Nutrition Nannies Win Only 1 of 4 High-Profile Ballot Initiatives

election2014The 2014 election featured four high-profile attempts by the national food nanny movement to impose its agenda through municipal and state ballot initiatives. Voters in Oregon and Colorado rejected mandatory “genetically-modified organism” (GMO) food-labeling measures, while voters in two California cities split on sin taxes for “sugary” drinks.

Food Labeling. Exactly 2/3 of Colorado voters said “no” to the Colorado Right to Know Act. The vote on Oregon’s Measure 92 was considerably closer, with the “no’s” outnumbering the “yes’s” 50.7% to 49.3%. Each initiative trumpeted the superficial appeal of  consumers’ “right-to-know,” and both made the oft-repeated misleading or false claims in their legislative “findings” sections that GMOs in food are unregulated, unsafe, and unhealthy. Much like California’s unsuccessful Proposition 37 initiative, the Oregon and Colorado proposals were riddled with labeling exemptions, including food served at restaurants and alcoholic beverages. Oregon’s proposal would have also unleashed the plaintiffs’ bar on food processors through a “private attorney general” enforcement provision.

Thin Taxes? Two California municipalities, San Francisco and Berkeley, held votes on soda excise taxes. The Berkeley measure, which passed by a large margin, imposes a one-cent-per-fluid-ounce tax on all soda, energy drinks, coffee syrups, sweetened tea, and other packaged “sugary” drinks, while exempting milk and diet soda. The failed San Francisco initiative would have imposed a two-cent-per-fluid-ounce tax on sodas and other sugar-sweetened drinks, including some juices, coffees and flavored waters. It garnered 55% at the polls, but fell short of the 66% “yes” votes needed for measures whose revenues are aimed at a specific purpose. The initiative would have funded children’s nutrition and physical education programs. The revenues from Berkeley’s tax measure will go into the city’s general fund.

The Bigger Picture. Mandatory GMO-labeling proponents have now lost each of their four initiative campaigns. And they have failed in states where one might think voters would overwhelmingly support such progressive measures: California, Washington, Oregon, and Colorado. With 2015 being a slow year for elections, activists will likely turn their attention now to state legislatures. The negative opinions of hundreds of thousands of voters in the aforementioned states should speak volumes to politicians in other states about mandatory GMO labeling. In addition, as several WLF publications have explained (i.e. here and here)—and a suit against Vermont’s labeling mandate argues—such mandates infringe on federal authority to regulate food labels and tread on food producers’ constitutional rights. Policy makers should bear these points in mind, and keep a watchful eye on the legal challenge to Vermont’s law, when they are urged to embrace mandated labeling.

Nutrition nannies such as former New York City Mayor Michael Bloomberg have trumpeted the Berkeley vote as a watershed moment. Given the Berkeley electorate’s historical affinity for fringe movements and big government, the outcome is more likely an aberration than a harbinger. The result also should be considered counterproductive for the fight against obesity. It advances the entirely baseless notion that regressive taxes on soda and other disfavored beverages will benefit taxpayers’ health. Reliance on such taxes also detracts attention and energy from actual solutions to America’s expanding waistline. But considering the financial largesse of benefactors like Mr. Bloomberg and the zeal of his activist allies, the fight over manipulative sin taxes is likely to continue.

Also published by Forbes.com on WLF’s contributor page

First Circuit Permits Challenge to Massachusetts Prior Restraint on Billboards

billboardIn recognition of Free Speech Week, the WLF Legal Pulse celebrates what may be the First Amendment’s greatest virtue: it protects speech that may be unpopular due to the nature of the speaker or the medium within which it is spoken. We do so by applauding an October 20 U.S. Court of Appeals for the First Circuit ruling that addressed a prior restraint on a method of communication that some disfavor—billboards—and that predominantly carries messages some consider unworthy of full constitutional protection—advertisements.

Unbridled regulatory authority. Section 302 of the Massachusetts Code of Regulations requires all outdoor advertisers to obtain both an operating license and a permit for each specific sign. The regulation vests the Director of the Office of Outdoor Advertising (“Director”) with broad discretion to grant, withhold, or revoke licenses and permits for billboards. Section 302 enumerates several factors that the Director “may” consider, including “health, safety, and general welfare” and “not [being] in harmony with the surrounding area.” The regulation, however, states the listed factors are non-exclusive and that the Director’s authority is “[w]ithout limitation.”

