Currently browsing posts about: Labels

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!

My monthly (first Sunday) San Francisco Chronicle column deals with the quite astonishingly complex and consumer unfriendly rules for labeling alcohol beverages, in answer to this question:

Q: I like to read nutritional information on the foods and beverages I consume. Why is there no such information on alcoholic beverages?

A: You want to know the alcohol, calories and ingredients in your wine, beer and liquor? Good luck.

Some alcohol drinks label some of this, but so inconsistently that it’s hard to make sense of it. The alcohol beverage industry prefers that you not think about what’s in their products. And Congress does not want alcohol marketed as nutritious.

Remember Prohibition? This was the era from 1920 to 1933 when alcohol could not be made, transported or sold in America. When it ended, Congress passed the Alcohol Administration Act of 1935, still in force. Recognizing the tax potential of alcohol beverages, Congress assigned their regulation to the Treasury Department. Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) sets rules for alcohol labels.

Absurd as it may seem, the labeling rules differ for wine, beer and distilled spirits. Substances to which people might be sensitive, such as sulfites and yellow No. 5, must be labeled, but TTB considers “ingredients” only to mean carbohydrate, protein and fat. If a label states calories, it must also state those ingredients, even though wine and hard liquor hardly have any (beer has some carbohydrate).

Listing other ingredients is voluntary and some winemakers are placing ingredient lists on labels – mostly grapes, but sometimes oak products.

Concentrate hard on what comes next. Labels of distilled spirits must state percent alcohol. They may list calories (but usually don’t). Wine label rules depend on percent alcohol. Wines containing 14 percent alcohol or more must display alcohol content; they may list calories (but don’t).

Wines from 7 to 14 percent must list alcohol and may list calories, unless they are labeled “light” or “table,” in which case they do not have to list either.

And get this: Wines with less than 7 percent alcohol are regulated by the Food and Drug Administration, not TTB. They must display Nutrition Facts labels with calories, nutrients and actual ingredients. They may disclose percent alcohol, and some do.

The 1935 act prohibited beer labels from disclosing alcohol content, lest manufacturers compete to sell “stronger” products, but the ban was successfully challenged in court.

Now beer labels may state percent alcohol, and when it helps sales, they do. The “energy-booster” beers associated with college drinking freely display alcohol content. Their labels also boast of caffeine, ginseng and taurine, ingredients regulated by the FDA as food additives.

Calories on beer labels are equally inconsistent. Regular beer may state calories. Light beer must do so.

I’m not done yet. If a beer is made from a grain other than malted barley, it is FDA-regulated. It must display Nutrition Facts; it may display alcohol.

Strangest of all, regulations differ from one state to another and state rules sometimes can supersede those of TTB, but not those of FDA.

Let’s credit the advocacy group Center for Science in the Public Interest with trying to fix this absurd, consumer-unfriendly situation. For decades, CSPI has petitioned Treasury to require disclosure of alcohol, calories and contents on alcohol labels.

In the early 2000s, CSPI and a coalition of 70 consumer and health groups petitioned TTB to require Alcohol Facts labels listing those and other relevant details. The alcohol industry countered with a proposal for voluntary labeling. At the height of the low-carbohydrate diet craze, makers of distilled spirits were eager to market them as “no-carb.”

In 2004, TTB issued guidance to industry on how to voluntarily label products with a Serving Facts panel. In 2007, in response to public comment, TTB finally proposed mandatory labeling rules for alcohol beverages. These called for a Serving Facts panel listing alcohol, calories, carbohydrate, protein and fat in all beverages under TTB jurisdiction.

But lest these requirements appear too onerous, TTB agreed to allow companies to leave percent alcohol off the Serving Facts panel, as long as it appeared someplace else on the label. In response, CSPI insisted that TTB delete the unnecessary fat and protein listings, include alcohol on the panel and list all actual ingredients, along with a warning statement about excess alcohol consumption.

To date, TTB has neither responded to CSPI nor issued final rules. Its proposals apparently got caught in election cycles and remain in limbo. CSPI, in cutting budgets, closed its alcohol policy center last year.

What to do? If you want to know calories, you mostly have to guess. Standard servings of wine (5 ounces), regular beer (12 ounces) and spirits (1.5 ounces) each provide about 100 alcohol calories. Carbohydrates add 20 or more to wine, and 50 or so to beer. Yes, those calories count, and more and larger drinks have more calories.

For unlabeled alcohol, sweeteners and other food additives, you just have to hope for the best. Or you can write your congressional representatives to get TTB moving on alcohol labeling.

This article appeared on page K – 4 of the San Francisco Chronicle

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!

I have now seen the talking points used by FDA senior scientific advisor Jessica Leighton in her speech to the Food Policy Conference last week.  These are indeed quite different from those I reported a few days ago.  Here is my understanding of what she actually said.

Dr. Leighton reported that the FDA was working on a number of food labeling initiatives:

• Updating elements of the Nutrition Facts Panel such as calories, serving sizes, and Daily Values.
• Identifying a front-of-pack nutrition label based on sound nutrition science and easily noticed, understood and used by consumers.
• Implementing the new federal menu labeling law with regulations to be released by March 2011.

She emphasized that the focus of FDA’s public health efforts is to address chronic disease and obesity problems by making the best information available in the best way to help consumers make healthy food choices.

FDA seeks input.  To that end, it is releasing solicitations and draft guidance documents.

FDA especially seeks research that can help the agency determine the best way its initiatives can improve consumer food behavior.

These goals make sense to me, and I’m glad to have them clarified.

