smaller than any size available today. In the 1950s, Coke advertised its 16-ounce bottle as large enough to serve three.

Times have changed. The sizes of foods and drinks have expanded, and so have waistlines. This is no coincidence. On the basis of calories alone, larger portions are all you need to explain why Americans are putting on pounds.

City officials concerned about the health of their citizens, as those in New York most definitely are, want to do everything they can to prevent obesity and the illnesses that go with it. Their rationale is humanitarian, but also fiscal. Poor health is expensive for both individuals and society. You don’t believe that excessive weight is an issue? Just ask the military.

We can thank Big Soda – Coca-Cola, Pepsi and their trade association, the American Beverage Association – for the contribution of big sodas to weight gain. Soda companies have spent fortunes to create demand, to make drinking large amounts seem normal, to market sodas as essential for health and happiness and, these days, to fight Bloomberg’s soda cap and take the city to court over it.

Soda companies may make things you like to drink, but they are not social service agencies. Their job is to get you to buy more soda to satisfy the financial demands of investors. They are about business. They are not about fun or happiness or personal choice – and they certainly are not about health.

The soda industry may profess to care more about your well-being these days, but it ultimately will not do anything to promote health if doing so harms sales.

So-called “nanny-state” measures – like bans on driving while drunk, smoking in public places and, now, selling absurdly large sugary drinks – help to level the playing field. Such measures are about giving everyone an equal opportunity to live a safer and healthier life.

At the moment, it is up to you to make healthier choices, but that’s not easy in the face of relentless soda marketing. Governments have a responsibility to provide healthier environments for their citizens.

Here are some additional actions New York City should take, if only it were allowed to.

Close the loopholes. The city does not have jurisdiction over sales of sodas in convenience stores and supermarkets. The state does. Gov. Cuomo denied Mayor Bloomberg’s request to extend the size cap to those stores, not on principle but because he hadn’t thought about it. He should, right now. Let’s keep all sugary drinks to 16 ounces or less.

Fix the price differential. A 7.5-ounce can of soda costs twice as much per ounce as a two-liter bottle, and you can’t buy just one; it comes in an 8-pack. Price determines sales. If a 16-ounce soda costs a dollar, a 32-ounce soda should cost two dollars.

Tax sodas. Most people wouldn’t dream of eating candy all day, but soda companies have made it seem normal to drink sodas from morning to night. Raising the price of sodas would discourage sales, especially among young people most susceptible to marketing efforts and most vulnerable to weight gain. A one-cent tax per ounce should do the trick and raise plenty of needed revenue besides.

Remove vending machines from schools. Yes, the Beverage Association only puts “better-for-you” drinks in school vending machines, but sugar-filled sports drinks are still liquid candy. And kids should not have to pay for water in schools.

Restrict marketing of sodas to children. Soda companies market extensively to children and adolescents, especially those in low-income neighborhoods. Just look at billboards, celebrity photos on soda cans and Pepsi’s $50 million dollar deal with Beyoncé. They should not be permitted to market to kids this way. We already have restrictions on cigarette and alcohol marketing to kids. It breaks no new ground to add sodas to the list.

Don’t let SNAP (food stamp) benefits be used for sodas. Bloomberg tried this, but the federal Department of Agriculture said no. There is absolutely no reason that taxpayer-subsidized food assistance for low-income people should go toward junk with no nutritional value. He should try again.

Show full calories on the front of containers. The current way calories are tallied, in a measure called “calories-per-serving,” is confusing because the servings are unrealistically small and people don’t do the math. Soda cans already give the full calories in tiny type on the Nutrition Facts label, but I want to see the full calories in big type on the front.

Actions like these will evoke ferocious opposition from the soda industry, and it will spare no expense to make sure such things never happen. We would surely hear more and more howls of “nanny-state” from those who insist Bloomberg has led us to the brink of a public health police state. Polls say that many New Yorkers oppose the 16-ounce cap and would oppose measures like this, too.

But I can’t tell whether the opposition comes from genuine concern about limits on personal choice or because soda companies have spent millions of dollars to protect their interests and gin up histrionic, misinformed opposition.

Come Tuesday, the 16-ounce soda is the new default size in New York City. While waiting for the court decision and for politics to play out, why not give it a chance? Maybe it will help you live a healthier and longer life.

 

Here’s my monthly (first Sunday) Food Matters column from the San Francisco Chronicle. The question (edited) came from a reader of this blog.

Q: You view New York City’s cap on any soda larger than 16 ounces as good for public health. I don’t care if sodas are bad for us. The question is “Whose choice is it?” And what role should the nanny state play in this issue?

A: Your question comes up at a time when the New York State Supreme Court is hearing arguments about whether New York City’s health department has the right to establish a limit on soda sizes.

As an advocate for public health, I think a soda cap makes sense. Sixteen ounces provides two full servings, about 50 grams of sugars, and 200 calories – 10 percent of daily calories for someone who consumes 2,000 calories a day.