Van Wagner Communications, which lobbied against the 2012 amendments to Section 302, filed a facial challenge to the regulation in federal court, arguing that it imposed an unconstitutional prior restraint on the company’s speech. The U.S. District Court for the District of Massachusetts held that because the Director had approved Van Wagner’s license and all 70 of its permit requests over two years, the company suffered no injury and thus lacked standing to sue. Continue reading

Update: World Trade Organization Rejects USDA Meat Rule on Country of Origin Labeling

WTOYesterday, a World Trade Organization (WTO) compliance panel publicly released its determination that the United States Department of Agriculture’s (USDA) country of origin labeling rule for certain cuts of muscle meat violated the international Technical Barriers to Trade agreement. Canada had sought such a determination, supported by other nations such as Argentina, Australia, and Japan.

News reports on this decision caught The WLF Legal Pulse‘s attention because U.S. meat producers had challenged the so-called COOL rule under the First Amendment in the U.S. Court of Appeals for the D.C. Circuit.  A number of posts (here and here) assessed the court’s July 29 en banc decision rejecting the producers’ challenge.

As we argued in the August 25 post, the majority improperly assisted the government by identifying the substantial government interests that the USDA rule advanced, including the protection of domestic farmers from foreign competition. Because of the pending proceedings at the WTO, the U.S. government had formally denied that protectionism was one of the goals of its COOL regulation.

The meat producers have asked the D.C. Circuit to reconsider its en banc holding, a motion on which the court has yet to rule. It is uncertain what impact the WTO determination will have on that request.

White House Boosts Fictional “Food Addiction” Concept to School Kids

BSFriesAs we’ve discussed numerous times here, some nutrition nanny activists, regulators, and plaintiffs’ lawyers have embraced and promoted the concept that food can be “addictive.” The term grabs people’s attention, conjuring up disturbing mental images of helplessness and withdrawal. It’s no wonder, then, that the notion of “food addiction” is often invoked in the context of greater government regulation, taxes, and advertising restrictions designed to redirect our dietary choices.

On September 26, the concept received its highest profile reference yet, from First Lady Michelle Obama, during an interview broadcast to millions of students on the in-school “Channel One News.” When asked about the criticism the federal government’s new school lunch rules have faced, the First Lady responded:

It’s natural. Change is hard. And the thing about highly processed, sugary, salty foods is that you get addicted to it. I don’t want to just settle because it’s hard. I don’t want to give up because it’s expensive. I don’t want that to be the excuse.

The interview appears to have been very carefully scripted, so her mention of “addiction” was hardly spontaneous or casual, nor was her referencing it in the context of “highly processed, sugary, salty foods.” Federal government regulation is taking direct aim at those demonized products and their ingredients.

For instance, the Department of Agriculture has proposed banning the sale of certain foods in public schools that don’t meet “Smart Snacks” guidelines, as well as banning advertising of those products in schools. Also, as part of its update of the Nutrition Facts label affixed to all packaged foods, the Food and Drug Administration (FDA) is proposing a new “added sugars” item. FDA is pursuing this mandate even though the agency acknowledges that no chemical difference exists between naturally occurring and added sugars in food. The “added sugars” mandate would also expose federal regulators to constitutional challenges under the First and Fourth Amendments, as leading food regulation attorneys Richard Frank and Bruce Silverglade argue in a September 26 WLF Legal Backgrounder.

The First Lady’s reference to “food addiction” was ill-advised, especially considering the age and maturity level of her captive audience on Channel One News. The concept of addiction has been significantly dumbed down and politicized over the past few decades to the point where it has almost lost any objective meaning. Reputable scientists have questioned not only the methodology behind “food addiction” studies, but also the researchers’ motivation.

The “Let’s Move” effort led by the First Lady advances the indisputably worthy goal of a healthier America, but that goal cannot be met by fomenting faulty food addiction concerns. Such a concept creates a serious moral hazard—people struggling to lose weight may throw up their hands because they believe addiction to (insert high-calorie product) has taken hold. Talk of addiction, and the choice-restrictive public policies it fuels, also diverts attention and resources from actual solutions to obesity in America.