Footnote: Food Chemical News has just filed a correction to its original story:

Food Chemical News, in our Sept. 27 weekly issue, incorrectly identifies a flow-chart containing a list of dates for proposing food labeling-related proposals and final rules as coming from Jessica Leighton, a FDA senior science advisor. The document was actually provided by the Center for Science in the Public Interest and drafted with the assistance and/or blessing of as many as 12 consumer and health-oriented trade groups as a recommended approach for the FDA to follow, clarifies Bruce Silverglade, CSPI’s director of legal affairs.

The one-page document was handed out during a session at the 33^rd National Food Policy Conference, an event jointly sponsored by the Consumer Federation of American and Grocery Manufacturers Association, in Washington, D.C.  Leighton, Silverglade and three others were presenters in the session. The one page sheet, entitled “Timetable for Food Labeling Reform and Need for Concurrent FDA/USDA Action,” does not identify a source.

Silverglade, who takes credit for having the document given to attendees at the meeting, says it originally was provided as part of a three-page letter sent to Martha Coven, special assistant to the President for the Domestic Policy Council, and Zeke Emanuel, senior advisor in the Office of Management and Budget (see FCN Aug. 9, Page 1). The American Cancer Society, American Medical Association, Consumers Union and American Heart Association were among the many groups to sign the letter.

The editorial staff of Food Chemical News apologizes for the error.

Jessica Leighton, the FDA senior science advisory whose speech was quoted in Food Chemical News (I wrote about this yesterday) writes to tell me that she has been badly misquoted about the FDA’s plans for food labels.

The reporter, she says, appears to have mixed up a variety of talks or questions from the audience to the panel.

I said nothing about caffeine or “natural.”  I don’t remember mentioning the percent of key ingredients in parentheses after the ingredient name either.    I also said we are looking into added sugars but did not say we are doing anything about them.

I am taking her word for it and have taken down the post.  Apologies to all.

As City University Professor Tim Lang explained (see yesterday’s post), which government is in power makes a big difference.

The new UK government is not wasting a minute before caving in to food industry demands.

First the government promised the food industry no new regulations.  Now it is eliminating the Food Standards Agency (FSA), which is more or less the equivalent of our FDA.  How come?

Would you believe front-of-package food labels?

According to the account in The Guardian (UK), this is happening because the FSA “fought a running battle with industry over the introduction of colour-coded ‘traffic light’ warnings for groceries, TV dinners and snacks.”

Rest in Peace

The FSA has led calls for the Europe-wide introduction of a traffic light system that required food companies to label the front of their products with red, amber or green symbols to denote the amounts of fat, saturated fat, salt and sugar contained per serving.   The agency…said this was the best way to allow Europe’s increasingly obese shoppers to make informed decisions about the food they bought.

The British Medical Association, British Dietetic Association and British Heart Foundation are among health groups that supported the scheme…But traffic light labelling was buried by the European parliament last month, when MEPs backed a rival system favoured by multinationals such as Nestlé, Kraft and Danone.

The industry advocated “guideline daily amounts”, a system that listed percentages of recommended daily allowances included in each serving.

The food industry spent an estimated £830m on lobbying to stop the traffic lights scheme, which enjoyed a level of popularity with consumers because it was relatively easy to understand.

Note: That’s $1.247 billion to defeat traffic lights.  Why?  Because consumers know they aren’t supposed to buy products labeled with red dots.  The food industry much prefers the incomprehensible Guideline Daily Amounts like the ones that Kellogg and General Mills were quick to put on their cereal boxes.

Getting rid of traffic lights was not enough.  The food industry is so angry with FSA over the traffic light proposal that it lobbied the new government to axe the agency.

Mission accomplished (or maybe not).

Addition: Even responsible food industry commentators think this is a bad idea:

As regards the proposed splitting up of the FSA – we only have to look to the number of food safety scares in the US to see the consequences of its fragmented food safety approach.

So instead of putting the food watchdog to sleep, shouldn’t the UK government instead give it more teeth?

Update, July 14: Tim Lang and Geof Rayner did an editorial on this for the BMJ:

Mr Lansley’s thoughts imply that a combination of corporate and individual responsibility will do the trick. This is risky thinking. The Healthy Weight, Healthy Lives programme he inherits did not underplay the personal responsibility that individuals have for their weight, and it recognised that without system-wide action there would be little hope in turning around what already seemed to be the worst public health crisis since HIV….Ironically, by showing his hand early, Mr Lansley has done public health proponents a service. Tackling obesity requires bold efforts to shift how we live, but fiscal constraint should not be an excuse for ideological reassertion.

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.

The current issue of the New England Journal of Medicine has an article from investigators at the University of California San Francisco School of Medicine (where I worked from 1976 to 1986) and Columbia using computer models to predict the effect of relatively small reductions in salt intake on health.  Their conclusion:

Modest reductions in dietary salt could substantially reduce cardiovascular events and medical costs and should be a public health target.

The article also is discussed in an accompanying editorial, and was the topic of a long discussion in the New York Times.

I never know what to make of computer models, but one thing is clear: many people consume two or three times the amount of salt recommended.  It’s hard to avoid doing so.  Australian investigators surveyed processed foods and found more than 60% of them to contain salt above recommended levels.  Ours are unlikely to be any different.

While we are on the subject of salt in processed foods:  Juli Mandel Sloves of Campbell Soup correctly points out that my observation that the company’s kids’ soups contain 480 mg sodium per 4 ounce serving is incorrect.  A serving of soup is 8 ounces, not 4.  I see how I made this mistake.  The label states that a serving is half a cup (4 ounces) and that one serving contains 480 mg sodium.   But you are supposed to dilute what’s in the can with another can of water.  That makes it 480 mg sodium per 8 ounces, the same amount of salt but diluted.  The confusing serving sizes are another good reason to rethink and redesign the Nutrition Facts label.