Currently browsing posts about: FOP(Front-of-Package)Labels

The Grocery Manufacturers Association (GMA) and the Food Marketing Institute (FMI) are announcing their “Nutrition Keys” plan for front-of-pack (FOP) nutrition labels.  Their member companies have agreed to display calories and percent of saturated fat, trans fat, and sodium, per serving, on the front of product packages.

So far, so good.

But they also will be displaying up to eight “positives,” nutrients that are supposed to be good for you.  They say they will be using some kind of design similar to what some companies are using now, only with “positives” added.

Note: this illustration comes from Mars (the company, not the planet).  It is not what GMA and FMI will necessarily use.

Let me repeat what I wrote last October when GMA and FMI first said they intended to do this:

Forget the consumer-friendly rhetoric.

There is only one explanation for this move: heading off the FDA’s Front-of-Package (FOP) labeling initiatives.

In October, the Institute of Medicine (IOM) released the first of its FDA-sponsored reports on FOP labels.  Based on research on consumer understanding of food labels and other considerations, the IOM committee strongly recommended that FOP symbols only list calories, sodium, trans fat, and saturated fat.

This led William Neuman of the New York Times to summarize the IOM approach as: “Tell us how your products are bad for us.”

GMA and FMI would much rather label their products with all the things that are good about them, like added vitamins, omega-3s, and fiber.  If they have to do negatives, they prefer “no trans fat” or “no cholesterol.”

What they especially do not want is for the FDA to impose “traffic-light” symbols.  These U.K. symbols, you may recall from previous posts, discourage consumers from buying anything labeled in red, and were so strongly opposed by the food industry that they caused the undoing of the British Food Standards Agency.

GMA and FMI, no doubt, are hoping the same thing will happen to the FDA.

At the moment, the FDA is waiting for the IOM’s second report.  This one, due in a few months, will advise the FDA about what to do about FOP labels—again based on research.  Couldn’t GMA and FMI wait?

From what I’ve been hearing, GMA and FMI could not care less about the IOM or FDA.  This is what they had to do to get member companies to agree.  They say the new labels will go on about 70% of branded products by next year.  They also say they will spend $50 million on public education.

How this will play out in practice remains to be seen.  You can bet that plenty of highly processed foods will qualify for “positives,” just like they did with the industry-initiated Smart Choices logo, may it rest in peace.

As I said in October: This move is all the evidence the FDA needs for mandatory FOP labels.   GMA and FMI have just demonstrated that the food industry will not willingly label its processed foods in ways that help the public make healthier food choices.

Let’s hope the GMA/FMI scheme flunks the laugh test and arouses the interest of city and state attorneys general—just as the Smart Choices program did.

The official announcement is coming this afternoon.  Stay tuned.

Addition: Scott Obenshaw, Director of Communications for GMA files the following clarification:

1.)     In addition to the information regarding calories, saturated fat, sodium and total sugars content, the Nutrition Keys icon on some products will display information about two “nutrients to encourage.”  The two nutrients to encourage that may appear on some products as part of the Nutrition Keys icon must come from the following list: potassium, fiber, vitamin A, vitamin C, vitamin D, calcium, iron and also protein.  These “nutrients to encourage” can only be placed on a package if the product has more than 10% of the daily value per serving of the nutrient and meets the FDA requirements for a “good source” nutrient content claim.

2.)     Transfat is not part of the label – only calories, saturated fat, sodium and total sugars content.

Let’s give GMA and FMI lots of credit for replacing the IOM’s recommendation for trans fat with sugars.  Trans fats are heading out of the food supply and consumers want to know about sugars.  So that’s an improvement.  And two positives might not overwhelm the so-called negatives.  But I’m eager to see what the design really looks like and will report as soon as it is released.

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!

In a online press release yesterday, the Grocery Manufacturing Association (GMA) and Food Marketing Institute (FMI) announced a new labeling initiative for their member companies:

America’s leading food and beverage manufacturers and retailers joined forces today in the fight against obesity and announced their commitment to develop a new front-of-package nutrition labeling system. The unprecedented consumer initiative will make it easier for busy consumers to make informed choices when they shop….America’s food and beverage manufacturers and retailers have agreed to support the change to their product labels with a $50 million consumer education campaign.

Forget the consumer-friendly rhetoric.

There is only one explanation for this move: heading off the FDA’s Front-of-Package (FOP) labeling initiatives.

Only two weeks ago, the Institute of Medicine released its first FDA-sponsored FOP labeling report.  The IOM committee recommended that FOP symbols only mention calories, sodium, trans fat, and saturated fat.  This led William Neuman of the New York Times to summarize its approach as: “Tell us how your products are bad for us.”

GMA and FMI would much rather label their products with all the things that are good about them, like added vitamins, omega-3s, and fiber.  If they must do negatives, they prefer “no trans fat” or “no cholesterol.”

