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Remember menu labeling?  The idea started in New York City in 2008.  Here is one of my early posts on it.  My point in mentioning this: if you care about such things, menu labeling is useful, fun, and effective if you pay attention to it.

Despite a lot of research suggesting otherwise, menu labeling must work.  How else to explain industry’s ferocious and unrelenting opposition to it?

The latest is a lawsuit filed by the Food Marketing Institute and the National Association of Convenience Stores against New York City, which announced that it plans to enforce the regulations it has had in effect for nine years—even though the FDA has delayed national implementation once again until 2018.

To get some idea of what fast-food places are upset about, it helps to check in with the American Pizza Community, the friendly-sounding, but actually highly aggressive trade association for fast-food pizza places.

Here, for example, is its congratulatory statement to the FDA for delaying compliance with the law for another year:

The American Pizza Community welcomes the important step by the Food and Drug Administration toward applying common sense to federal menu labeling regulations…The previous approach threatened to impose excessive burdens on thousands of small businesses without achieving meaningful improvements in educating consumers. The American Pizza Community commends the Administration’s decision to extend the compliance date to May 7, 2018 and its request to collect comments for reducing the regulatory burden and increasing flexibility in implementation methods.  We support menu labeling and look forward to working with policy makers to implement a permanent solution that provides consumers with information and enables small business owners to comply with flexibility while continuing to thrive and create jobs.

By “support,” the pizza folks mean the “Common Sense Nutrition Disclosure Act of 2017.”

Instead of requiring calories to be posted next to the menu item, this bill would allow nutrition information to be available “solely by a remote-access menu (e.g., an Internet menu) for food establishments where the majority of orders are placed by customers who are off-premises.”

Also, “an establishment’s nutrient content disclosures may vary from actual nutrient content if the disclosures comply with current standards for reasonable basis.

The pizza industry has the Wall Street Journal on its side.

The Food and Drug Administration can’t possibly fulfill all of the responsibilities it claims to have, and here’s one way the Trump Administration can set better priorities: Direct the agency to end its effort to inform Americans that pizza contains calories.

I guess the hope is that if they delay long enough, menu labeling will quietly disappear.

CSPI, however, has other ideas.  It filed a lawsuit to force the FDA to implement the regulations.

This lawsuit asserts that the delay of the menu labeling requirement—published without prior notice or an opportunity for comment, one day before the menu labeling rule was supposed to take effect—is illegal and must be vacated.  Since the regulated industry was ready to comply before the delay, it can promptly comply with the menu labeling rule once reinstated and, thus, begin to provide this important health information to the public without delay, according to the complaint.

Recall that menu labeling was authorized by Congress as part of the Affordable Care Act in 2010.  No wonder CSPI wants the rules implemented right away.

The ACA is still with us—so far.

This is one of Food Navigator’s collection of articles, videos, and podcasts on single topics, in this case “clean” labels, clearly a hot trend.

Special Edition: Where next for clean label?

How is the ‘clean-label’ trend evolving? Is it still about avoiding certain ‘artificial’ or ‘artificial-sounding’ ingredients, or is it now part of a broader conversation about GMOs, animal welfare, sustainability, and business ethics? What do consumers understand by ‘clean’ food? And how will they view innovations from monk fruit produced from microbes, to ‘meat’ and ‘milk’ made without raising animals?

To the casual observer, ‘cleaning up’ our food sounds like an eminently sensible thing to do. But where is the clean label trend going, and is ditching every ingredient you can’t pronounce really the key to fixing the ‘broken’ food system (as Panera implies in a recent ad) or improving the health of people and the planet? .. Read