That’s a generous amount. In the 1950s, Coca-Cola advertised this size as large enough to serve three people.

You may not care whether sodas are bad for health, but plenty of other people do. These include, among others, officials who must spend taxpayer dollars to care for the health of people with obesity-related chronic illnesses, employers dealing with a chronically ill workforce, the parents and teachers of overweight children, dentists who treat tooth decay, and a military desperate for recruits who can meet fitness standards.

Poor health is much more than an individual, personal problem. If you are ill, your illness has consequences for others.

That is where public health measures come in. The closest analogy is food fortification. You have to eat vitamins and iron with your bread and cereals whether you want to or not. You have to wear seat belts in a car and a helmet on a motorcycle. You can’t drive much over the speed limit or under the influence. You can’t smoke in public places.

Would you leave it up to individuals to do as they please in these instances regardless of the effects of their choices on themselves, other people and society? Haven’t these “nanny state” measures, as you call them, made life healthier and safer for everyone?

All the soda cap is designed to do is to make the default food choice the healthier choice. This isn’t about denial of choice. If you want more than 16 ounces, no government official is stopping you from ordering as many of those sizes as you like.

What troubles me about the freedom-to-choose, nanny-state argument is that it deflects attention from the real issue: the ferocious efforts of the soda industry to protect sales of its products at any monetary or social cost.

The lawsuit against the soda cap is a perfect example. It is funded by the American Beverage Association, the trade association for Coca-Cola, PepsiCo and other soft-drink companies, at what must be astronomical expense.

To confuse the public about corporate profits as a motive, the beverage association enlisted two distinguished civil rights groups – the NAACP and the Hispanic Federation – to file an amicus brief on behalf of its lawsuit.

Never mind that the obesity rate for the communities these groups represent is considerably higher than average in New York City, and that these neighborhoods would benefit most from the soda cap. The amicus brief argues that the soda cap discriminates against them.

The brief, however, neglects to mention that both amicus groups received large donations from soda companies and that the NAACP in particular has a long history of partnership with Coca-Cola.

Financial arrangements between soda companies and ostensibly independent groups demand scrutiny. National and local reporters – bless them – have done just that.

They report, among other connections, that one of the law firms working for Coca-Cola wrote the amicus brief, and that a former president of the Hispanic Federation just took a job with that company.

Last fall, the East Bay Express exposed how the soda industry exploited race issues to divide the electorate and defeat the Measure N soda tax initiative in Richmond. It revealed

that the beverage association not only paid for the successful “grassroots” campaign against Measure N but also encouraged views of the soda tax as racist.

Driven by this experience, the soda industry is repeating this tactic in New York City.

Is a cap on soda sizes discriminatory against groups working for civil rights? Not a chance.

Public health measures are about alleviating health disparities and giving everyone equal access to healthy diets and lifestyles. This makes public health – and initiatives like the soda cap – broadly inclusive and democratic.

If anything is undemocratic and elitist, it is suing New York City over the soda cap.

In funding this lawsuit, the soda industry has made it clear that it will go to any length to protect its profits, even if it means discrediting the groups that would most benefit from this rather benign public health initiative.

Yesterday, JAMA released a theme issue on obesity with several articles of particular interest, starting with New York City Health Commissioner Tom Farley’s Viewpoint.  About portion sizes, Dr. Farley notes:

As publicly traded companies responsive to the interests of their shareholders, food companies cannot make decisions that will lower profits, and larger portion sizes are more profitable because most costs of delivering food items to consumers are fixed….The sale of huge portions is driven by the food industry, not by consumer demand….The portion-size studies strongly suggest that, with a smaller default portion size, most consumers will consume fewer calories.  This change will not reverse the obesity epidemic, but it can have a substantial effect on it.

Lots of interesting food for thought here.  Take a look:

Viewpoint

The Role of Government in Preventing Excess Calorie Consumption:  The Example of New York City
Thomas A. Farley, MD, MPH
JAMA. 2012;308(11):1093 doi:10.1001/2012.jama.11623

The Next Generation of Obesity Research:  No Time to Waste
Griffin P. Rodgers, MD; Francis S. Collins, MD, PhD
JAMA. 2012;308(11):1095 doi:10.1001/2012.jama.11853

FDA Approval of Obesity Drugs:  A Difference in Risk-Benefit Perceptions
Elaine H. Morrato, DrPH, MPH; David B. Allison, PhD
JAMA. 2012;308(11):1097 doi:10.1001/jama.2012.10007

Cardiovascular Risk Assessment in the Development of New Drugs for Obesity
William R. Hiatt, MD; Allison B. Goldfine, MD; Sanjay Kaul, MD
JAMA. 2012;308(11):1099 doi:10.1001/jama.2012.9931

Original Contribution

Exercise Dose and Diabetes Risk in Overweight and Obese Children:  A Randomized Controlled Trial
Catherine L. Davis, PhD; Norman K. Pollock, PhD; Jennifer L. Waller, PhD; Jerry D. Allison, PhD; B. Adam Dennis, MD; Reda Bassali, MD; Agustín Meléndez, PhD; Colleen A. Boyle, PhD; Barbara A. Gower, PhD
JAMA. 2012;308(11):1103 doi:10.1001/2012.jama.10762