What they especially do not want the FDA to impose is “traffic-light” symbols.  These U.K. symbols, you may recall from previous posts, discourage consumers from buying anything labeled in red, and were so strongly opposed by the food industry that they caused the undoing of the British Food Standards Agency.

GMA and FMI, no doubt, are hoping the same thing will happen to our FDA.

In today’s New York Times, Mr. Neuman quotes a GMA representative:

Mary Sophos, an executive vice president for the group, said the label would not characterize a food’s overall nutritional qualities as good or bad — like the traffic signal label in Great Britain that displays a red circle for less healthy nutrient levels and a green circle for healthier levels.

“We’re not going to get into interpreting elements of the food,” Ms. Sophos said.

This move is all the evidence the FDA needs for mandatory FOP labels.   GMA and FMI have just demonstrated that the food industry will not willingly label its processed foods in ways that help the public make healthier food choices.

Let’s hope the GMA/FMI scheme goes the way of the ill-fated, not-so-Smart Choices program.

FDA: you should be outraged by this move.  Say so!

The Institute of Medicine (IOM) released its first Front-of-Package (FOP) labeling report this morning. Phase I is a tough, detailed examination of about 20 of the existing FOP schemes along with some recommendations about what such schemes ought to do.

FOP labels are those little spots, check marks, and tokens that are all over food packages these days and that are supposed to indicate that the product is especially healthy for you.  They may seem utterly trivial, but they are of desperate importance to food companies.  FOP labels sell food products.  Food marketers love them and need them.  The FDA worries that having so many of them confuses the public, and that the schemes are based on criteria that serve industry purposes more than to promote public health.

As the IOM press release explains:

A multitude of nutrition rating, or guidance, systems have been developed by food manufacturers, government agencies, nutrition groups, and others in recent years with the intent of helping consumers quickly compare products’ nutritional attributes and make healthier choices. Ratings are typically communicated to shoppers through symbols placed prominently on food packaging, usually on the front, or on retail shelf tags. Unlike the Nutrition Facts panel, these rating systems and symbols are unregulated, and different systems focus on different nutrients. The variation may confuse consumers, and questions have been raised about the systems’ underlying nutritional criteria.

The committee did a terrific analysis of current FOP schemes.  My favorite parts are its

• Clear, concise histories of nutrition and FOP labeling (students: take note!)
• Detailed evaluation of the strengths (few) and weaknesses (many) of the existing schemes
• Demonstration of the inconsistent results of applying the schemes to specific foods

The report gives examples of the inconsistent results of three scoring schemes: Guiding Stars, NRFI [Nutrient-Rich Foods Index], and Nu-Val

• Instant oatmeal received 3 Guiding Stars, and scores of 87 by NRFI and 39 by NuVal.
• Non-instant oatmeal received 2 Guiding Stars, and scores of 22 by NRFI and 57 by NuVal
• Toasted oat cereal received 2 Guiding Stars, and scores of 84 by NRFI and 37 by NuVal
• Fat free milk, 1% fat milk, and fat free plain yogurt received 3 Guiding Stars, but fat free milk was scored 56 by NRFI and 91 by NuVal; 1% fat milk was scored 30 by NRFI and 81 by NuVal, and fat free plain yogurt was scored 43 by NRFI and 96 by NuVal.

The committee’ key recommendation: FOP labels should deal with just four nutrients: calories, saturated fat, trans fat, and sodium.

These nutrients, says the committee, “are routinely overconsumed and associated most strongly with diet-related health problems affecting many Americans, including obesity, heart disease, high blood pressure, Type 2 diabetes, and certain types of cancer.”

Comment: Trans fat seems unnecessary here.  It is already out of most packaged foods.   Or maybe the committee thinks that leaving it off will give food companies permission to put hydrogenated oils back in?

The committee chose not to add sugars to this list:

The committee concurred that both added and naturally occurring sugars contribute to the caloric content of foods and beverages and overconsumption of high-calorie products can lead to obesity.  Highlighting calories per serving in nutrition rating systems would address this concern.

Comment: I think consumers want to know about added sugars in food products.  I certainly do.

Phase II comes next

It will examine designs and look at consumer understanding of the labels, and will discuss “the pros and cons of having a single, standardized front-label food guidance system that is regulated by the Food and Drug Administration.”

Presumably, Phase II will deal with questions that are not addressed in the Phase I report:

• Will this scheme supersede all of the other labeling systems currently on food packages?
• Will it be voluntary or mandatory?  For all food products, or just selected ones?
• If the scheme is voluntary, why would food companies choose to use it since it mostly highlights the negatives—the nutrients to be avoided?
• How will it affect the nutrient-content claims currently on food packages?  (Examples: “Contains 8 vitamins!”  “100% vitamin C!” “High fiber!”)
• How will it affect shelf-labeling schemes such as the Nu-Val system used at Price Chopper supermarkets and the ANDI system used by Whole Foods?

FOP labels are about marketing, not health

This scheme, like the many others developed by food companies singly or together, is designed to help the public decide whether one highly processed, packaged food product is nutritionally better than another.

