The New York State Court of Appeals issued a decision this morning on the Portion Cap Rule:

PIGOTT, J.:
We hold that the New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule”, exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York.

Although the decision applies to the Portion Cap Rule, it has a much larger meaning.

The ruling means the Court does not accept the idea that health departments have the right to set health policy for city residents.  I suspect we will be seeing the implications of this ruling for a long time to come.

The city health commissioner, Mary Bassett, issued a brief statement:

Today’s ruling does not change the fact that sugary drink consumption is a key driver of the obesity epidemic, and we will continue to look for ways to stem the twin epidemics of obesity and type 2 diabetes by seeking to limit the pernicious effects of aggressive and predatory marketing of sugary drinks and unhealthy foods.

This doesn’t sound like the city will appeal to the U.S. Supreme Court, but maybe it’s too early to say.

I will post additional comments later, as they come in.  Stay tuned.

Additions:

As I just told a reporter, ”

The key issue here is whether health departments have the right to set policy to protect the health of citizens under their jurisdiction.  This court says no, but this seems precedent-setting. The medical community most definitely should support measures to improve the environment of food choice.  Changing the behavior of individuals is extremely difficult and rarely successful; it works much better to improve the environment so it’s easier for individuals to make healthier choices.

On the court decision: The vote was 4 to 2, with one abstention.   Here’s a quotation from Judge Susan Read’s dissenting opinion:

What petitioners have truly asked the courts to do is to strike down an unpopular regulation, not an illegal one…To sum up, if the People of the City or State of New York are uncomfortable with the expansive powers first bestowed by the New York State Legislature on the New York City Board of Health over 150 years ago, they have every right and ability to call on their elected representatives to effect change. This Court, however, does not…The majority fails to advance any persuasive argument why the judiciary should step into the middle of a debate over public health policy and prohibit the Board from implementing a measure designed to reduce chronic health risks associated with sugary beverages just because the Council has not chosen to act in this area.

The New York Times also quotes from this dissent:

In a blistering dissent of the opinion, Judge Susan P. Read wrote that the ruling ignored decades of precedent in which the Board of Health was given broad purview to address public health matters, such as regulating the city’s water supply and banning the use of lead paint in homes.  The opinion, Judge Read wrote, “misapprehends, mischaracterizes and thereby curtails the powers of the New York City Board of Health to address the public health threats of the early 21st century.”  One justice in the majority, Judge Sheila Abdus-Salaam, seemed to share those concerns, writing in a separate concurrence that “no one should read today’s decision too broadly.”

It’s always amusing to hear what the Washington Legal Foundation, which filed an amicus brief supporting the soda industry’s position, has to say:

New York City’s misguided soda ban was arbitrary, paternalistic, and profoundly inconsistent with separation-of-powers principles. The Court’s decision to strike it down vindicates fundamental constitutional values, protects consumer freedom, and encourages sound regulatory policies.

Jane Delgado of the National Alliance for Hispanic Health’s issued a statement:

 We are deeply disappointed that the court today limited the power of the NYC Board of Health to
act on behalf of the health of New Yorkers… The portion cap rule is the right policy for New York City and communities throughout the nation facing the rise of chronic diseases, such as diabetes.

Columbia University researchers have issued an evaluation of New York City’s Green Cart Initiative, which puts street vendors selling fruits and vegetables into low-income areas.

The initiative has three purposes: to change the NYC food landscape, to expand economic opportunity for vendors, and to promote healthier eating for low-income residents.

The Green Carts Evaluation reports much success on all fronts.

• Green carts are on the streets
• 80% of vendors say they are making a living.
• 71% of customers say they are eating more fruits and vegetables.

According to the press release, “Columbia SIPA researchers also find Green Carts are creating economically viable small business opportunities for immigrant entrepreneurs, recognize important role of philanthropy in promoting and supporting innovative public policy.”

This last refers to the funder, the Laurie M. Tisch Illumination Fund.

The report also identifies what it calls “opportunities to enhance the program” (translation: things that are not working so well):

• Green Carts are not distributed evenly throughout all high-need targeted areas.
• Green Carts are located close to public housing in only one borough.
• There is an inadequate tracking system for where Green Carts are or how many are on the streets.

Still, it looks like the program is working out according to plan.

This is a pleasant surprise.  I’ve been dubious about the program, mainly because every time I forget and buy berries at one of those carts, they turn out to be moldy.

Correction and apology, June 26: Thanks to Karen Karp for pointing out that the street vendors from whom I bought moldy berries could not possibly have been part of the Green Cart Initiative.  Green Carts, she points out, are

• Distinguished by an iconic umbrella.
• Only permitted in certain areas of the city–low-income, “food desert,” high diet related disease.  In Manhattan, that means North of 97th street on the East side, and 110th street on the West.

I bought berries from carts South of 14th street.

Green cart vendors: I apologize.  Please accept and forgive.

