by Marion Nestle

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

Aug 2 2010

Why the FDA must act on health claims

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.

Jun 23 2010

CSPI to McDonald’s: take toys out of Happy Meals, or else!

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.

May 31 2010

CSPI’s report card on food marketing policies (or the lack thereof)

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.

Feb 4 2010

The real cost of Coke

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.

Nov 16 2009

Uh oh. Industry forces FDA to drop oyster safety plan

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.

Oct 6 2009

The high human cost of unsafe food

I think we need a whole lot more public outrage about unsafe food.  Maybe the recent front-page articles in the Washington Post and New York Times will do the trick.

Both tell tragic stories of women who developed hemolytic uremia syndrome in response to eating a food contaminated with E. coli O157:H7.  Both reveal the appalling physical and monetary cost of these illnesses.  Recall: we also do not have an effective and affordable health care system.

To me, the most chilling part of the Times investigation had to do with the lack of testing for dangerous pathogens.  No meat packing company wants to test.  Why not?  They know the animals coming into the plant are contaminated.  They know that tests would come up positive.  They know that if they find pathogens, they have to recall the meat.

It’s obvious why meat is contaminated.  The making of hamburger is enough to put anyone off, as the letters to today’s Times attest.  In my book, Safe Food, I discuss a study demonstrating that one pound of commercial hamburger could contain meat from more than 400 cattle.  The Times’ article takes such facts to a personal level.  The 22-year-old woman who ate the tainted hamburger is paralyzed from the waist down and likely never to walk again.

Read these articles and you will understand that meat companies will not do what is needed to produce safe food unless they are forced to.

And it’s not just hamburger that causes problems.  Center for Science in the Public Interest (CSPI) has a new report out on the ten foods that cause the most cases of foodborne illness in America.  Hamburger isn’t even on the list.  Instead, it’s leafy greens, eggs, tuna, oysters, potatoes, cheese, ice cream, tomatoes, sprouts, and berries.  [Addendum October 9: for a critical analysis, see the Perishable Pundit’s comments on the study].

So how come Congress isn’t forcing all food producers to produce safe food?  Could it be because there isn’t enough public outrage to counteract industry pressures and make Congress act?

Put me out of business big box WebBill Marler, who represents both of the victims profiled in those articles, is begging Congress to put him out of business.

His message is clear: get busy and pass meaningful food safety legislation, right now, before it is too late.

I’m hoping these articles and the CSPI report will be seen by senatorial staff who will urge their bosses to support the House bill passed last spring.

Maybe we need hundreds of thousands of people to deluge Congress with appeals to act on food safety, now.

You would like to do this but don’t know how?  Easy.  Find your own representatives online on the House site and your Senator just as easily.  The e-mail addresses are right there waiting to be used.

Addendum: Here’s one rep who is on the job: Rosa de Lauro (Dem-CT).  Take a look at her statement about the Times article.  Where, she wonders, was the USDA while all this was going on?   Doing lots of good things, according to USDA Secretary Tom Vilsack:

No priority is greater to me than food safety and I am firmly committed to taking the steps necessary to reduce the incidence of foodborne illness and protect the American people from preventable illnesses. We will continue to make improvements to reduce the presence of E. coli 0157:H7.

Suggestion: enforce HACCP!

Mar 25 2009

What do I think of Açaí?

I’m often asked about Açaí, the latest miracle fruit that is supposed to cure whatever ails you.

If this is a miracle, it’s one that must be enjoyed by the company that makes MonaVie brand Açaí, which sells for about $40 a bottle.  I had heard about Açaí and was not overly impressed.  But then I got an e-mail from a MonaVie enthsiast who was so convinced of its benefits that he sent me the research.

Here’s one of the studies. It looks formidible but its conclusions are simple.  In translation: MonaVie contains antioxidants.  The antioxidants in MonaVie act like antioxidants in the test tube and in the body, and they work better than potato starch, which has no antioxidants. Why am I not surprised? This is a study sponsored by the manufacturer.

You can read about this study and the rest of fuss over this juice in the March 12 New York Times. It’s in the Style Section (where else?).  The bottom line: all juices have antioxidants and most are a lot cheaper than MonaVie.

As for weight-loss claims: This month’s Nutrition Action Healthletter explains how to analyze Internet advertising, using Açaí as an example of truth-bending.

Mar 5 2009

Food Safety Legislation: Fix FDA vs. Fix the System?

Senator Dick Durbin (Dem-IL) has introduced The FDA Food Safety Modernization Act to give this beleaguered agency the tools and resources to do its job properly.  The proposed Act got immediate endorsements from food industry trade groups: grocery manufacturers, producers of fresh vegetables, and producers of frozen foods, for example.

How come food lobbying groups suddenly want a stronger FDA?  No doubt because the alternative is a single food safety agency that would impose real rules with real teeth, and would oversee the safety of food from farm to table.  Rosa DeLauro introduced just such a bill in the House.

And how’s this for today’s rumors (most definitely unconfirmed): Michael Osterholm is up for USDA undersecretary for food safety and Michael Taylor for head of the White House Office of Food Safety.  Caroline Smith DeWaal, a strong consumer advocate for foods safety is out of the running; she works for Center for Science in the Public Interest (CSPI).  These are just rumors.  If they turn out too be true, I will have more to say about the potential nominees.

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