No one who reads the newspaper or listens to the evening news would suggest that their diets could not benefit from some changes—whether a “tweaking” or a major overhaul. The issues of obesity, dental caries, “empty calories” and the sentimental favorite of “developing good eating habits” remain topics of concern to most Americans. However, there is no uniform understanding or agreed-upon plan to improve the quality of the “national diet.” Bona fide efforts by producers to develop new products or marketing approaches to address dietary or lifestyle shortcomings are as likely to be publicly criticized as they are to be praised. A number of regulatory agencies possess the legal authority to regulate the food industry with one or more weapons from their legal arsenal.
While the origin of the FDA may have been limited to concerns for “safe” food, by the 1950s, FDA was giving “guidance to industry,” and today CFSAN clearly articulates that its charge is to ensure that food is “safe, nutritious and wholesome,” including “promot(ing) sound nutrition” (Inside FDA: Center for Food Safety and Applied Nutrition; January 1998). In 1980, FDA published a form of nutrition regulation with its fortification policy (21 CFR 104.20), and Congress established nutrition (and safety) standards for infant diets with passage of the Infant Formula Act.
FDA’s fortification policy protects against misleading labeling and, at best, represents an indirect approach to nutritional goal-setting: “Indiscriminate fortification of foods could lead to confusion about the necessity or propriety of food fortification. It could mislead consumers about the overall nutritional value of various kinds of foods and could lead to potentially serious health problems” (45 Federal Register 6322, Jan. 25, 1980, as amended 58 FR 2228, Jan. 6, 1993). However, some experts in the field of nutrition regard the fortification policy as “. . . (a) significant obstacle to rational fortification of foods, because of its ‘wholesale’ condemnation of certain classes of foods as inappropriate vehicles for delivering nutrients to target populations” (Richard C. Theuer, comment to FDA Dkt. No. 98N-0359). Standards of identity represent a vehicle for FDA to establish the nutritional value of foods through ingredient selection, but as the agency opines, “. . . standards of identity are not established because a product is consumed in large volumes or for consumer safety or confidence but are established to promote honesty and fair dealing in the interest of consumers” (Final Rule: Bottled Water: Dkt. No. 88P-0030).
While there have been exceptions, FDA’s philosophical approach to promoting wholesomeness has been to focus on total dietary concerns rather than labeling individual foods as “good or bad”(Comments by James S. Benson, acting commissioner, March 7, 1990; and “Tips for the Savvy Supplement User: Making Informed Decisions and Evaluating Information,” CFSAN, January 2002). Early regulatory efforts by FDA to identify and promote “better for you” foods and key nutrients were legislatively limited to the selection of nutrients for the Information Panel—now the Nutrition Facts panel. An individual ingredient’s importance in the diet was signified by the order in which it was listed on the food label or not at all. At the same time, FDA chose to withhold certain important nutrition information on the theory that adult caregivers (to children under four) might misinterpret or misuse that information. FDA actively resisted any producer’s claim for a dietary advantage that went any further than a generalized claim for appropriateness of the food to an overall balanced meal or daily diet.
To its credit, although FDA may have been dragged kicking and screaming by Congress, the passage of the Nutritional Labeling and Education Act and the Dietary Supplement Health and Education Act recognizes the positive effect of advertising, label claims, marketing strategies and the role of individual foods in promoting health and good nutrition. (This is opposed to merely “avoiding misleading claims.”) The FDA is implementing a labeling system that gives consumers timely access to helpful information if they want assistance in determining the nutritional value and dietary utility of packaged foods.
If we consider the role of the county extension agent, which provided farm families with information on good nutrition, the USDA has been involved in a “national diet” for quite a long time. This history, plus the essential role of USDA in farm policy, places USDA in an active advisory role.
MyPyramid (the 2005 version of the U.S. food pyramid) is only the latest and most obvious example of direct governmental involvement in the selection of individual foods and promotion of the nutritional goals expressed in the “Dietary Guidelines for Americans 2005” report. However, merely drawing attention to the categories of foods to be limited and highlighting the categories of foods to be encouraged may be insufficient for some critics if MyPyramid continues to include foods which, although desirable and good-tasting, are not essential to good health and do not affirmatively contribute to the desired end. Milk, the consumption of which is favored by MyPyramid in the National School Lunch Program and promoted over the consumption of “competitive” beverages, is considered by some to be “another step in the wrong direction,” as the recommended daily consumption adds 300 calories, falls short of medical support for disease prevention and is not an option for lactose-intolerant individuals (Food Pyramids, Harvard School of Public Health, 2007).
Far more than dietary recommendations, the authority granted to USDA in the school nutrition programs is real, broad and well-funded. Representing the content of at least one meal a day for millions of children and two meals for some, the School Breakfast Program and the National School Lunch Program are often targeted for criticism as not being good examples of a wholesome diet or worse—being significant contributors to an obesity problem among children.
