Cross-posted on Forbes.com’s “On the Docket.”
For the past month, Americans interested in the making of law and policy have understandably focused their attention on the congressional elections. Makes sense, since Congress is where our most important national policies are debated and laws are made, right? Not always.
For some time now, the process of making rules for millions of American consumers, employees, shareholders, etc. has increasingly deviated from the approach we learned in Civics 101. Consider what has been developing in the so-called war on obesity, a well-intentioned effort which is unfortunately being used by some activists in and outside government as a platform to demonize businesses and the products they offer. Driven by the paternalistic belief that consumers can’t manage their own diets, governments at the state, county, and even city level are taking restrictive action, while federal agencies are quietly planning larger scale moves that will impact our freedom to choose what we eat and drink.
Step Away From That Margarine! Late last month, a small barbecue stand in Baltimore (ironically called “Healthy Choices”) run by a Korean immigrant was fined $100 for using a margarine that ran afoul of the city’s ban on trans-fats. According to this report, the owner had been warned previously, but the replacement he chose for the offending margarine (at twice the cost) wasn’t in compliance. The ban, which of course doesn’t reduce the amounts of trans-fat in store-bought products, is similar to ones enacted in Montgomery County, Maryland, Philadelphia, and New York City, whose leaders were similarly desperate to be seen “doing something” about obesity. Will city ordinances setting acceptable levels of salt and refined sugar be next?
An important aside: National food producers and restaurants, no doubt, have already taken note that Baltimore’s Health Commissioner at the time of the trans-fat ban passage was Dr. Joshua Sharfstein, now Principal Deputy Commissioner of the federal Food & Drug Administration (FDA).
Back Off From That Happy Meal! Inspired by national nanny organization Center for Science in the Public Interest’s (CSPI) threat to sue McDonald’s for its “unfair, deceptive, and illegal” offering of toys in children’s meals, San Francisco’s Board of Supervisors city council last week voted to ban the use of prizes in meals which didn’t meet certain nutritional criteria. In support of the ordinance, a CSPI lawyer rather morosely said, “McDonald’s is the stranger in the playground handing out candy to children. It’s a creepy and predatory practice that warrants an injunction.” Such hyperbole is sadly common when spoken in support of laws such that which was passed in San Francisco. Is there any credible scientific support demonstrating a link between the availability of toys and kids’ desire to have those meals, or proof that kids are eating those types of meals to such an extreme extent as to lead to dangerous weight gain? No proof, no problem, just demonize, regulate, and sue.
Stop! That Cereal Is Loaded. For several years now, some food producers have been supplementing the government-mandated back or side panel labels with front-of-package panels that highlight certain nutritional information. That such labeling is being done voluntarily, isn’t standardized, and stresses positive data all drew the ire of “consumer advocates,” and the attention of FDA, which is now pursuing a front-of-package labeling initiative. FDA is sponsoring a two-part study by the federal Institute of Medicine to provide a sheen of scientific legitimacy to their drive toward regulation. The first part of the study, not surprisingly, concludes that calories, saturated fat, trans fat, and sodium should be included in any effective front-of-package label. Also, in a statement that consumers should find insulting, the study also criticized the front-labeling of fiber because it ”may encourage consumers to eat foods that have had fiber added rather than increasing their consumption of naturally occurring, plant-based foods.” In other words, more information on things that are good for you is in fact bad for you.
The food industry trade group announced in late October that it would be jointly creating a more standardized front-of-package label. Food nanny activists’ reaction was predictable. New York University Professor Marion Nestle and CSPI’s Michael Jacobson declared that any industry-run system is inherently suspect and insufficient. They would prefer graphic labels akin to what the United Kingdom’s Food Standards Agency requires – alarming red, yellow, and green “traffic lights.” Such a Scarlet Letter scheme is more likely to stigmatize labeled products and scare off consumers than it is to relate useful information, making it especially vulnerable to First Amendment challenges. Imposing stop signs on product packaging is, under Supreme Court commercial speech precedents, far more extensive than necessary to achieve the government’s goal of providing standardized nutritional data.
Another aside: The Institute of Medicine (IOM) seems to be regulators’ and activists’ favorite government entity for quietly advancing their paternalistic agendas. As a memo from law firm Covington & Burling relates, IOM’s Standing Committee on Childhood Obesity Prevention held a workshop on October 21 examining “legal strategies” to reducing obesity. David Vladeck, a Naderite activist turned regulator from the Federal Trade Commission, warned businesses that the Commission could rely upon its controversial “unfairness” jurisdiction to sue food marketers without having to prove a causal link between marketing and obesity. Other speakers included CSPI’s Michael Jacobson on a panel entitled “Using Litigation to Make Change,” and Vermont Attorney General William Sorrell, who floated the possibility that his state might pursue new taxes on sugar-sweetened beverages.