Hoping to cash in on the current protein craze, General Mills has come up with this (thanks to Kasandra Griffin of  Upstream Public Health in Portland, OR,  for sending):

Cheerios Protein has 7 grams of protein per serving.  But it also has 17 grams of sugars.

I use sugars, plural, for good reason.  Here’s the ingredient list:

In case you can’t read this: Whole grain oats, cluster (whole grain oats, brown sugar, soy protein, lentils, sugar, corn syrup, natural flavor, molasses, rice starch, caramel (sugar, caramelized sugar syrup), salt, calcium carbonate, baking soda, color added, BHT added to preserve freshness), sugar, corn starch, honey, salt, refiner’s syrup, tripotassium phosphate, rice bran and/or canola oil, color added, natural flabor, brown sugar, vitamin E (mixed tocopherols) and BHT added to preserve freshness.

A trip to the supermarket also turned up these:

This one has 16 grams of sugars.

And here’s another.  This one only has 7 grams of sugar per serving.  How come?  Sucralose!

Really, you can’t make this stuff up.

And just a reminder about protein: American consume roughly twice as much as needed.  Protein is not an issue in U.S. diets.

This is about marketing, not health.

I guess Cheerios SUGARS, Fiber One SUGARS, or Special K SUGARS PLUS ARTIFICIAL SWEETENERS wouldn’t go over nearly as well.

I love reading Politico Pro Agriculture.  It comments this morning on the new Majority Leader in the House, Kevin McCarthy (R-CA), who represents the San Joaquin Valley where Big Agriculture is worth $3 billion.  This comes from 16 commodities, among them cotton, garlic, cattle, tomatoes and wine grapes..

Pro Ag quotes Western Growers President and CEO Tom Nassif:

Majority Leader-elect McCarthy has provided critical leadership on a number of issues impacting the produce industry, including ensuring passage of a farm bill that recognizes the importance of fresh fruits, vegetables and tree nuts, ongoing work to negotiate a solution to our water crisis, and of course working to address the immigration needs of agriculture…We look forward to working this year with the new majority leader to bring relief to our drought stricken farmers and to finally fix our broken immigration system.

Pro Ag did some homework and checked the lobbying database on Open Secrets.

• McCarthy’s 2013-14 campaign contributions from agribusiness PACs and individuals: $226,550.
• McCarthy is third in rank among top House recipients of food and beverage contributions so far in 2014: $67,481.

As for what to expect from McCarthy?  Think Eric Cantor.

According to Vox‘s Ezra Klein,

It’s hard to come up with ways in which Rep. Kevin McCarthy, the California Republican who previously served as House Republican Whip, differs from Cantor. They both want to cut taxes. They both voted for the Ryan budget. They both want to repeal Obamacare. And, for all the talk of Cantor’s defeat being about immigration reform, McCarthy has basically the same position on immigration reform: he’s abstractly for immigration reform, but he’s not going to bring any solution to the problem up for a vote.

Business as usual, alas.

ProPolitico writes that the Corn Refiners Association (CRA) and five other industry groups have written the FDA that they intend to fund their own research on the FDA’s proposed changes to the Nutrition Facts label.

The FDA already has a research project underway.

Why would the CRA—the trade association for the makers of high fructose corn syrup—want to bother with an expensive and complicated research project like this?

In an interview, John Bode, CRA president and CEO, told Politico:

The FDA has estimated that changes to the label could cost the industry $2.3 billion, but ‘we suspect that is a very conservative number.

OK.  So one purpose of the research will be to prove that the new food label will cost industry a lot more money than the FDA estimates.

Let me take a guess here and surmise that another purpose will be to prove that listing “added sugars” on food labels “misleads” the public.

This will be industry-funded research.  No matter how well it appears to be done, it is highly likely to produce the answers the CRA wants.

Otherwise, why do it?

If you are a betting person, this one looks like a sure thing.

FDA: finish up those studies and get the results out!

Addition, June 20:  Legal analysts, one a former attorney for CSPI who now works for a law firm representing industry clients, advise against putting “added sugars” on the label.  

I love butter as much as the next person, but when I went to New York’s Food Fest yesterday, the butter makers were all proudly displaying Time Magazine’s provocative June 23 cover.

The cover story is by Bryan Walsh.

It comes with an even more provacative video–one of those “everything you thought you knew about diet is wrong” things.

I’m quoted in his article, but I wish he had quoted more of my comments about context.

He says saturated fat consumption is down, but heart disease is still the number one killer of Americans.

Yes it is, but not nearly as much as it used to be (as I discussed in a previous post):

Americans must be doing something right.

The big problem is type-2 diabetes.  It’s going up in parallel with obesity: Fat calories and sugar calories contribute to obesity.

The dietary bottom line?  Eat your veggies, balance calories, and stay active.

Really, it’s not more complicated than that.

But that kind of advice will never make the cover of Time, alas.

Addition, June 20: David Katz on how easy it is to misinterpret studies of saturated fat (or sugars for that matter) and health.

