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?
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 Timesabout 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.
I got a comment this morning from Eric who asks whether I had seen the article in yesterday’s New York Times about Florida’s bailout of Big Sugar in the Everglades. I could hardly miss it. The story starts on the front page and continues over two full inside pages.
Titled “Deal to save Everglades may help sugar firm,” the article explains how Florida politicians engineered a taxpayer-supported buyout of United States Sugar for nearly $2 billion in 2008, ostensibly to restore a waterway through the Everglades. Now, it seems, the restoration projects have stopped for lack of money and U.S. Sugar gets to keep using the land.
U.S. Sugar is or was the largest sugar producer in Florida. Founded by Charles Stewart Mott in 1931, it owned mills and a railroad as well as land.
Sugar policy, as I explained in a post last September, is special. Alone among commodities, it is supported by an arcane system of quotas and tariffs designed to ensure that domestic sugar producers get prices for their crops that are higher than values on the world market. The result? Taxpayers pay more for sugar than they should.
I suppose I could argue that higher prices for sugar are a good thing. High prices discourage consumption. Fortunately or unfortunately (depending on how you look at it), sugar prices are not high enough to do that.
So chalk this one up to politics in action, replete with lobbyists, lawyers, and corporate heads with cozy ties to government officials. As is all too often the case, the corporation came out ahead. Whether the Everglades will ever benefit remains to be seen.
What is likely to be the effect of yesterday’s Supreme Court decision on food politics? Nothing good.
The decision to overturn limits on corporate campaign contributions will affect every aspect of society, food included. I have long argued that campaign contributions are one of two major sources of corruption in government (the other is the way Wall Street requires corporations to report growth every 90 days).
If we want our congressional representatives to make decisions in the public interest, their election campaigns must be publicly funded. When corporations fund campaigns, representatives make decisions in the corporate interest. It’s that simple.
Those of us who care about creating a good, clean, fair, and sustainable food system will have to work harder now. But I can’t think of any more important work to do to protect our democratic institutions.
The Federal Trade Commission is the third agency dealing with food policies, this time advertising. As I’m fond of saying, the FTC is not exactly a consumer protection agency. Its main purpose is to make sure that businesses stay competitive. In 1978, under the leadership of Michael Pertschuk, the FTC made a valiant attempt to regulate food marketing to children. That disaster, which I have discussed in previous posts, kept the FTC from doing anything about marketing to kids – until recently.
On December 15, it is holding a forum on food marketing to children in Washington, DC. Here’s the agenda and information about registration. They will also do a webcast linked to that site.
But that’s not all the FTC is doing. It had so much fun trying to get information from food companies about their marketing-to-kids practices that it is trying the same thing with quick service and fast food restaurants. The FTC says it is seeking “Information from those companies concerning, among other things, their marketing activities and expenditures targeted to children and adolescents and nutritional information about the companies’ food and beverage products marketed to children and adolescents.” This sounds easy, if a bit confusing, but my guess is that the FTC will have to pull teeth to get it.
In the meantime, a few comments have already been filed in response to the notice. The ones from industry are predictable: too expensive! Too difficult! My guess is that they have this information readily available but are embarrassed to reveal it. Why? It undoubtedly will show that the companies spend the most money on the junkiest (and most profitable) products.
Michael Pertschuk, by the way, is still going strong. In June, he wrote an article on the FTC for The Nation. His article has much to say about the way the FTC is operating these days and is well worth a look. As he explains, the FTC was
created in 1914 during the Progressive Era, [and] was endowed with a potent authority for promoting competition and consumer protection that it has never fully used. This includes investigative authority over virtually all businesses, backed by subpoena power and the capacity to demand reports of data that corporations would rather withhold from public view…For the first time in decades, the Senate and House authorizing and oversight committees and the judiciary committees are pressing the agency to act more aggressively on the consumer-protection and competition fronts and are prepared, as needed, to strengthen its enforcement powers….But Congress needs to take action to unleash the FTC’s full potential. First, it remains a small agency with broad and complex responsibilities and cumbersome procedural burdens, especially in rule-making. Here, the FTC’s champions in Congress can make certain that Congress supplies more resources and streamlines the FTC’s authority. The agency also has a chronic problem of setting priorities: wherever it turns, there are corporate malefactors, large and small, deserving of prosecution.
But read the whole thing and see whether you think his optimism is justified. Better yet, go to the workshop on the 15th!
This page is somewhat disorganized in that I now put occasional print, audio, and video interviews, which used to be separated, together by year. The section at the very end is called Controversies; it is where I post letters from critics. Scroll down to find whatever you are looking for. Media interviews and reviews for specific books are on the page tabs for that book. For old podcasts and videos of presentations, look under Appearances and scroll down for Past Appearances; in recent years, I’ve been putting them in the chronological list here.
Interviews, media appearances, and lectures (the ones for which I have links)
Nov 28 This video about sugar in soft drinks was just posted on Twitter (X) but its YouTube listing says 7 years ago, when I was on a Fulbright in Mexico in 2017.
Jan 17 Podcast interview with Kathlyn Carney, Connecting the Dots. Lisen on Spotify or Apple Podcast
Jan 16 LA Times guide to Japanese subscription snack boxes (Video Part I). Part II is Jan 23 (same clip?)
