Search results: david ludwig

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!

Harvard pediatrician David Ludwig and Tufts professor Alice Lichtenstein team up in a JAMA commentary with a novel idea.  How about re-introducing home economics into the school curriculum!

Girls and boys should be taught the basic principles they will need to feed themselves and their families within the current food environment: a version of hunting and gathering for the 21st century. Through a combination of pragmatic instruction, field trips, and demonstrations, this curriculum would aim to transform meal preparation from an intimidating chore into a manageable and rewarding pursuit.

…Obesity presently costs society almost $150 billion annually in increased health care expenditures. The personal and economic toll of this epidemic will only increase as this generation of adolescents develops weight-related complications such as type 2 diabetes earlier in life than ever before. From this perspective, providing a mandatory food preparation curriculum to students throughout the country may be among the best investments society could make.

I’ve been collecting items sent to me this week about government actions at the local, state, and national level.  Here’s the weekend round up.

Santa Clara County, California, Board of Supervisors bans toys in kids meals: On April 27, the San Jose Mercury News announced that this county, clearly at the vanguard of actions to help prevent childhood obesity, passed a groundbreaking law banning toys in kids’ meals that do not meet minimal nutrition standards (the very ones I talked about in a previous post).  Companies can still give out toys in meals, as long as the meals meet those standards.  What an excellent idea.  Let’s hope this idea catches on in other communities.

Here’s the press release, a a fact sheet on childhood obesity, and remarks by the president of the board of supervisors, along with recommendations from the local public health agency.  Thanks to Michele Simon for the documents.

Connecticut state legislature plays computer games: This photo, attributed to the Associated Press, arrived from Michelle Futrell.  I worried that it might be Photoshopped.  Whether it is or not, it is flying around the Internet, in versions that clearly identify each of hard-at-play legislators.

The Federal Trade Commission (FTC) teaches kids about marketing: The FTC regulates advertising, including food advertising, and it must be getting increasingly concerned about the effects of marketing on kids.  To counter some of these effects, it has created a website, Admongo.gov, an interactive site to teach kids about advertising.  After playing these games, the FTC wants kids to be able to answer these questions:

• Who is responsible for the ad?
• What is the ad actually saying?
• What does the ad want me to do?

The New York Times concludes: “Perhaps the effort comes not a moment too soon. Adweek devotes this week’s issue to “Kids” and “How the industry is striving to conquer this coveted market.” Thanks to Lisa Young for sending the links.

The FDA asks for comments on front-of-package (FOP) labeling: Patricia Kuntze, a consumer affairs advisor at the FDA sends the April 28 press release and the April 29 Federal Register notice announcing the FDA’s call for public comment on this topic.  The agency particularly wants data on:

• The extent to which consumers notice, use, and understand FOP nutrition symbols or shelf tags
• Results of research examining the effectiveness of various FOP approaches
• Graphic design, marketing, and advertising that will help consumers understand nutrition information
• The extent to which FOP labeling influences food manufacturers’ decisions about the contents of their products

The goal, says the FDA, is to make “calorie and nutrition information available to consumers in ways that will help them choose foods for more healthful diets – an effort that has taken on special importance, given the prevalence of obesity and diet-related diseases in the U.S. and of increasingly busy lifestyles that demand quick, nutritious food.”

Here is a speech on the topic by FDA Commissioner Margaret A. Hamburg, M.D.  For information about how to submit comments, click here. To submit comments, refer to docket FDA-2010-N-0210 and click here. You have until July 28 to do it.

Public comment, of course, includes the food industry and a FoodNavigator call for industry comment cites my recent commentary in JAMA with David Ludwig.  I’m glad food industry people are reading it and I hope the FDA does too.

The White House equivocates on organics: What’s going on with the White House garden?  Is it organic or not?   Michael Pollan forwards this item from the Associated Press:

Assistant White House Chef Sam Kass, an old friend of President Barack Obama’s who oversees the garden, says labeling the crops “organic” isn’t the point, even though the White House only uses natural, not synthetic, fertilizers and pesticides.

“To come out and say (organic) is the one and only way, which is how this would be interpreted, doesn’t make any sense,” Kass said Monday as he walked among the garden’s newly planted broccoli, rhubarb, carrots and spinach. “This is not about getting into all that. This is about kids.”

Uh oh.  Has “Organic” become the new O-word?  Surely, the White House is not secretly pouring herbicides and pesticides over its garden vegetables.  If not, are we hearing a small indication of big agribusiness pushback?