• CLEAN LABEL 2.0: Natural flavors and preservatives, pesticide residues, and Non-GMO in the spotlight: Think ‘clean label’ just means ditching ‘artificial’ ingredients and avoiding anything attracting negative press (warranted or otherwise)? Think again. Today, brands are also questioning whether ‘natural’ flavors, preservatives and sweeteners are really ‘clean,’ whether Non-GMO claims should only apply to what’s in the final product, and whether pesticide residues – even at trace levels – belong in ‘natural’ or ‘clean label’ foods. So where will this all lead?.. Read
• Clean label: What works, what doesn’t, where is it headed, and what are the legal vulnerabilities?: The clean label movement may have started as industry’s response to consumers who wanted foods and beverages made without artificial or “chemical” sounding ingredients, but overtime as brands continued to one-up each other, the concept morphed and metastasized to represent so much more… Read
• SmartLabel gains traction as a tool for brands to meet consumers’ mounting clean label demands: While SmartLabel is still in its relative infancy, manufacturers are flocking to the technology to help them provide the in-depth information that today’s consumers want as part of the clean label movement, but which might not fit on product packaging… Watch now
• Arctic Zero’s new social media video campaign shows how ‘clean label’ is more than just ‘free-from’: With the launch of four new varieties, Arctic Zero produced a video to tell consumers the story of how the ingredients were sourced… Watch now
• Soup-To-Nuts Podcast: Clean label 2.0 and other top marketing strategies for natural products: When it comes to marketing products in the natural channel it seems like there are as many strategies as there are products; but just like how not all products resonate with all consumers, not all marketing strategies do either. .. Listen now
• BioChecked founder: ‘We knew non glyphosate certification was going to be something people look for’: After observing trade shows, lab test requests, and online forums on food and health, BioChecked executive director Scott Prentice and his team thought the timing was right to launch a ‘non glyphosate’ certification… Read
• Campbell Soup backs ‘potassium salt’ petition: A more consumer-friendly name will ‘advance public health goals’: Campbell Soup has joined a growing number of food manufacturers backing a citizen’s petition from NuTek Food Science asking the FDA to allow ‘potassium salt’ as an alternate name for potassium chloride on food labels… Read
• Spindrift CEO: ‘We have all the makings of a brand that can be disruptive’: Multinationals are investing in – or snapping up – smaller, more entrepreneurial brands in the natural and organic food and beverage space faster than you can say ‘because that’s where the growth is’. So will Spindrift – which is on a mission to disrupt the sparkling water category – be next on Big Food’s shopping list?.. Read
• Propylene glycol in the spotlight as Hint Water is targeted in ‘all-natural’ lawsuit with a new twist: Propylene glycol (PG) is an FDA-approved synthetic substance widely used as a solvent in ‘natural flavors’- which are clearly defined in law. But would consumers expect to find it in a product marketed as ‘all-natural’ – a term that doesn’t have a clear legal definition? Not according to a class action lawsuit filed against Hint Inc this week… Read
• Consumer interpretation of clean label trend varies by generation: As the concept of clean label continues to evolve and transition from an industry term to one consumers understand and seek, companies should take a more sophisticated approach to the trend by accounting for how different generations prioritize and interpret it, suggests research from C&R Research. .. Read
• Clean label reformulations can buffer frozen food sales’ slow but steady decline: A slow decline is forecasted for total frozen food sales, which includes frozen dinners/entrees, pizzas, side dishes, and appetizers/snacks, according to Packaged Facts’ latest numbers… Read
• In the age of clean label, are consumers in developed markets losing interest in fortified foods? With clean label now “the most dominant trend in food and drink,” many food and beverage manufacturers are moving away from fortifying foods with minerals, vitamins and other nutritious ingredients, says Euromonitor International… Read
• Clean label trend opens up new application opportunities for citrus fiber: The quest to rid product labels of phosphates, carrageenan, titanium dioxide, mono- and di-glycerides and other substances gracing food marketers’ ‘unacceptable ingredients’ lists has created new growth opportunities for Fiberstar’s citrus fibers, which are sourced from byproducts of the juicing industry… Read

I love USDA’s charts of food and agriculture statistics because they tell most of the story at a glance.

These are based on USDA’s compilations of foods produced in the U.S. plus imports, less exports, divided by the total population.

The most commonly consumed vegetable?  Potatoes by a long shot (think: French fries).  Next comes tomatoes (pizza).  Variety anyone?

How about fruit?  Oranges, apples, bananas.   Really, can’t we be more adventurous?

It’s pretty depressing to watch what’s happening to the gains in food and nutrition policy so hard won in the last few years.

Nothing but bad news:

Menu labeling:  The FDA is submitting interim final rules, a tactic to delay implementation of menu labeling, which was supposed to start on May 5.  Why?  The National Association of Convenience Stores and the National Grocers Association filed a petition asking for the delay.   Pizza sellers have been lobbying like mad to avoid having to post calories.

Food labels (calories, added sugars): As the Washington Post puts it, the food industry is counting on the current administration to back off on anything that might help us all make better food choices.  At least 17 food industry groups have asked for a delay in the compliance date for new food labels—for three years.  Why?  They are a burden to industry.  The soon-to-be FDA Commissioner, Scott Gottlieb, said this about food labels:

As a general matter, I support providing clear, accurate, and understandable information to American consumers to help inform healthy dietary choices,” Gottlieb wrote, according to documents obtained by The Washington Post. “ … However, I am mindful of the unique challenges that developing and communicating such information can pose, particularly on small, independent businesses.”

Definition of dietary fiber: The American Bakers Association wants the FDA to take back its new, stricter definition of dietary fiber, (it excludes synthetic fiber) due to go into effect in July 2018.

School meals: The USDA says it is about to announce new school meal “flexibility” (translation: rollback of nutrition standards).

The score: Big business 4, public health 0

Happy May Day.