Jan 14 The Franklin Institute’s Ben Franklin Birthday celebration. My talk comes first. Others are from Eric Oberhalter and honoree Wendell Berry. Use passcode $H81iALu
Jan 15 Two short answers to questions at FAO’s Regional Office in Santiago, Chile. Video 1: on what governments can do about childhood obesity. Video 2: on food choices in an unhealthy food environment.
July 5 Goldberg R. Food Citizenship: Food System Advocates in an Era of Distrust. Oxford University Press. Chapter 1. Health and Nutrition: Interview with Marion Nestle:1-13. Video online
July Carter J. Interview with Marion Nestle. In: Food for Thought: Feeding the People, Protecting the Planet. Aspenia [Aspen Institute Italia] 2015;67:101-105.
July Carter J. Intervista a Marion Nestle. Come cambiano le politiche alimentary. In: Fame Zero: Rinascimento agricolo. Aspenia [Revista di Aspen Institute Italia] 2015;69:198-202.
January 10 Video interview on Star Talk, co-hosts Neil DeGrasse Tyson and Eugene Mirman, with Anthony Bourdain, about the science of cooking (sort of).
May 21 Print interview with Revital Federbush for an Israeli women’s magazine, mostly about dairy foods I’m told (it’s in Hebrew, which I cannot read, alas).
November 19 Interview with Al Jazeera for a Fault Line program on “Fast food, fat profits: obesity in America (my 10 seconds starts at about minute 15).
September 16 Speech at Columbia University conference on Global Food Systems: Their Impact on Nutrition and Health for All on panel on Advanced Technologies, Food Safety and the Role of Local and Organic Food Production (video)
November 12 Panel discussion on the farm bill, Wagner School of Public Service, Puck Building (Lafayette at Houston), 2nd floor. Here is Wild Green Yonder’s take on it.
February 6, 2008 Biologique Foods radio, two podcast interviews with TJ Harrington in Bloomington, MN, one on food politics and the other on what’s in your food.
Interview with Laura Flinders (and Arun Gupta and Peter Hoffman), Grit TV. It’s on how to eat well without going broke, and starts with a Monty Python clip on Spam 11/26/08
September 5, 2007 Scientific American Podcast with Steve Mirsky. Because I am a Paulette Goddard professor at NYU, he sends along an article he wrote about Einstein’s experience with the gorgeous movie star.
NPR Science Friday, panel on the farm bill with Michael Pollan and Sandor Ellix Katz 8/10/07
Are you responsible for your own weight? Balko R. Pro: Absolutely. Government has no business interfering with what you eat. Brownell K, Nestle M. Con: Not if Blaming the Victim Is Just an Excuse to Let Industry off the Hook. Time June 7, 2004:113.
Bottled water is the target of environmental campaigns in the U.K as well as the U.S. My namesake, the Nestlé Corporation, appears to be under particular attack. Acording to the British government, tap water “requires 300 times less energy than bottled water and does not create bottled packaging waste.” I wonder how the company plans to rebut that argument.
I did not do a careful comparison. The main difference seems to be that the earlier version had this useful graphic about MAHA’s strategic intentions.
All of this may change when the final report is released, but here are my initial thoughts on its food sections.
First, the background: The first report, despite the hallucinated references, was a strong indictment of this country’s neglect of the health of our children. It stated the problems eloquently. It promised that the second report would state policies to address those problems.
As for this report: No such luck.
It states intentions, but when it comes to policy, it has one strong, overall message: more research needed.
Regulate? Not a chance, except for the long overdue closure of the GRAS loophole (which lets corporations decide for themselves whether chemical additives are safe).
Everything else is waffle words: explore, coordinate, partner, prioritize, develop, or work toward.”
One good thing: the report mentions marketing to children, but only to “explore development of industry guidelines.” Nothing about regulation. This is too little too late. We know what food marketing does to kids. It’s way past time to stop it.
A few comments on specific issues mentioned.
“USDA will prioritize precision nutrition research…” USDA? NIH is already doing that, and it is the antithesis of public health research, the kind that really will make Americans healthier.
The report emphasizes color and other chemical additives (we knew it would), a definition (not regulation) of ultra-processed foods, and a potential front-of-pack label (unspecified).
It says it will modernize infant formula (really? how?), and will work to increase breastfeeding (again, how?).
And then there are the contradictions:
Improve hospital food, but the administration is taking money away from hospitals.
Teach doctors about nutrition (how?)
Prioritize “whole healthy foods” in nutrition assistance programs (but cut SNAP and WIC)
Expand EFNEP (but eliminate SNAP-ED)
Promote healthy meals in child care settings (also defunded)
Encourage grocery stores in low-income areas (how?)
How are they going to do this? It doesn’t say.
Are there any teeth behind it? It doesn’t look like this is anything more than voluntary (and we know how voluntary works with the food industry; it doesn’t). None of this says how or has any teeth behind it.
The report…seems to twist itself into knots to make it clear that it will not be infringing upon food companies….But we also need to judge the administration by what it does, not what it says. And the administration’s attacks on SNAP, Medicaid, the health insurance exchanges, and the FDA and USDA workforces are poised to make America sicker, hungrier, and more at risk from unsafe food.
