Food companies insist that they can make health claims for their products, whether backed by science or not, because commercial speech is protected by the First Amendment.

The First Amendment, in case you have forgotten, says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a commentary in JAMA earlier this year about front-of-package labeling, David Ludwig and I argued that it was time to take another look at current interpretations of the First Amendment suggesting that free commercial speech is equivalent to free political or religious speech.  Surely, we said, consumers would be better off without front-of-package labels and health claims on food products.

Last month, the British journal Public Health Nutrition published an article by  Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School.

His article, “Banning front-of-package food labels: First Amendment constraints on public health policy,” takes issue with our JAMA argument:

In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages.

Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’.

Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.

And now, Public Health Nutrition has just published our letter in response to Lytton’s paper.  We say:

In his thoughtful paper about front-of-package food labels, Timothy Lytton states that a ban on such labels would violate First Amendment provisions of the US Constitution. Lytton cites case law to argue that lower courts have consistently interpreted the First Amendment as providing guarantees of free commercial speech.

Indeed they have, and in 2003, the Bush Administration Food and Drug Administration (FDA) stopped defending against misleading health claims cases on First Amendment grounds. We are not lawyers and make no pretense of arguing case law. However, it seems obvious to us that this interpretation of the First Amendment neither follows its original intent, nor promotes the public interest.

The founding fathers clearly intended the First Amendment to guarantee the right of individuals to speak freely about religious and political matters, not the right of food companies to market junk foods to children and adults. Laws are subject to reinterpretation and change, as the history of civil rights legislation makes clear.

That politics influences interpretation of the law at the highest level is evident from the US Supreme Court’s decisions in Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010).

We think the time has come for major legal challenges to the right of corporations to mislead the public on the grounds of free speech. The front-of-package health claims controversy demands immediate attention. We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton’s arguments make the need for such reconsideration perfectly evident.

Public interest lawyers: get to work!

“Minimally processed food a health goal” is the title of today’s Food Matters column in the San Francisco Chronicle.

Q: I may be preaching to the choir here, but isn’t eating a variety of unprocessed (or at least minimally processed) foods the best way to make sure your diet is healthy?

A: Indeed it is, and processing is the healthful food movement’s new frontier. Processed is code for “junk” foods – foods of minimal nutritional value. These crowd the center aisles of supermarkets, add loads of unneeded calories, rely on added nutrients for health benefits, last forever on the shelves and generate enormous profits for their makers.

Sodas are the obvious examples. They have no nutrients (unless fortified), and all their calories come from added sugars.

The food industry will insist that practically everything you eat is processed in some way. Unprocessed foods are rare exceptions – fruits direct from the tree or vine, vegetables pulled from the ground, nuts from wherever they come from, and raw meat, fish, eggs or milk.

Everything else is at least minimally processed – washed, aged, dried, frozen, canned, pasteurized or cooked. But these cause little, if any, loss of nutritional value and make some nutrients more available to the body.

In contrast, more extreme processing changes foods. It reduces the nutritional value of basic food ingredients, adds calories from fats and sugars, and disguises losses in taste and texture with additives such as salt, colors, flavors and other chemicals. Manufacturers add vitamins, minerals, antioxidants, omega-3s and probiotics expressly to make health claims.

Manufacturers say they make the products to give you what you demand: cheap, easy-to-eat-anywhere foods that require no preparation and give you the tastes you love. They back these contentions with increasingly far-fetched health claims, billions of advertising dollars and lobbyists galore.

The big issue is “ultra-processing,” says Carlos Monteiro of the University of São Paulo in Brazil. Writing in the November issue of the online Journal of the World Public Health Nutrition Association, Monteiro ranks the effects of food processing on health as the most important issue in public health nutrition today.

Ultra-processed foods, he says, are the primary cause of the rapid rise in obesity and associated diseases throughout the world.

He charges the food industry with creating durable, convenient, attractive, ready-to-eat or ready-to-heat products that are so palatable that they are habit-forming. And they are meant to be eaten everywhere – in fast-food places, on the street and while watching television, working or driving.

Ultra-processed foods are much higher in calories for their nutrients than unprocessed and minimally processed foods. They have loads of fat, sugars and salt, but are low in vitamins, minerals and fiber.