For further reading:

• Vox’s Julia Belluz reviews these issues, but also comments on Michelle Obama’s enduring legacy.
• Politico summarizes USDA’s proposed actions.

Addition: It gets worse.  Politico reports that the congressional spending bill:

Contains a rider blocking funds from being used to work on “any regulations applicable to food manufacturers for population-wide sodium reduction actions or to develop, issue, promote or advance final guidance applicable to food manufacturers for long term population-wide sodium reduction actions until the date on which a dietary reference intake report with respect to sodium is completed.”

Politico also points out that the previous draft of the appropriation bill merely encouraged FDA to delay its salt reduction proposal until the reference intake report is updated (this, by the way, will take years).

More documents:

• USDA’ proclamation on school meals
• CSPI’s press release
• Background: the letter from Senator Pat Roberts (R-KS) requesting these changes
• The FY2017 omnibus spending bill that includes the school lunch changes
• RWJ Foundation’s statement

The New York Time published its annual food issue on Sunday, this one with the theme, “Can Big Food Change?”

In the circles in which I travel, Michael Pollan’s “Big food strikes back: Why did the Obamas fail to take on corporate agriculture?” caused the biggest stir.  Here’s what set people off:

On “Outlobbied and Outgunned:”  The word I’ve been using to describe food industry lobbying against Michelle Obama’s Let’s Move! campaign is ferocious.

I’ve always thought that Mrs. Obama must have picked the goal of Let’s Move!—“Ending childhood obesity in a generation“—as a safe, bipartisan issue that Republicans and Democrats could all get behind.  Doesn’t everyone want kids to be healthy?

I can’t imagine that she could have predicted how controversial matters like healthy school lunches or nutrition standards for food advertising to kids would become.

Whatever.  The food industry’s response to everything Let’s Move! tried to do was ferocious.

Despite all that, as I’ve said, Let’s Move! managed to accomplish some important gains: healthier school meals, more informative food and menu labels, the White House garden, and—most important—getting food issues on the national agenda.

On “the food movement barely exists:” I once taught a course on food as a social movement with Troy Duster, a sociologist then at NYU, who had much experience teaching about social movements.

He made one point repeatedly: those who are in the middle of a social movement cannot possibly judge its effectiveness.  You can only know when a movement has succeeded or failed when it is over.

This one is not over yet.

This movement, fragmented in issues and groups as it most definitely is, may not have clout in Washington, DC, but it is having an enormous effect on supermarkets, food product manufacturers, fast food chains, the producers of meat, eggs, and poultry, and young people in this country.

How else to explain:

• The vast improvement in the quality of foods sold in supermarkets
• The rush of food product makers to remove artificial colors, flavors, trans-fats. and other potentially harmful food additives, including sugars and salt
• The insistence of fast food chains on sourcing meat from animals raised without hormones or antibiotics
• The actions of meat, egg, and poultry producers to care for their animals more humanely
• Soda tax initiatives in so many cities

And my personal favorite,

• The enormous numbers of college students clamoring for courses about food systems and the role of food in matters as diverse as global resource inequities and climate change.

As Troy Duster kept telling us, it’s not over until it’s over.

While waiting for enlightenment, let’s celebrate the proliferation of food organizations.  They are all working on important issues and doing plenty of good.

And yes, let’s encourage all of them to move beyond the local, engage in national politics, and put some pressure on Washington to come up with better food policies.

Here are the other articles in the magazine, all of them well worth reading.

• George Steinmetz, SuperSize: The dizzying grandeur of 21st century agriculture (photos)
• Corby Kummer, Pie in the sky: Is it possible to make a more healthful frozen pizza? (I’m quoted)
• Ten Genoways, Close to the Bone: The fight over transparency in the meat industry
• Malia Wollan, Brand new hue: the quest to make a true blue M&M

Wonder of wonders, the FDA at last has issued its Final Guidance on Menu Labeling to go into effect a year from now.

Why astonishment?  New York City has had menu labeling since 2008. The national process started in 2010.

Here’s the chronology:

Happily, the rules will cover:

bakeries, cafeterias, coffee shops, convenience stores, delicatessens, food service facilities and concession stands located within entertainment venues (such as amusement parks, bowling alleys, and movie theatres), food service vendors (such as ice cream shops and mall cookie counters), food takeout or delivery establishments (such as pizza takeout and delivery establishments), grocery stores, retail confectionary stores, superstores, quick service restaurants and table service restaurants.

Center for Science in the Public Interest has produced celebratory graphics:

It’s too bad we have to wait yet another year, but menu labels are worth the wait.

The FDA documents:

• Final Guidance for Industry: A Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods – Part II (Menu Labeling Requirements in Accordance with 21 CFR 101.11)
• Guidance for Industry: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments: Small Entity Compliance Guide
• Final Rule: Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments

Helena Bottemiller Evich of Politico Morning Agriculture, has produced an alarming investigation of the Obama Administration’s failure to support its own food safety initiatives.  Fortunately, Politico has released it from behind the paywall so it can be read by non-subscribers.  Do read it.  It’s a depressing slice of political reality.