Eating fish presents difficult dilemmas (I evaluate them in five chapters of What to Eat).

This one is about asking pregnant women to weigh the benefits of fish-eating against the hazards of their toxic chemical contaminants to the developing fetus.

The Dietary Guidelines tell pregnant women to eat 2-to-3 servings of low-mercury fish per week (actually, it’s methylmercury that is of concern, but the FDA calls it mercury and I will too).

But to do that, pregnant women have to:

• Know which fish are low in mercury
• Recognize these fish at the supermarket, even if they are mislabeled (which they sometimes are).

Only a few fish, all large predators, are high in mercury.  The FDA advisory says these are:

• Shark
• Swordfish
• King Mackerel
• Tilefish

What?  This list leaves off the fifth large predator: Albacore (white) tuna.  This tuna has about half the mercury as the other four, but still much more than other kinds of fish.

The figure below comes from the Institute of Medicine’s fish report.  It shows that fish highest in omega-3 fatty acids, the ones that are supposed to promote neurological development in the fetus and cognitive development in infants, are also highest in mercury.

White tuna is the line toward the bottom.  The ones in the blue boxes are all much lower in omega-3s and in mercury except for farmed Atlantic salmon (high in omega-3s, very low in mercury).

What’s going on here?

• Tuna producers know you can’t tell the difference between white and other kinds of tuna and don’t want you to stop eating tuna during pregnancy.
• The data on the importance of eating fish to children’s cognitive development are questionable (in my opinion).  The studies are short term and it’s difficult to know whether the small gains in early cognitive development that have been reported make any difference a few months later.
• The FDA must be under intense pressure to promote fish consumption.

I think it is absurd to require pregnant women to know which fish to avoid.  In supermarkets, fish can look pretty much alike and you cannot count on fish sellers to know the differences.

Other dilemmas:

• Even smaller fish have PCBs, another toxin best avoided by pregnant women, if not everyone.
• The world’s seafood supply is falling rapidly as a result of overfishing.
• Half of the mercury in seafood derives from emissions from coal-burning power plants.  The best way to reduce mercury in fish is to clean up the emissions from those plants, but plant owners want to avoid the expense.

That’s fish politics, for you.

The FDA documents:

• Press Release: FDA and EPA Issue Draft Updated Advice for Fish Consumption
• FDA and EPA Draft Updated Advice for Fish Consumption (open for public comment)
• Federal Register Notice – Environmental Protection Agency and Food and Drug Administration Advice About Eating Fish: Availability of Draft Update
• Consumer Update: New Advice: Some Women and Children Should Eat More Fish
• Dietary Guidelines for American’s 2010
• Quantitative Assessment of the Net Effects on Fetal Neurodevelopment from Eating Commercial Fish

Is the FDA at war with small, artisanal cheese makers?

I hope not.

But the FDA seems especially clumsy in its dealings with artisanal cheese makers over food safety issues.

The FDA has some legitimate concerns.  Milk is anything but sterile.  Salting and aging cheese kills pathogens but not always completely, and there is always a possibility of recontamination of the rind.

Like all food producers, cheese makers— no matter what their size—ought to be following standard food safety procedures.  Most do.

Even so, contamination happens.  That’s why testing is such a good idea.   It can stop contaminated cheese from making customers sick.

Last week, an FDA official, Monica Metz,  set off a firestorm with a letter to the New York State Department of Agriculture and Markets,

The use of wooden shelves, rough or otherwise, for cheese ripening does not conform to cGMP requirements, which require that “all plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and shall be properly maintained.” 21 CFR 110.40(a). Wooden shelves or boards cannot be adequately cleaned and sanitized.  The porous structure of wood enables it to absorb and retain bacteria, therefore bacteria generally colonize not only the surface but also the inside layers of wood. The shelves or boards used for aging make direct contact with finished products; hence they could be a potential source of pathogenic microorganisms in the finished products.

The American Cheese Society immediately issued a rebuttal:

For centuries, cheesemakers have been creating delicious, nutritious, unique cheeses aged on wood.

Today’s cheesemakers—large and small, domestic and international—continue to use this material for production due to its inherent safety, unique contribution to the aging and flavor-development process, and track record of safety as part of overall plant hygiene and good manufacturing practices. No foodborne illness outbreak has been found to be caused by the use of wood as an aging surface.

The FDA responded with a clarification

Recently, you may have heard some concerns suggesting the FDA has taken steps to end the long-standing practice in the cheesemaking industry of using wooden boards to age cheese. To be clear, we have not and are not prohibiting or banning the long-standing practice of using wood shelving in artisanal cheese. Nor does the FDA Food Safety Modernization Act (FSMA) require any such action. Reports to the contrary are not accurate.

Whew.  Hang onto those boards, but do keep them clean.

As for the FDA: it needs to go further and do a whole lot more to reassure artisanal cheese makers who are convinced that the agency is out to get them and put them out of business.