They are often cheaper than relatively unprocessed foods, especially when sold in supersize portions at discounted prices. And they are often the only foods available in convenience stores or vending machines.

He notes that virtually unregulated advertising identifies ultra-processed foods and drinks as necessary – and, when nutrients are added, as essential – to modern lifestyles and health. Overall, Monteiro says, their high palatability, along with aggressive and sophisticated marketing, undermine the normal processes of appetite control and cause adults and children to overeat.

This is just another way of saying what former Food and Drug Administration head David Kessler says in his provocative book, “The End of Overeating.” Kessler argues that processed and fast foods high in fat, sugars and salt have turned us into a nation of “conditioned overeaters” unable to recognize hunger or satiety.

Current policies ensure that ultra-processed foods stay cheap, and it’s no accident that the relative cost of fruits and vegetables has gone up by 40 percent since the 1980s, while the relative price of sodas and fast food has declined.

If you can afford it, choosing relatively unprocessed foods is good advice. As I wrote in “What to Eat,” it’s best to stick to the real foods around the supermarket perimeter. My only slightly facetious shopping rules: Avoid processed foods with more than five ingredients, ingredients you can’t pronounce, and those with cartoons on the package aimed at marketing to kids.

Marion Nestle is the author of “Food Politics,” “Safe Food,” “What to Eat” and “Pet Food Politics,” and is a professor in the nutrition, food studies and public health department at New York University. E-mail her at food@sfchronicle.com, and read her previous columns at sfgate.com/food.

This article appeared on page L – 3 of the San Francisco Chronicle

Occasionally I write short pieces on request.  A couple have just been published.

The State Department’s Bureau of International Information Programs (who knew?) runs a website, America.gov, on which it provides answers to questions “YOU Asked!”   It invited me to respond to the question, “Why are so many Americans overweight.”

And the professional journal, Childhood Obesity, asked several people to contribute to its new “Industry Watch” column.  The question: “Will private sector companies “step up to the plate” to protect children’s health?

Enjoy!  I file links to these and other writings under Publications on this site.

I haven’t seem much comment on what’s happening with Center for Food Safety v. Vilsack, a suit to prevent planting of genetically modified (GM) sugar beets because USDA allowed them to be grown without filing an Environmental Impact Statement (EIS).

This is kind of after-the-fact because Monsanto’s GM sugar beets have been planted widely for the last five years and now comprise 95% of the sugar beet crop in the U.S.

As the Center for Food Safety explains,

The court outlined the many ways in which GE sugar beets could harm the environment and consumers, noting that containment efforts were insufficient and past contamination incidents were “too numerous” to allow the illegal crop to remain in the ground. In his court order, Judge White noted, “farmers and consumers would likely suffer harm from cross-contamination” between GE sugar beets and non-GE crops. He continued, “the legality of Defendants’ conduct does not even appear to be a close question,” noting that the government and Monsanto tried to circumvent his prior ruling, which made GE sugar beets illegal.

No surprise, Monsanto is appealing and is likely to be joined by the government in the appeal.  Food Safety News quotes a Monsanto spokesman:

With due respect, we believe the court’s action overlooked the factual evidence presented that no harm would be caused by these plantings, and is plainly inconsistent with the established law as recently announced by the U.S. Supreme Court,” said David Snively, general counsel for Monsanto, in a news release….The issues that will be appealed are important to all U.S. farmers who choose to plant biotech crops…We will spare no effort in challenging this ruling on the basis of flawed legal procedure and lack of consideration of important evidence.”

Food Safety News also reports that a Washington state apple grower has petitioned USDA to allow it to market a GM apple engineered to resist browning.

But wait.  I’m confused.  Isn’t the FDA supposed to be the agency that approves the planting of GM foods?

This sent me right to the FDA site that summarizes GM varieties that are permitted to be planted (“completed consultations“).  I see papayas and cantaloupe on the list, but not a single apple variety.

How can this company market a GM variety of apples if the FDA hasn’t approved it?  Can anyone explain what’s going on here?  Thanks.

Update December 3:  A judge in San Francisco ordered GM sugar beets planted on 256 acres to be destroyed.  USDA is appealing.  And now everyone is worried about sugar shortages.  Oh dear.

