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A number of trends are coming together to suggest that obesity restrictions—advertising curbs, taxes and bans—will be front burner issues in 2013.
The facts are well known. The average American consumes too many calories and exercises too little. We are one of the fattest nations on earth and the rise in childhood obesity will be a major factor in diabetes, heart disease and other illness in decades to come.
The food industry is one of the largest and most powerful industries in the world. So, it’s no wonder that the debate over what children eat and drink, and what should or can be done about it, has escalated into a political battle. It’s the culmination of a long-term trend.
The growing food technology sector, which encompasses processors as varied as packaged salad makers, fresh frozen seafood distributors, cereal producers, ice cream manufacturers and snack and soda companies, fancies itself as on the cutting edge of science.
But while food technologists see themselves as innovators on behalf of the human palate, to many journalists and public interest groups, the food industry isn’t an innovator but the enemy. They caricature the processed food sector as Big Food, and that’s not meant as a compliment. Think “Big Tobacco.”
For years, tort lawyers, egged on by non-profit (NGO) advocacy groups, blamed processed foods for their client’s obesity, claiming that fast foods were inherently unhealthy. For the most part, the suits didn’t gain much traction. Judges almost always dismissed them, concluding that most reasonable people would not confuse burger joints with natural food restaurants, and therefore they could not blame their ill health and poor food selections on anyone but themselves.
The discourse took on a more confrontational tone in 2003 after the Surgeon General’s report on obesity, which advocated community-based action. The renewed public debate was inflamed by the release of a slew of documentaries and books (Super Size Me, Fast Food Nation, Fat Land, Omnivore’s Dilemma, Food, Inc.) which demonized processed foods and glorified “natural” and “organic” alternatives.
The current popular narrative pushed hard by foodie activists and advocacy groups accuses ‘Big Food’ of conspiring to create food addicts who crave processed products that are fun to eat but nutritionally deficient. The public is portrayed as innocent and helpless victims, and eating is likened to “compulsive gambling and substance abuse.” The food industry, which offers a stunning array of selections from natural to processed and from abundant to boutique, is caricatured as an ‘enemy of the people’.
That wide canvas provides plenty of deep pockets for NGOs and tort lawyers to target, from processors to food marketers to grocery chains and insurance companies, and even to the states and the federal government, which could be on the legal hook if a wayward court should decide that fast foods represent “crimes against the people.”
What I call the NGO-Media-Class Action Bar Complex began to coalesce in 2009, which led to the creation of the Interagency Working Group on Foods Marketed to Children. Under intense pressure from activist groups, Congress authorized a task force to evaluate food advertising and suggest possible restrictions for children 2 to 17.
Their recommendations were both comprehensive and radical. Foods that were advertised would have to meet strict dietary guidelines, which would require the reformulation of thousands of products, including 88 of the top 100 most popular foods. For example, Honey Nut Cheerios, Cheez-It, Animal Crackers, peanut-butter-and-jelly sandwiches and even bottled water couldn’t be marketed or advertised to children as they are now because they do not contribute “significantly” to nutritional requirements.
The food industry pushed backed. There were concerns about limiting commercial free speech, but also more pragmatic considerations, particularly the enormous cost of reformulations—and in some cases the necessary junking of major brands whose unique taste profile could not be preserved—set off against the debatable benefits.
While consumers may intuitively believe that advertising to children and obesity are joined at the hip, the most comprehensive studies addressing that question are far from definitive. The Institute of Medicine has found strong evidence that TV watching is associated with child obesity. But researchers have found no proof that obesity is directly caused by ads for sweets or junk food.
“Despite media claims to the contrary, “writes David Ashton, a cardiovascular epidemiologist at the Imperial College School of Medicine in London, “there is no good evidence that advertising has a substantial influence on children’s food consumption and, consequently, no reason to believe that a complete ban on advertising would have any useful impact on childhood obesity rates.”
The restrictions would also not affect the private label brands—products sold at Kroger’s, Safeway and the like at lower prices but with no advertising.
What will the Obama administration do?
The IAWG has been digesting public comments since it released its recommendations last April. The panel’s final recommendations are required by legislation to be reviewed by OIRA (Office of Information and Regulatory Affairs) to ensure that any restrictions on commercial free speech would advance the public interest. But that legislative mandate expires at the end of March, which thrills many food activists who are afraid that cost-benefit analysis might lead to a watering down or scuttling of the recommendations. If this requirement is not extended, Congress could impose these controversial guidelines, setting up a Battle Royale.
Also in the wings is the fate of the Healthy Hunger-Free Kids Ac. The US Department of Agriculture is preparing updated nutritional standards for foods and drinks that can be sold at schools. It is expected to target sports drinks, milk that is not fat-free and flavored milk. To what degree they will depend upon self-regulation—which in this case, appears to be working—is unclear, but NGOs and the tort machine are clearly pushing for a far more aggressive approach.
The White House, or rather the first, lady, has so far taken a cooperative rather than confrontational approach on this issue. Two years ago, Michelle Obama launched her signature “Let’s Move” campaign, telling a grocery trade group that food manufacturers needed to “step it up” to protect children. “We need you not just to tweak around the edges but to entirely rethink the products that you’re offering, the information that you provide about these products and how you market those products to our children.”