As I have discussed many times on this site, this approach raises a philosophical question: Is a slightly “better for you” food product necessarily a good choice?

I hope the committee will ponder this and some of my other questions as it enters Phase II.

Addendum: I gather from what I’ve heard about the press conference this morning that some of my questions were answered.  The FOP proposal will not affect nutrient content claims on the front of packages.  Companies will still be able to proclaim the nutritional benefits of their products in words and banners.  They just won’t be able to use them in whatever symbol gets chosen.  So what difference will this report make?  Not much, alas, except to get rid of the silly symbols in use right now.

Update, October 14:  William Neuman’s account of this event in the New York Times starts with this: “Tell us how your products are bad for us.”

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?

Food companies interested in doing something meaningful to prevent childhood obesity are in a bind.  Preventing obesity usually means staying active; eating real, not processed, foods; and reserving soft drinks and juice drinks for special occasions.  None of this is good for the processed food business.  At best, food and beverage companies can make their products a bit less junky and back off from marketing to children.  In return, they can use the small changes they make for marketing purposes.

Perhaps as a result of Michelle Obama’s campaign (see yesterday’s post), companies are falling all over themselves – and with much fanfare – to tweak their products.

GROCERY MANUFACTURERS ASSOCIATION (GMA):  By all reports, GMA members applauded Mrs. Obama’s remarks.  GMA says its member companies are already doing what she asked.

Parke Wilde, a professor at the Tufts School of Nutrition (and food policy blogger), gave a talk at that meeting in a session dismissingly titled,  “The New Foodism.”  His comment:

I enjoyed hearing Michelle Obama’s talk, which was well written and delivered and fairly forceful in places. In my afternoon panel, I said grocery manufacturers would find some threatening themes in books and documentaries promoting local and organic and sustainable food, but that there is also much of substance and value. Then, Susan Borra [Edelman Public Relations] and Sally Squires [Powell Tate Public Relations] in the next session said that grocery manufacturers are frequent subjects of unfair criticism and have nothing to apologize for.

Take that, you new foodists!

MARS must think it knows more than the FDA about how to label food packages.  It is developing its own version of front-of-package labels. It volunteered to put calories on the front of its candies; its multi-pack candies ay 210 calories per serving on the front.  That number, however, remains on the back of the small candy store packs.  Mars’ new labeling plans use the complex scheme used in Europe.  I’m guessing this is a bold attempt to head off what it thinks the FDA might do – traffic lights.

KRAFT announces that it is voluntarily reducing the sodium in its foods by 10% by 2012.  Kraft’s Macaroni & Cheese (SpongeBob package) has 580 mg sodium per serving and there are two servings in one of those small boxes: 1160 in total.  A 10% reduction will bring it down to 1050 mg within two years.  The upper recommended limit for an adult is 2300 mg/day.

PEPSICO announced “a voluntary policy to stop sales of full-sugar soft drinks to primary and secondary schools worldwide by 2012.”  In a press statement, the Yale Rudd Center quotes Kelly Brownell saying that “tobacco companies were notorious for counteracting declining sales in the U.S. with exploitation of markets elsewhere, particularly in developing countries:”

it will be important to monitor whether the mere presence of beverage companies in schools increases demand for sugared beverages through branding, even if full-sugar beverages themselves are unavailable…This appears to be a good faith effort from a progressive company and I hope other beverage companies follow their lead…this announcement definitely represents progress [Note: see clarification at end of post].

According to PepsiCo, this new policy brings its international actions in line with what it is already doing in the U.S.  The policy itself is voluntary, uses words like “encourage,” assures schools that the company is not telling them what to do, and won’t be fully implemented until 2010.  It keeps vending machines in schools and still allows for plenty of branded sugary drinks: Gatorade, juice drinks, and sweetened milk for example.

Could any of this have anything to do with Kelly Brownell’s forceful endorsement of soda taxes?

LOBBYING: The Center for Responsive Politics says food companies spent big money on lobbying last year, and notes an enormous increase in the amount spent by the American Beverage Association (soda taxes, anyone?).  For example:

How to view all this?  I see the company promises as useful first steps.  But how about the basic philosophical question we “new foodists” love to ask: “is a better-for-you junk food a good choice?”

OK.  We have the Public Relations.  Now let’s see what these companies really will do.

Addendum: I received a note clarifying Kelly Brownell’s role in the PepsiCo press release from Rebecca Gertsmark Oren,Communications Director,The Rudd Center for Food Policy and Obesity,Yale University:

The Rudd Center did not work with PepsiCo on their initiative to stop sales of full-sugar beverages in schools worldwide, nor did we jointly issue a press release. A statement released by Kelly Brownell in response to PepsiCo’s announcement was simply intended to commend what appears to be a step in the right direction. As Kelly’s statement also mentioned, there is still plenty of work to be done. It’s also worth noting that the Rudd Center does not take funding from industry.