Participating schools must provide “nutritious and well-balanced meals” at the eating occasions listed and meet specific “nutrition standards” by age group—all based upon the most current Dietary Guidelines (7 CFR 210). The regulations define foods of “minimal nutritional value” (generally less than 5% of eight nutrients per 100 calories) and prohibit their sale in “food service areas during the lunch periods.” Sales of “competitive foods” (non-program foods which are not foods of “minimal nutritional value”) are discretionary to the school, but regulations require that all income derived from their sale be reinvested in the school. Some “non-program” foods could be part of a generally wholesome diet but are not offered at certain schools because they compete for space in a student’s stomach. For example, orange juice, considered a healthy beverage by many, must be sold outside the foodservice areas of the school because it could displace milk as the desired beverage.
The Government Accountability Office (GAO) reports that 99% of high schools, 97% of middle schools and 83% of elementary schools have vending machines, school stores or snack bars (GAO-05-563 “School Meal Program”).
In addition, while many states are content with the scope of the USDA rules, 28 impose additional restrictions. Just recently, Senator Tom Harkin re-introduced the Child Nutrition Promotion and School Lunch Protection Act (S. 2592) to amend the National School Lunch Act, to both update the definition of “minimal nutritional value” and to further limit the times and areas of the school in which competitive foods can be sold (see also: S. 2894, the Prevention of Childhood Obesity Act, 2004).
Through its various authorities, USDA has the ability to not only influence dietary decisions, but it can command dietary choices by limiting the availability of “less wholesome” alternatives.
Promotional ConsiderationsThe Federal Trade Commission (FTC) has contributed to the promotion of better dietary choices through its authority to prohibit “unfair” advertising practices. Few would dispute the conclusions of the recent Institute of Medicine’s (IOM) report to Congress on the impact of advertising on children. The FTC has shown its willingness to not only regulate the timing and content of advertisements, but has from time to time considered regulations to compel the disclosure of certain qualifying or corrective messages. The FTC is limited in its ability to develop forward-looking remedies by the statutory requirement that it must first find an unfair or deceptive practice. The Commission does not have the authority to compel advertising of “wholesome” foods unless as “corrective advertising” or as an artfully crafted means to correct an industry practice of deceptive or unfair advertising.
Two of the elements of the FTC’s so-called “Kid-Vid” proposal of the mid-1970s attempted to regulate advertising to children based on the nutritional worth of the food advertised. They banned ads for foods contributing to cavities in children and required a “balancing” message in ads for highly sugared food products. While the proposal met with substantial criticism from industry and Congress—to the extent of removing the FTC’s authority to regulate “unfair” advertising for a time—the FTC continues to probe and consider what interventions may be available under its current authority.
A public notice in 2006 that requested information on the food industry’s activities targeting children seems to suggest that the FTC is still interested in the motives behind some of its marketing techniques. The FTC seeks comment on how “food and beverage companies record and maintain information about marketing activities and expenditures to children and adolescents” (e.g., whether they record and maintain marketing expenditure information based on product category, brand, specific product, etc., and how long they keep marketing information) (71 Federal Register 10535, March 1, 2006). In fairness, it should be pointed out that the FTC has not singled out the food industry for rulemaking. The commission has targeted other industries marketing to children 13 and under with regulations adopted under the authority of the Telephone Disclosure and Dispute Resolution Act and the Children’s Online Privacy Protection Act (COPPA) (see: 16 CFR 308 and 16 CFR 312).
When all is said and done, pity the poor ad agency copywriter who is charged with creating the same appeal for orange juice, a whole-wheat cracker and a banana as for a soft drink, a bag of potato chips and a candy bar. Nevertheless, leading marketers are recognizing that self-regulation may be the best, if not only, means to avoid stricter governmental regulation of nutrition. Along with former President Clinton and the American Heart Association, companies have entered into agreements to discuss limiting the sales of soft drinks in schools or to develop guidelines to limit the amount of fat, sugar and sodium in snack foods available in schools. Joint measures undertaken as the Children’s Food and Beverage Advertising Initiative along with the Childrens’ Advertising Review Unit (a part of the National Advertising Division of the Better Business Bureau, one of the most effective industry self-regulatory bodies in operation) to “promote healthy dietary choices and lifestyle” portend the possibility of a reasoned approach to the obvious problem of a sound nutrition policy grounded in good science and appetite appeal.
The various regulatory agencies have been given, and have already exercised, authority to affect parts of a “national diet” contributing to good health and good eating. Unfortunately, the legislative authority to prohibit “misleading” or “unfair” does not translate readily to the authority to discourage “a poor choice” or to promote a “better choice.” It falls far short of the authority to compel kids to “eat your vegetables, because we know what is best for you.” Recently, the IOM submitted to Congress its “offer this, avoid that” recommendations for foods sold in competition with government-supported school lunch programs. Although immediately characterized by Senator Harkin as “for the first time, we have gold-standard recommendations,” it is too early to assess why the IOM recommendations are a dramatic improvement over the current Dietary Guidelines. A number of marketing companies, trade organizations and interested individuals have expressed a willingness to address issues of good health and good eating. Perhaps if we could first reach consensus whether the means to achieve good nutritional goals can be “advisory” or must be “mandatory,” it would be easier to defer to these expert resources to help develop what those nutritional goals should be and where they should be applied.