The campaign has focused on encouraging healthier foods, a balanced diet and exercise, which are the solutions favored by industry and sometimes mocked by activists group as toothless. There are conflicting reports about whether the administration might move from jawboning to a more activist regulatory stance.
Can self-regulation work?
But there is no question that the more cooperative strategy has had impact. Whether out of fear of regulation or in recognition of marketing opportunities, the industry is responding to public concerns. In recent years, they’ve added many more nutritious alternatives and become leaders in the movement for ‘food transparency,’ and the largest companies have voluntarily reduced food ads on TV aimed at young children.
The switch to lower calorie drinks accelerated significantly after the signing in 2006 of the School Beverage Guidelines, drafted in a joint effort by major beverage companies, former President Bill Clinton and health advocacy groups. It is enforced through independent monitoring, outlined calorie content and serving sizes.
According to a newly released study in the American Journal of Public Health, economists monitoring the beverage industry’s promise to self-regulate and get sodas and other sugary drinks out of schools found that companies shipped 90% fewer calories to schools in 2010, compared with 2004, and reduced shipments of full-calorie sodas by 97%. Coca Cola illustrates the dramatic changes in its product mix. Thirty years ago, only 3% of its sodas were zero calories; now it’s 60%.
“It’s made a big difference,” said Elaine D. Kolish, the initiative director and a former head of enforcement at the Federal Trade Commission. More than 100 products have been changed or created to cut salt, fat, sugar or calories, she said. Tougher self-regulation is promised by 2014.
Robert Wescott, president of Keybridge Research, a private economic research firm in Washington that was selected to independently monitor the effort said the landscape has shifted dramatically and that industry self-regulation can work.
“Is it possible that somewhere in America there’s a Coke machine in a hallway where I can put a buck in and get a Coke? Absolutely,” Wescott said. But he added that there has been no “backsliding” by food companies since 2010. “In the main, yes,” he said, the industry is doing would it committed to do.
The catchphrase behind these industry initiated voluntary efforts is “energy balance,” which means, simply, that ‘energy in’ should equal ‘energy out’. Proponents believe regulating behavior as instinctual as eating is fruitless, encouraging self-education tied to self-regulation. Food manufacturers are asked to voluntarily reduce exposure to children of certain foods, with the commitments independently monitored.
Some measure of whether these voluntary efforts are real or just hype will come clear by mid year when the Health Weight Commitment Foundation releases its first report on its pledge to reduce annual calories by 1.5 trillion by the end of 2015, and sustain that level. The HWCF is a voluntary group of 16 of the country’s best-known brands representing 25% of the market share in the food and beverage industry. Its efforts are being independently vetted by the Robert Woods Johnson Foundation.
Public rejects “fat taxes”
Activists are unlikely to be content with measured actions even though more interventionist policies have often proven unworkable or even counterproductive, damaging the broader public health agenda in the process. The battle of food taxes highlights that tension. In New York City, for example, the Board of Health adopted Mayor Michael Bloomberg’s proposal to ban supersized sodas and sugary drinks. A growing number of European countries, including Denmark, Hungary, Finland and France have imposed taxes on what they consider unhealthy foods, from butter to cupcakes to soda.
Although taxes of so-called fatty foots appeals to some politicians as a stealth way to raise government revenue in a struggling economy, there are some signs of pushback from a public weary of the tax-regulation-litigation cycle. In November, voters in two California cities defeated ballot initiatives that would have imposed taxes on sugar-sweetened beverages. While these types of taxes are nicknamed “soda taxes,” the initiatives would have applied to all non-alcoholic beverages with caloric sweeteners, including flavored milk, milk drinks and drinkable yogurt.
The tax and regulate movement has hit headwinds even in supposedly foodie-obsessed Europe. Last year, Denmark instituted a tax, which reaches as high as 9 percent for some products, and affected a wide variety of popular foods, including butter, cheese and cream—anything containing more than 23% saturated fat. It set off an outcry among small businesses and consumers, which led to the recent Danish government decision to terminate the tax, effective January 1. Danish lawmakers also decided against creating a similar “sugar tax” that would have hiked the cost of products with higher levels of sugar.
Why the populist revolt in Denmark and elsewhere? Activists blame industry lobbying. That’s certainly played a role considering the deep pockets of the food industry. But there is no question that anti-tax campaigns resonated with the general public wary of government intervention in so personal a matter as food choices. Consumers are creative.
Echoing the public discussion in the United States, the Danish tax was aimed to encourage a change in diets. There is evidence the law did affect buying habits, but not in the way activists or researchers had predicted. Many Danes switched instead to lower-cost house brands but not healthier alternatives, and others crossed borders into Germany or other countries with lower food taxes to purchase their favorite products.
Obesity certainly raises legitimate public policy and health issues. How best to respond is a far pricklier question. Should individuals be required under the force of law to modify his or her eating habits because of the associated public costs, such as a spike in weight-related diseases? What’s next in the United States?
Over the past two years more than two dozen states and seven cities that have considered “soda taxes” to discourage consumption of sugary drinks has seen the efforts defeated or dropped because of public ambivalence. All signs point to renewed activism in 2013. That may not necessarily be good news for a country trying to slim its collective waist.
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