In case you missed it (and how could you?), the FDA Food Safety Modernization Act passed the Senate yesterday by a huge majority.  Thanks to Beth Bainbridge for sending me this link to a map of how the votes went—a graphic, interactive illustration of partisan politics in action.

If you would like to know what the bill really says as opposed to the mythology, you can read a short Summary , or take a look at the entire bill.  And here’s FoodSafetyNews on some of those details.

The next steps: (1) reconciliation with the House version passed a year ago July, and (2) submission of the joint version to President Obama for signature.  This has to be done before this session of Congress expires in just a few weeks.

By all reports, reconciliation will not be so easy.  FoodSafetyNews explains all the things that can derail the bill between now and then, and the list is long and weird (who ever heard of “blue-slipping,” for example?).

Some folks are happy about the Senate action, but some most definitely are not.  FoodSafetyNews summarizes the reactions, as does the New York Times account.

Time is short.  The stakes are high.  Keep fingers crossed.

In a report likely to send shock waves through the dietary supplement industry, the Institute of Medicine (IOM) released new Dietary Reference Intakes for vitamin D and calcium.   The report summary says Americans are getting all the vitamin D and calcium we need, and we do not need more.

The committee emphasizes that, with a few exceptions, all North Americans are receiving enough calcium and vitamin D. Higher levels have not been shown to confer greater benefits, and in fact, they have been linked to other health problems, challenging the concept that “more is better.

In an account of the report in today’s New York Times, Gina Kolata writes that the committee was puzzled about how vitamin D became the hot nutrient of the year.  Sales rose 82% from 2008 to 2009.

Some of this surely had to do with testing.  A method for testing existed, so doctors used it.  The test, however, looked at an intermediate in vitamin D synthesis—not at the vitamin itself.  And the test did not have a standard until recently.

And groups like the Vitamin D Council promote much higher intakes of vitamin D supplements.  According to the Council:

Current research has implicated vitamin D deficiency as a major factor in the pathology of at least 17 varieties of cancer as well as heart disease, stroke, hypertension, autoimmune diseases, diabetes, depression, chronic pain, osteoarthritis, osteoporosis, muscle weakness, muscle wasting, birth defects, periodontal disease, and more.

In my San Francisco Chronicle column on this topic a year or so ago, I pointed out that “vitamin” D is not really a vitamin.  It is a hormone. This means that vitamin D supplements are a form of hormone replacement therapy—not necessarily a good idea.

Are vitamin D supplements needed?  Not if you expose your skin to sunlight for a few minutes a day, even in winter.

Update 3:30 p.m.  Final Senate vote postponed until 9:00 a.m. tomorrow!

Today, the Senate is supposed to deal—at last—with S.510, the FDA Food Safety Modernization Act.  Here’s what I’m told is likely to happen (it gives me a headache just to think about it):

• 4:00 pm EST: Senate resumes discussion of S.510.
• 6:30 pm: Senate proceeds to cloture vote on the substitute amendment to S.510.
• Cloture is invoked.
• Post-cloture and upon the use or yielding back of the time allotted in the agreement (1 hour for motions re: 1099 and 4 hours for Coburn motions), the Senate will proceed to vote on the motions in the following order: (1) Johanns (1099 forms–the repeal on a tax burden on small businesses), (2) Baucus (1099 forms), (3) Coburn (earmarks), (4) Coburn (substitute)
• Once those are disposed of, Senate votes on passage of the bill, as amended.
• Observers expect all of this to last well into the night.
• Note: Because all of the amendments are offered as motions to suspend the rules, they require a 2/3rds vote. Final passage requires 51. Cloture requires 60.

And in case your mind is still not made up about how this should go, take a look at today’s commentaries:

Michael Pollan and Eric Schlosser have an op-ed in the New York Times: A Stale Food Fight:

In the last week, agricultural trade groups, from the Produce Marketing Association to the United Egg Producers, have come out against the bill, ostensibly on the grounds that the small farms now partially exempted would pose a food safety threat. (Note that these small farms will continue to be regulated under state and local laws.) It is hard to escape the conclusion that these industry groups never much liked the new rules in the first place. They just didn’t dare come out against them publicly, not when 80 percent of Americans support strengthening the F.D.A.’s authority to regulate food.

And FoodSafetyNews, ever on the job, has three pieces on the bill today (I’m referred to in a couple of them):

• A summary of where the bill stands to date
• An opinion piece by Chuck Jolley demolishing the myths about the bill
• An opinion piece, “Protect Small Farms,” by Roland McReynolds

With a little luck, the Senate will pass the bill tonight, large and small farms will comply with its provisions, and our food supply will be safer as a result.  One can always dream.

Additions: a few more editorial comments, all in favor of passing S.510.

The Sacramento Bee editorial (11-25)

The Minneapolis Star Tribune (11-27)

The Bemidji (MN) Pioneer (11-28)

The Baltimore Sun (11-28 and the 29^th in some editions)

New York Times editorial (11-16)

USA Today (11-23)

Las Vegas Sun (11-23)

Lexington (KY) Herald Leader (11-23)

Focus Features has been asking people in the food community for five recommendations of films they particularly like.   Here are my picks:

Folks From the Food Movement on Sustainable Cinema: Marion Nestle

By administrator November 19, 2010

Marion Nestle: I would not pick Thanksgiving as the optimal time to watch films about food production systems but I’ve chosen films—documentaries and not—that tell stories worth watching for their entertainment value as well as for their more serious messages.

1. |Super Size Me

I have to begin with this one because it’s my screen debut! I appear in it for ten seconds as a talking head defining calories, among other things. This is Morgan Spurlock’s account of a month-long experiment eating nothing else but food from McDonald’s. Spurlock’s depiction of his 25-pound weight gain is not only a commentary on the role of fast food in America’s obesity epidemic, but also a fast-moving and riveting examination of the corporate side of our country’s love affair with burgers and fries.

2. |King Corn

It’s hard to imagine that a story about how two guys grow corn on one acre in Iowa could be so utterly delightful, but Ian Cheney and Curt Ellis have a sense of humor along with plenty of imaginative smarts. This is the best place to see how industrial farming really works. Spoiler alert: I love the scenes in which they start with corn and cook up a batch of high fructose corn syrup, take two minutes to plant their acre, and discover that their acre is eligible for corn subsidies. This film may be a documentary about corn production and harvesting, but it is a pleasure to sit through again and again.

3. |Food, Inc.

This is the most commercially successful of the recent documentaries exposing the evils of the industrial food system, and for good reason. Starting with the splendid opening credits, it is wonderfully directed (by Robbie Kenner) and narrated by food movement superstars, Michael Pollan and Eric Schlosser. Even for people who know something about industrial food production, the film breaks new ground. For me, the most moving episode was the 4:00 a.m. immigration raid on hapless Mexican workers at a Smithfield packing plant. The film tells stories ranging from the infuriating (seed patenting) to the heartbreaking (the lethal effects of toxic E. coli on a small child). Best, it is a rousing call to action. Join the food movement!

4. |Tampopo

Who knew that the Japanese made spaghetti Westerns? As it happens, they do or at least used to. A lone cowboy rides into town and teaches a young woman how to cook noodles so delicious that customers line up to eat them. The message? It takes hard work to develop real cooking skills but the results are worth it. The hero may ride off into the sunset, but this film carries its lessons lightly and is marvelous cross-cultural fun.

5. |La Grande Bouffe and Ratatouille

I can’t decide between these two films for my number five. La Grande Bouffe (The Great Binge, in my translation) is a French film of the 1970s that doesn’t seem to show up in food film festivals. It deserves a revival, not least for its splendid cast: Marcello Mastroianni, Philippe Noiret, and Ugo Tognazzi, among others. As I recall, the guys spend a weekend gorging on food and sex, giving entirely new meaning to the pleasure of food in general, and to fruit tarts in particular.

Ratatouille is, of course, about a cartoon mouse who yearns to become a chef, and does so with great panache. The film is surprisingly faithful to the day-to-day reality (OK, exaggerated) of professional kitchens, and the extraordinary amount of teamwork involved in producing superb restaurant food. It may not make anyone want to become a chef, but it gives plenty of insight into what it takes to do so.