In the latest issue of the American Journal of Public Health, Derek Yach and his colleagues at PepsiCo in Purchase, NY, say yes, it can, in answer to the question they pose in their article, “Can the food industry help tackle the growing global burden of undernutrition?”

If we are to successfully combat global undernutrition, efforts must be sustained by multiple stakeholders from various sectors. We believe that trust is built through industry’s demonstration of practical actions that improve health, and recognition of these actions by governments and nongovernmental organizations. Only through new and innovative public–private sector partnerships can we truly make a difference.

Three international public health leaders counter with no, it can’t, in an article entitled “The snack attack.”  They point to irreconcilable differences between the the goals of private industry and public health:

The problem lies with food, drink, and associated companies whose profits depend on products that damage public health and that also have damaging social, economic, and environmental impacts. These most of all include transnational companies, of which PepsiCo is one. To succeed, big business must sustain and increase annual turnover, profit, and share price…We suggest that public health professionals see papers such as those of Yach et al. as part of the marketing strategies of transnational food and drink companies…The privatization of public health does not work.

This argument reminds me of the editorial that David Ludwig and I wrote for JAMA late in 2008: “Can the food industry play a constructive role in the obesity epidemic?”  We concluded:

With respect to obesity, the food industry has acted at times constructively, at times outrageously. But inferences from any one action miss a fundamental point: in a market-driven economy, industry tends to act opportunistically in the interests of maximizing profit. Problems arise when society fails to perceive this situation accurately.

While visionary CEOs and enlightened food company cultures may exist, society cannot depend on them to address obesity voluntarily, any more than it can base national strategies to reduce highway fatalities and global warming solely on the goodwill of the automobile industry. Rather, appropriate checks and balances are needed to align the financial interests of the food industry with the goals of public health.

PepsiCo owns Pepsi Cola, of course, but also Gatorade, Frito-Lay snacks, and Aquafina water, among many other brands.  According to Advertising Age (June 22, 2009), PepsiCo earned $43 billion in worldwide sales in 2008. Its product-specific advertising expenditures in 2008, just for “measured media” (meaning run through advertising agencies) were, for example:

• $162 million for Gatorade
• $145 million for Pepsi Cola
• $27 million for Tostitos
• $14 million for Doritos
• $11 million for Fritos.

These figures, staggering as they may be, do not include the amounts Pepsi spends on lobbying, supporting the American Beverage Association’s efforts to fight soda taxes, funding medical research at Yale, or marketing to children and adults in India and other developing countries, as previously discussed on this site.

Is corporate “social responsibility” really responsible?  Or is it just marketing?  And what should be the checks and balances?  You decide.

Added April 17: This comes from a former employee of PepsiCo who asks that I post this anonymously:

I think you probably know that the “marketing dollars,” the share (ads/direct marketing), of companies like Pepsico are only a fraction of what are their actually marketing/promotions budgets.  Many years ago, PepsiCo made a conscious effort to redefine/shift budgets to what is called promotional spending from traditional marketing spending.  In doing so though, they keep the control and allocation of the funds in the hands of the marketing teams.

For Pepsi I know that the $145 million you mention is probably only 25% of what Pepsi “internally” considers consumer marketing spending.  For example, direct to retails “incentive” bonus funds are given for moving volume — those funds are almost entirely funneled into the retails increasing consumer marketing to their direct customers.  There are even examples where they can hide 10’s of millions of dollars at a time by linking event sponsorships (stadiums, etc.) to retailer agreements, thus moving those dollars to long-term “capital expenditures.”  I would guess that for Pepsi alone that that $145 million could be as much as a billion a year for direct and indirect consumer marketing spending.

It is not just obscene how much gets spent to increase volume… since, for companies like PepsiCo, Coke, etc.  Volume is the only way they generate higher profit to their shareholders.  As you say, to expect a corporation to do things for the good of the consumer just shows a misunderstanding of their primary function when they are a for-profit entity.

I have an editorial with David Ludwig in today’s JAMA (Journal of the American Medical Association. NOTE: scroll down to find it).  We titled it, “Front-of-package food labels: public health or propaganda?”

We think it’s time for the FDA to consider getting rid of all of them.  How’s that for an idea?

Here’s what Forbes thinks about it.

And FoodNavigator.com.

Update, February 25: the Los Angeles Times wrote about it.

For years, some people – not me – have been saying that eating one extra 50-calorie cookie a day can make you put on 5 pounds per year.  This calculation comes from basic math: if about 3500 extra calories make you put on a pound of body fat, then 50 times 365 is 18,250 extra calories which, divided by 3500,  equals about 5 pounds.

This never made sense to me.  It is impossible to know how much you are eating each day within 50 calories let alone how many calories you are using in daily activities.  Yet people used to be able to keep their weight steady without thinking about calories at all.

This is because the body regulates weight and can easily compensate for such small changes in calorie intake or output with small changes in metabolic rate.  It takes more calories to move heavier bodies, and fewer to move lighter ones.

For years, I’ve been thinking that it must take a lot more than 50 extra calories a day – I guessed hundreds –  to make people gain weight.  I thought this for two reasons:

First reason: Portion sizes have increased greatly in recent years, and larger portions have more calories.  Sometimes, they have a lot more.  Foods eaten outside the home often have more calories in them than anyone suspects.

That’s why calorie labeling matters.  Labeling may underestimate the actual calories present in a food according to Tufts researchers (see this week’s Time for commentary and also see the industry response).  But even so, a new study shows that labeling encourages people to cut down on food intake, at least at Starbucks.  Make that two new studies: one from the Rudd Center at Yale comes to the same conclusion.

Second reason: I keep hearing from pediatricians who treat overweight kids that they have kids in their practices who drink from 1,000 to 2,000 calories a day from sodas alone.  I can’t judge whether these figures are correct or not, but several different kinds of studies suggest that many people today are eating a lot more calories than their counterparts of 25 years ago.

Now Martin Katan and David Ludwig have done the actual calculations in a paper in this week’s JAMA titled “Extra calories cause weight gain–but how much?”  Their conservative estimate is that it would take an excess of 370 calories to gain 35 pounds in 28 years.   To become obese in 25 years, you would need to eat 680 calories a day more than you expended.

To become 58 pounds overweight at age 17, they predict that a child would need to overconsume 700 to 1,000 calories a day from the age of 5 or so.

These figures are quite consistent with what those pediatricians were telling me.  By other estimates, average caloric intake has increased by 200-500 calories a day since the early 1980s, along with a 700 calorie-a-day rise in the availability of energy in the food supply (from 3,200 to 3,900 per day per capita).

As Katan and Ludwig conclude:

small changes in lifestyle would have a minor effect on obesity prevention.  Walking an extra mile a day expends, roughly an additional 60 kcal compared with resting – equal to the energy in a small cookie.  Physiological considerations suggest that the apparent energy imbalance for much of the US population is 5- to 10-fold greater, far beyond the ability of most individuals to address on a personal level.  Rather, an effective public health approach to obesity prevention will require fundamental changes in the food supply and the social infrastructure.

This is because on the personal level, prevention of weight gain means eating hundreds of calories a day less.  Moving more, useful as it is, will not do the trick unless people eat less as well.

On the societal level, we need measures to make it easier for people to eat less.

I can think of a bunch of examples.  You?

The research demonstrating the not-so-great effects of sodas just pours in, as it were.  The Robert Wood Johnson Foundation has two new research reports, one on justification for taxation of soft drinks, and the other on the negative effects of soft drinks on kids’ health.

David Ludwig writes in JAMA that artificially sweetened drinks are unlikely to help the situation.  They just make people want sweeter foods.

And the New York City Health Department has put its anti-soda campaign online.   This is its controversial “drinking fat” campaign designed to make the point that excess calories from sugary soft drinks will put on the pounds.  Why controversial?  Take a look at the cute guy demonstrating the drinking-fat point on the YouTube video.

What’s your take on this?

For starters, calorie labeling in California is having a big effect – on the companies, if not customers.  The chains are madly cutting down on calories.  The most impressive example is a Macaroni Grill 1,270-calorie scallop-and-spinach salad (I can’t even imagine how they did this), which is now just a normal 390.

Center for Science in the Public Interest (CSPI) has a website devoted exclusively to calorie and other menu labeling initiatives where it tracks the legislation year by year and posts a handy map of what states and cities are doing on this issue.

And the latest issue of JAMA has a commentary by David Ludwig and Kelly Brownell about why it’s important to get calorie labeling in place even before we can get evidence for its effectiveness” For some of the most important public health problems today, society does not have the luxury to await scientific certainty…For restaurant calorie labeling regulation, there is a clear rationale for action.”

As to how well the system is working, try the Wall Street Journal’s take on the accuracy of the calorie counts.  Sigh.  Plenty of work left to do on this one.  But worth doing, no?

July 24 update: The Robert Wood Johnson Foundation is keeping track of the research along with policy implications.  The bottom line to date?  Menu labeling is having some effects, but there’s more work to do.