The Obama administration and Congress have all but squandered an opportunity to give the anemic Food and Drug Administration, which is responsible for the safety of 80 percent of the nation’s food supply, a level of oversight the public long assumed it already had.

On paper…the Food Safety Modernization Act…mandated more inspections and much tougher anti-contamination standards for everything from peaches to imported pesto sauce, and it placed more emphasis on preventing outbreaks than on chasing them down after people become sick.

But almost five years later, not one of the sweeping new rules has been implemented and funding is more than $276 million behind where it needs to be. A law that could have been legacy-defining for President Barack Obama instead represents a startling example of a broad and bipartisan policy initiative stymied by politics and the neglect of some of its strongest proponents.

The result is shown in this chart.

She adds: 

The White House has routinely put nutrition policy ahead of food safety, sat on key regulations for months and made only halfhearted attempts to fund the law…Congress, too, bears blame: With no real pressure from the White House or the public, Capitol Hill has given the FDA less than half of what the agency says it needs to actually enforce the new rules, once they take effect.

I’m not so sure about the “putting nutrition ahead” part of this.  Critics have long complained that the White House could have done much more to promote healthier diets.  They recall the lack of support for the Interagency Working Group’s recommendations for nutrition standards for marketing to children.  Menu labeling has just been delayed a year (although advocates tell me that this compromise was necessary to keep labeling for pizza places and movie theaters—ultimately a victory).  

This administration has about a year left to get its legacy in order.  A full-court press in support of the FDA is just what is needed.  Now!

Yesterday, the FDA announced a delay in implementation of menu labeling until December 1, 2016.

Since the FDA issued the menu labeling final rule on December 1, 2014, the agency has had extensive dialogue with chain restaurants, covered grocery stores and other covered businesses, and answered numerous questions on how the rule can be implemented in specific situations. Industry, trade and other associations, including the grocery industry, have asked for an additional year to comply with the menu labeling final rule, beyond the original December 2015 compliance date. The FDA agrees additional time is necessary for the agency to provide further clarifying guidance to help facilitate efficient compliance across all covered businesses and for covered establishments to come into compliance with the final rule. The FDA is extending the compliance date for the menu labeling rule to December 1, 2016, for those covered by the rule.

Here are the relevant Federal Register notices:

• Federal Register Notice for the Compliance Date Extension
• Menu and Vending Machines Labeling Requirements

Let’s be clear about what’s going on here.  New York City, where I live, has had menu labeling since 2008.  The world has not come to an end.

The Affordable Care Act made menu labeling go national in 2010.  The Supreme Court affirmed that law in 2012.

The seemingly endless delays look like successful lobbying at the expense of consumers and public health.

The New York Times account quotes me on this point:

This is a huge victory for the restaurant lobbyists,” said Marion Nestle, a professor in the department of nutrition, food studies and public health at New York University. “Food companies must be hoping that if they can delay menu labeling long enough, it will just go away.

The pizza industry, one of the chief lobbying groups on this issue, is pleased by the decision.  Lynn Liddle, Chair of the American Pizza Community sent out this statement yesterday:

FDA’s delay confirms both the serious deficiencies in the final rules and the urgent need for enactment of the bipartisan Common Sense Nutrition Disclosure Act (H.R. 2017).  Unfortunately, FDA proceeded with an approach to final rules that impose significant compliance costs without achieving any meaningful improvements in consumer education.  After years of uncertainty, FDA still has not addressed basic questions regarding implementation.  The American Pizza Community looks forward to continuing to work with Members of Congress to secure timely passage of the Common Sense Nutrition Disclosure Act.

If you can’t get federal agencies to back off on public health, go right to Congress.

The pizza industry had already succeeded in getting this provision in the House Agricultural Appropriations bill:

SEC. 744. None of the funds made available by this Act may be used to implement, administer, or enforce the final rule entitled ‘‘Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments’’ published by the Food and Drug Administration in the Federal Register on December 1, 24 2014 (79 Fed. Reg. 71156 et seq.) until the later of— (1) December 1, 2016; or (2) the date that is one year after the date on which the Secretary of Health and Human Services publishes Level 1 guidance with respect to nutrition labeling of standard menu items in restaurants and similar retail food establishments.

Although this act is not yet passed and it’s not clear whether this provision would have survived, the FDA got the message (or maybe the White House made sure that it did?).

Menu labels inform the public about the number of calories in the foods they are buying.

The ferocity of lobbying on this idea suggests that restaurant companies would rather you did not have this information.

The FDA, alas, is not helping much on this one.