Also published by Forbes.com at WLF’s contributor page

Not so “Grrr-eat”: The Response Nutrition Nannies Have Grown to Love

Half-full or half-empty?

Half-empty

Nice, but not good enough. That is the near-Pavlovian response professional activists routinely offer whenever their targets announce some voluntary action that, to the casual observer, seems to advance the activists’ agenda.

Consider, for instance, a September 23 Politico story, “Food, Beverage Firms to Dial Back Marketing to Kids.” The story reported on voluntary commitments International Food and Beverage Alliance member companies made to the World Health Organization regarding product marketing to children under 12. Those commitments include restrictions that nutrition activists have long sought from government regulators. Yet, there was the glass-half-empty response of Center for Science in the Public Interest’s (CSPI) nutrition policy director, Margo Wootan:

If they’re saying they’re covering all media, they’re not. They’re missing on-package marketing [and] in-store and on-display marketing.

Ms. Wootan’s comments confirm a theory WLF has been arguing for the past several years in the context of plain packaging initiatives for tobacco: activists have their sights on more than one category of consumer products. Continue reading

Second Circuit Overturns Law that Compelled Businesses to Advertise their Competitors’ Services

2nd CircuitOn September 4, with Safelite Group, Inc. v. Jepsen, the U.S. Court of Appeals for the Second Circuit made an important contribution to the jurisprudence of compelled speech (an area of growing disharmony in the federal courts, as we’ve noted recently). The court unanimously struck down a Connecticut law that permitted certain businesses to promote their auto-glass repair services only if they mentioned the similar services of their competitors.

The Law at Issue. The Petitioner, Safelite Group, is an insurance claims management company that owns and operates a Connecticut affiliate, Safelite Auto Glass. If auto insurance companies direct Connecticut drivers with auto-glass claims to Safelite, Safelite can recommend (but, under state law, cannot require) Safelite Auto Glass to do the repairs. When it does so, Safelite voluntarily discloses its ownership interest to the insureds. If insureds cannot or do not want to utilize a Safelite Auto Glass shop, Safelite recommends another shop that Safelite has pre-approved.

Unaffiliated Connecticut auto-glass shops took their complaints about Safelite’s “unfair” practices to the legislature, which in May 2013 adopted a law that in part prohibits insurance companies or their claims administrators from mentioning their affiliate repair shops unless they also reference a competitor.

First Amendment Challenge. Safelite sought a preliminary injunction against Connecticut’s enforcement of the law, arguing in federal district court that the compelled speech requirement abridged its First Amendment rights. The district court denied the injunction, holding that the mandate simply required disclosure of factual, uncontroversial information that does not offend the company’s First Amendment freedoms. Continue reading

High Court Presented with Opportunity to Reinforce its Compelled Speech Jurisprudence

first-amendmentA petition for writ of certiorari filed with the U.S. Supreme Court on July 17 (the respondent’s reply is still pending) may provide the justices with a timely opportunity to clarify the Court’s jurisprudence on compelled speech. The case, Anthem Prescription Management v. Beeman, involves the increasingly common practice by government of enlisting private enterprises to communicate certain messages against their will. As we have discussed here recently, the lower federal courts are fractured over the amount of First Amendment scrutiny judges should apply when businesses challenge such speech mandates.

Laws Correcting Deception. Beginning with Zauderer v. Office of Disciplinary Counsel in 1985, the Supreme Court has developed a consistent jurisprudence on compelled speech for commercial enterprises. Zauderer recognized businesses’ First Amendment rights to communicate with consumers about their products. But the Court noted that such protection is minimal for misleading or false commercial speech. It held that “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” The Court emphasized that the speech mandate must require “purely factual and uncontroversial information” and not be “unduly burdensome.”

Laws Not Targeting Deception. What if the government interest underlying a speech mandate is not correction of deception? In our opinion, the Court spoke quite clearly in Zauderer, carving out prevention of deception as a unique exception to the First Amendment’s heightened protection of commercial speech, and thus heightened scrutiny should still apply to other speech mandates. Continue reading