Search results: the corporation not me

In the vote-a-rama of the last couple of days, the Senate passed these farm bill amendments with roll-call votes (other amendments were passed or rejected by voice votes):

• No. 2439; To limit the amount of premium subsidy provided by the Federal Crop Insurance Corporation on behalf of any person or legal entity with an average adjusted gross income in excess of $750,000 with a delayed application of the limitation until completion of a study on the effects of the limitation.
• No. 2438; To establish highly erodible land and wetland conservation compliance requirements for the Federal crop insurance program.
• No. 2363 As Modified; To ensure that extras in film and television who bring personal, common domesticated household pets do not face unnecessary regulations and to prohibit attendance at an animal fighting venture.
• No. 2295; To increase the amounts authorized to be appropriated for the designation of treatment areas.
•  No. 2454; To prohibit assistance to North Korea under title II of the Food for Peace Act unless the President issues a national interest waiver.
•  No. 2293; To limit subsidies for millionaires.
• No. 2382; To require the Federal Crop Insurance Corporation to provide crop insurance for organic crops under similar terms and conditions to crop insurance provided for other crops.
• No. 2309; To require a study into the feasibility of an insurance product that covers food safety recalls. No. 2238; To require more frequent dairy reporting.
• No. 2370; To encourage the purchase of pulse crop products for school meals programs.
• No. 2445; To strengthen rural communities and foster the next generation of farmers and ranchers.
• No. 2167; To provide payment limitations for marketing loan gains and loan deficiency payments.
• No. 2190 As Modified; To require Federal milk marketing order reform.

I won’t go through all of the rejected amendments, but did notice this one:

• No. 2289; To reduce funding for the market access program and to prohibit the use of funds for reality television shows, wine tastings, animal spa products, and cat or dog food.

Now why would the Senate vote to retain market access program funds for such things?   Taxpayer support of promotion of cat and dog food?  How did we miss that one when when my co-author and I were writing Feed Your Pet Right, our analysis of the pet food industry.

And wine tastings, anyone?

But to get to a more important rejection: Senator Gillibrand’s amendment to protect SNAP from budget cuts:

• No. 2156 As Modified; To strike a reduction in the supplemental nutrition assistance program and increase funding for the fresh fruit and vegetable program, with an offset that limits crop insurance reimbursements to providers.

The rejection of this proposal gets us into issues related to the cozy arrangement between anti-hunger advocates and pro-commodity advocates to vote for each other’s funding (translation: logrolling).   Does this rejection mean that the arrangement is breaking down under budget-cutting pressures?  Or does it simply reflect an agreement that a reduction in SNAP is the quid pro quo for removing direct payments and setting some caps on commodity benefits?

Senator Ron Johnson (Rep-Wisconsin) has an interesting take on the logrolling questions.  He filed a motion to send the farm bill back to committee to divide it into two separate bills, one for food assistance and the other for farm supports.

When Congress debates legislation to spend nearly $1 trillion, we need to be honest with the American people about what we’re doing. This isn’t a farm bill. It’s a welfare bill…We should be clear about how much we are spending and why we are spending it – and we ought to give Senators the opportunity for a straight up or down vote on two different proposals that have little in common.

…If Senators want to spend $800 billion on Food Stamps, or nearly $200 billion on farm programs, let them say so with a clean vote – rather than combining them into an all-or-nothing package that passes with a minimum of debate and scrutiny.

Want to take bets on how far his motion gets? [Not far: the Senate rejected the motion this morning, 59 to 40]

The Senate is voting on more amendments today.  More to come.

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 Affairs: Government 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

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.

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.

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.

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?

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!

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?