Association Between Urinary Bisphenol A Concentration and Obesity Prevalence in Children and Adolescents
Leonardo Trasande, MD, MPP; Teresa M. Attina, MD, PhD, MPH; Jan Blustein, MD, PhD
JAMA. 2012;308(11):1113 doi:10.1001/2012.jama.11461

Health Benefits of Gastric Bypass Surgery After 6 Years
Ted D. Adams, PhD, MPH; Lance E. Davidson, PhD; Sheldon E. Litwin, MD; Ronette L. Kolotkin, PhD; Michael J. LaMonte, PhD; Robert C. Pendleton, MD; Michael B. Strong, MD; Russell Vinik, MD; Nathan A. Wanner, MD; Paul N. Hopkins, MD, MSPH; Richard E. Gress, MA; James M. Walker, MD; Tom V. Cloward, MD; R. Tom Nuttall, RRT; Ahmad Hammoud, MD; Jessica L. J. Greenwood, MD, MSPH; Ross D. Crosby, PhD; Rodrick McKinlay, MD; Steven C. Simper, MD; Sherman C. Smith, MD; Steven C. Hunt, PhD
JAMA. 2012;308(11):1122 doi:10.1001/2012.jama.11164

Health Care Use During 20 Years Following Bariatric Surgery
Martin Neovius, PhD; Kristina Narbro, PhD; Catherine Keating, MPH; Markku Peltonen, PhD; Kajsa Sjöholm, PhD; Göran Ågren, MD; Lars Sjöström, MD, PhD; Lena Carlsson, MD, PhD
JAMA. 2012;308(11):1132 doi:10.1001/2012.jama.11792

Surgical vs Conventional Therapy for Weight Loss Treatment of Obstructive Sleep Apnea:  A Randomized Controlled Trial
John B. Dixon, MBBS, PhD, FRACGP; Linda M. Schachter, MBBS, PhD; Paul E. O’Brien, MD, FRACS; Kay Jones, MT&D, PhD; Mariee Grima, BSc, MDiet; Gavin Lambert, PhD; Wendy Brown, MBBS, PhD, FRACS; Michael Bailey, PhD, MSc; Matthew T. Naughton, MD, FRACP
JAMA. 2012;308(11):1142 doi:10.1001/2012.jama.11580

Dysfunctional Adiposity and the Risk of Prediabetes and Type 2 Diabetes in Obese Adults
Ian J. Neeland, MD; Aslan T. Turer, MD, MHS; Colby R. Ayers, MS; Tiffany M. Powell-Wiley, MD, MPH; Gloria L. Vega, PhD; Ramin Farzaneh-Far, MD, MAS; Scott M. Grundy, MD, PhD; Amit Khera, MD, MS; Darren K. McGuire, MD, MHSc; James A. de Lemos, MD
JAMA. 2012;308(11):1150 doi:10.1001/2012.jama.11132

Editorial

Progress in Filling the Gaps in Bariatric Surgery
Anita P. Courcoulas, MD, MPH
JAMA. 2012;308(11):1160 doi:10.1001/jama.2012.12337

Progress in Obesity Research:  Reasons for Optimism
Edward H. Livingston, MD; Jody W. Zylke, MD
JAMA. 2012;308(11):1162 doi:10.1001/2012.jama.12203

I’m out of town but learned about the hearing by e-mail and twitter (thanks to senders), and I’ve read the coverage in Huffington Post,  the Christian Science Monitor, and the Toronto Star.

One picture says it all:

The hearing on Bloomberg’s soda volume limit takes place today.  I’m traveling and sorry to miss it (I filed comments).

I shouldn’t be surprised but I am stunned by the intensity and depth of soda industry pushback on this, most of it going on and on about the virtues of personal choice, as if container size has nothing to do with the amount people eat.  It does (see below).

In addition to what reporters have been reporting, here’s what I’ve seen personally:

• A phony “grassroots”petition campaign paid for by the soda industry with campaigners paid $30 per hour to collect signatures
• A mailing to my home asking me to protest
• Handout cards
• Subway posters
• Tee shirts
• And highly visible ads on trucks.

And then there’s yesterday’s op-ed in the Wall Street Journal from Seth Goldman, the “TEA-EO” of Honest Tea:

I challenge the mayor and the New York City Board of Health to seriously consider the impediments that entrepreneurs already face in our efforts to offer lower-calorie drinks. Starting a business and building a challenger brand with modest resources is already a daunting task. The proposed ban would create additional barriers to beverage innovation.

Only one thing wrong with this.  Mr. Goldman must have forgotten to mention that since March 2011, Honest Tea has been a wholly owned subsidiary of Coca-Cola.

Yes, I know the petition has gathered 75,000 signatures or so.  The campaigners and signers should all know better.  See this, for example: