by Marion Nestle

Search results: the corporation not me

Feb 9 2012

Should the First Amendment protect the marketing of junk foods to kids?

For some time now, I’ve been arguing that legal scholars ought to be challenging the contention of food corporations that the First Amendment gives them the right to market foods any way they like, even to kids.

I simply cannot believe that the Founding Fathers of the United States intended the First Amendment for this purpose.

In December 2010, I urged public interest lawyers to examine current food marketing practices in the light of the First Amendment.  I am pleased to see that they are now doing so.

Samantha Graff of the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) forwards two co-authored articles published this month:

Health AffairsGovernment Can Regulate Food Advertising to Children Because Cognitive Research Shows It Is Inherently Misleading, by Samantha Graff, Dale Kunkel, and Seth E. Mermin.

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children. Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation.

However, case law establishes that the First Amendment does not protect “inherently misleading” commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age twelve should be considered beyond the scope of constitutional protection.

American Journal of Public Health: Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, by Jennifer L. Harris and Samantha K. Graff.

In the United States, one third of children and adolescents are overweight or obese, yet food and beverage companies continue to target them with advertising for products that contribute to this obesity crisis.

When government restrictions on such advertising are proposed, the constitutional commercial speech doctrine is often invoked as a barrier to action. We explore incongruities between the legal justifications for the commercial speech doctrine and the psychological research on how food advertising affects young people.

These papers are a great start to the conversation, as was a previous contribution from these authors: A Legal Primer for the Obesity Prevention Movement, American Journal of Public Health, 2009.

First Amendment scholars: weigh in, please.

And while pondering these questions, take a look at Raj Patel’s piece in The Atlantic, “Abolish the food industry.”  In his view, the First Amendment issue is a no brainer:

I side with the American Psychological Association in thinking that advertising to children is unconscionable. Rather than dwell on the First Amendment issue, which strikes me as an easy case to make, I think it’s worth addressing a deeper question underlying the San Francisco cigarette-in-pharmacy ban: Why allow an industry that profits from the sale of unhealthy food at all?

Additions, February 14: Michele Simon sends links to additional information about this issue:

http://events.lls.edu/past/food-marketing-lr.html

http://www.appetiteforprofit.com/2011/01/27/why-the-happy-meal-is-already-illegal/

http://www.yaleruddcenter.org/resources/upload/docs/what/law/FTCFoodMarketingTV_JLME_3.10.pdf

 

Dec 12 2011

Food companies expand sales in emerging markets

Publicly traded companies cannot simply make a profit.  They must grow profits and report growth to Wall Street every 90 days.  This requirement is tough on all corporations, but especially tough on those selling food.  People can only eat so much.

To expand sales, food companies desperately seek new markets.  Last week, The Guardian and the Wall Street Journal described how food corporations are marketing processed foods to the poorest inhabitants of developing countries.

According to The Guardian,

Nestlé is using a floating supermarket to take its products to remote communities in the Amazon. Unilever has a small army of door-to-door vendors selling to low-income villages in India and west and east Africa. The brewer SABMiller has developed cheap beers in some African countries as part of a “price ladder” to its premium lager brands, and, as a leading Coca-Cola bottler and distributor, is aiming to double fizzy drinks sales in South African townships.

Last year 39% of acquisition deals by consumer goods companies were in emerging markets, compared with just 1% in 2008, according to the Grocer’s OC&C Global 50 league table.

The Wall Street Journal follows a salesman in South Africa who is “digging for his gold” in poor neighborhoods:

While Nestlé’s usual sales staff focus on filling shelves of big supermarkets, Mr. Mugwambane and 80 other salespeople like him hunt for tiny shops across South Africa that will buy such Nestlé products as baby food and nondairy creamers, often in single-serving packages that appeal to Africa’s price-sensitive customers.

…Nestlé says it expects 45% of its sales to come from emerging markets by 2020, up from roughly 30% now.

From the standpoint of food companies, says The Guardian, this is about “finding innovative ways to give isolated people the kind of choices the rich have enjoyed for years and are providing valuable jobs and incomes to some of the most marginalised.”

Baby food and nondairy creamers?

Maybe selling items like these brings jobs to some people, but it also brings nutrient-poor diets, obesity, and the resulting chronic diseases to those populations.

The ultimate costs will be high.

Sep 8 2011

No Surprise: Corporate responsibility works better for corporations than public health

A new report just out from the Children’s Food Campaign of Sustain, a food advocacy group in the UK, says that its government’s Responsibility Deal with the food industry about marketing practices is good for food companies but not so effective for public health.

 

The report finds that the UK government’s Responsibility Deal is “likely to fail because industry commitments are weak, voluntary, and ignored by numerous big food companies.”

The UK Coalition Government launched its Public Health Responsibility Deal in March 2011. This covered five areas—food, alcohol, physical activity, health in the workplace, and behavior change.

The core of the Deal is voluntary partnership with industry.

Health Secretary Andrew Lansley promised industry that the Deal would be “built on social responsibility, not state regulation.”   Instead, government would promote personal responsibility for health choices and voluntary agreements with companies.

Predictably, the report lists 33 national food companies that have failed to commit to one or more voluntary pledges on:

  • ‘out of home’ calorie labelling (including Costa, Pizza Express and Subway)
  • salt reduction (including Burger King, KFC, McDonald’s, Pizza Hut and Wimpy)
  • artificial trans fat removal (including Harvester, Wetherspoons and Sodexo)

It also lists 13 well known companies, including Birds Eye, Budgens, Domino’s Pizza and Nandos that failed to sign up to any health pledges at all.

The campaign concludes: “food pledges are underwhelming.”

So much for voluntary partnerships and alliances.  Nobody should be surprised.

 

May 5 2011

Future of Food: the food movement goes mainstream

I’m just back from yesterday’s Future of Food conference in Washington DC.  The event, designed by WashingtonPostLive to “advance the conversation” about sustainable food, featured a glittering array of speakers from many aspects of the food movement. (You can watch the conference on video here, and the Washington Post will have a special section on it next Wednesday, May 11.)

The keynote speaker was none other than the Prince of Wales, fresh from his son’s wedding, who gave a serious and inspriring talk that touched on a great range of pressing issues related to agriculture, health, and the state of the world.

Anyone who has been involved in food issues for any length of time had heard these opinions before and most of the speakers were talking to an audience of a few hundred of the converted.

Nevertheless, I think there’s a story here, and not just because I was on one of the panels.

The story is that the event happened.  The food movement has gone mainstream.

The conference—sponsored by the Washington Post no less—brought in heavy hitters.  These included the Prince of Wales, of course, but also the President of Georgetown University, where the event was held, Eric Schlosser, Wendell Berry, Vandana Shiva, and officials of the FDA and White House.

USDA Secretary Tom Vilsack came, gave thoughtful remarks, and responded with equally thoughtful answers to not-always-friendly comments from the audience.  This was the first time I’d seem him in person and I was impressed by how carefully he has thought through the issues he has to deal with.   Even when I viewed the issues differently,  it seemed clear that his were the result of much intelligent thought and weighing of alternatives.

Montana Senator Jon Tester, of the Tester amendment to the food safety bill, gave closing remarks.

The speakers, young and old, famous and not, made it clear that concerns about the relationship of agriculture to the health of people and the planet were major and were getting focused attention at very high levels.

The food movement can no longer be considered fringe.  It’s mainstream.  Speakers provided much evidence for that from their own points of view.

They said, it’s now time to take the movement to the next step, and that means doing what it takes to become even more powerful.

For example, see if you can find the remarks of Robert Ross, President of the California Endowment and listen to the opening remarks of his speech about the analogy with tobacco and the need to counter the power of food corporations.

My slightly facetious suggestion: if Congress is for sale, let’s buy our own.

Perhaps you have other ideas for expanding the movement and making it more powerful?  Do tell.

 

 

Dec 17 2010

Food corporations buy silence from “partners”

Does corporate social responsibility pay off for corporations?  Indeed it does.  Corporate money buys silence, if nothing else.

William Neuman of the New York Times provides a perfect example of how corporate sponsorship gets precisely what it is intended to do.

In this particular case:

  • The corporations are soda companies, Coke and Pepsi.
  • The social responsibility is donations of millions of dollars to a good cause.
  • The cause is Save the Children, a group devoted to child health and development projects internationally and domestically.
  • The intention?   Get Save the Children to stop advocating in favor of soda taxes.

Not long ago, Save the Children was a strong advocate for soda taxes.  Now it is not.  How come?  The group’s website explains:

about a minute ago we said, Corporate donors support us but do not pressure us. Our focus is children not soda tax policy. Back to saving more children now.

The Times, however, suggests a different explanation:

executives at Save the Children were seeking a major grant from Coca-Cola to help finance the health and education programs that the charity conducts here and abroad, including its work on childhood obesity.The talks with Coke are still going on. But the soda tax work has been stopped….In interviews this month, Carolyn Miles, chief operating officer of Save the Children, said there was no connection between the group’s about-face on soda taxes and the discussions with Coke. A $5 million grant from PepsiCo also had no influence on the decision, she said. Both companies fiercely oppose soda taxes.

A mere coincidence?  I don’t think so.  This is a clear win for soda companies, just as was Coca-Cola’s sponsorship of the educational activities of the American Academy of Family Physicians. You can bet those activities do not involve telling parents not to give sodas to their kids.

Is this a win for Save the Children?  The Times reports that the Robert Wood Johnson Foundation, which funds some of the group’s anti-obesity initiatives, is disappointed.  Evidently, its $3.5 million donation wasn’t enough to convince the group to continue its anti-soda activities.

In the meantime, soda taxes continue to stay on the radar as a weight control strategy.  A new study in the Archives of Internal Medicine suggests that soda taxes could lead to a small but potentially significant weight loss.

According to FoodNavigator’s report about the study,the authors say that applying such taxes throughout the United States could generate a billion dollars or more.  It quotes lead researcher Eric Finkelstein: “Although small, given the rising trend in obesity rates, especially among youth, any strategy that shows even modest weight loss should be considered.”

This kind of study is a challenge to soda companies.  Watch Coke and Pepsi continue donations to charitable and health groups and watch those groups say not one word about the contribution of sodas to obesity.  Cigarettes, anyone?

Dec 7 2010

How about reassessing First Amendment “right” to market junk foods?

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!

Jun 11 2010

Health claims: Should the First Amendment protect bad science?

I keep complaining about the health claims on Enfagrow toddler formula, a sugary product aimed at children from ages one to three:

These claims, for the uninitiated, are a special kind called structure-function.  Congress authorized such claims when it passed the Dietary Supplement Health and Education Act (DSHEA) in 1994.

Structure-function claims do not say that the product can prevent or treat disease. They merely suggest that the product can help in some unspecified way with some structure or function of the body.

When Congress passed DSHEA, it meant the claims to apply to dietary supplements, not foods. Enfagrow is marketed as a food, not a supplement.  It displays a Nutrition Facts label, not a Supplement Facts label.

Over the years, the FDA has issued cease-and-desist warnings about foods that bear structure-function claims.  In recent years, it has simply stated that manufacturers are responsible for ensuring that the claims are “truthful and not misleading.”

One reason for the shift is what the Courts have ruled.  The Courts say that structure-function claims are protected by First Amendment guarantees of free speech.  The most recent case is Alliance for Natural Health USA v. Sebelius. As described in Food Chemical News (June 7), a D.C. District Court judge ruled that the FDA cannot deny health claims that link selenium supplements to reduced risk of several diseases, or require those claims to be qualified, just because the claims lack adequate scientific substantiation.

In other words, supplement makers can say anything they want to about the benefits of their products—on the grounds of free commercial speech—whether or not science backs up the claim.

Recently, the FDA issued a warning letter to Nestlé, the maker of a Juicy Juice product aimed at toddlers, which displays a claim that its content of added omega-3 DHA improves brain development.  The FDA did not take on the claim, even though research seems unlikely to find that such drinks have any special benefits for brain development.  Instead, the FDA focused on a technicality:

The product makes claims such as “no sugar added,” which are not allowed on products intended for children under 2 yrs of age because appropriate dietary levels have not been established for children in this age range.

I’m guessing—this is speculation—that the FDA is reluctant to take on Enfagrow’s brain or immunity claims because Mead-Johnson has deep pockets and might well be willing to fight this one in court as a First Amendment case.

I am not a lawyer but I thought that intent mattered in legal cases.  Surely, the intent of the founding fathers in creating the First Amendment was to protect the right of individual citizens to speak freely about their political and religious beliefs.  Surely, their intent had nothing to do with protecting the rights of supplement, food, and drug corporations to claim benefits for unproven remedies, or to promote sales of sugary foods to babies.

I think it is time to give these First Amendment issues some serious thought.  How about:

  • FDA: Fire those lawyers and hire some who will protect the FDA’s ability to use science in its decisions.
  • FTC: Take a look a the immunity claim on the Enfagrow Vanilla toddler formula, now that the Chocolate is off the market.
  • Legal scholars: Surely there are ways to protect real First Amendment rights while restricting unsubstantiated health claims?

Other ideas are most welcome.  Your thoughts?

Mar 11 2010

Does fighting obesity also mean fighting corporations? So it seems

Corporations go to a lot of trouble to neutralize potential critics.   Recent examples: two co-optations (McDonald’s alliance with Weight Watchers and PepsiCo’s with the Yale School of Medicine) and one aggression (Disney’s forced expulsion of the Center for Commercial-Free Childhood from Harvard).

Co-optation is the winning over or neutralization of opponents by bringing them into the fold.  It works well.

Let’s start with the new partnership between Weight Watchers and McDonald’s.  OK.  This is happening in New Zealand, not here, but it is still a good example.  McDonald’s New Zealand makes three meals that meet criteria for 6 Weight Watchers’ points.    Will Weight Watchers New Zealand suggest that its members cut down on fast food?  Not likely.

Next, Yale.  Yale Medical School proudly announces that PepsiCo has agreed to fund a new fellowship.  This fellowship, which creates a new position in the MD-PhD program, is for doctoral work in nutrition science.

Dr. Robert Alpern, dean and the Ensign Professor at Yale School of Medicine, says of this gift:

PepsiCo’s commitment to improving health through proper nutrition is of great importance to the well-being of people in this country and throughout the world. We are delighted that they are expanding their research in this area and that they have chosen Yale as a partner for this endeavor.

You can’t satirize something like this, but why am I guessing that recipients of this fellowship are unlikely to study the effects of food marketing on obesity or the effects of fructose on metabolism or to advise their overweight patients to cut down on soft drinks? (Thanks to Michele Simon who commented on it on her newly restored blog, Sunday, March 7).

And then there is yesterday’s ugly story in the New York Times about Disney’s retaliation against the Center for Commercial-Free Childhood which had successfully gotten the company to back off on its advertising for Baby Einstein videos.  By all reports, Disney pressured the Harvard unit that housed the Center to evict the Center under truly shameful circumstances.

The moral: if you want to do something to prevent childhood and adult obesity, you are working against the economic interests of corporations that profit from kids eating too much food or watching too much television.  And you must take great care to hold on to your independence.