Posts Tagged ‘obesity’
Thursday, February 11th, 2016
By Cara Wilking, JD, Consulting Attorney, Public Health Advocacy Institute
[PLEASE NOTE: This blog post was prepared prior to unexplained changes to Coca-Cola’s database of its funding of organizations in the United States. The information reflects the dollar amounts initially reported by Coca-Cola in the Fall of 2015.]
For years, the month of February has been the kick-off of the Coca-Cola Company’s sponsorship of the National Heart Lung and Blood Institute’s (NHLBI) Heart Truth campaign. Heart Truth began in 2002, with the goal of raising awareness that heart disease is the number one killer of women. The campaign fits within the general mission of NHLBI to collaborate with a range of stakeholders to promote the prevention and treatment of heart, lung, and blood diseases. As part of the Department of Health and Human Services (HHS), NHLBI provides research funding and conducts outreach with the public to improve the public health. As a federal agency, NHLBI is subject to legal limits on its use of funds and HHS’s ethical guidelines for co-sponsorship of events. These guidelines are meant to guard against conflicts of interest that would undermine the primary mission of NHLBI. Coke’s corporate funding disclosures in the Fall of 2015 indicate that as public pressure on NHLBI built, Coke shifted the bulk of its heart health giving to a tight circle of non-governmental heart health organizations consisting of the American College of Cardiology, the Preventive Cardiovascular Nurses Association, the American Dietetic Association, and Brigham and Women’s Hospital in Boston, MA.
Coke’s Heart Health Campaign
From 2008 to 2014, The Coca-Cola Company, under its Diet Coke brand, was the Heart Truth campaign’s most visible co-sponsor: Despite the fact that HHS’s ethical guidelines place a particular emphasis on avoiding the appearance of product endorsement, Heart Truth logos were printed on billions of Diet Coke cans, heart health-themed Diet Coke ads ran during the Olympic Games, Coke enlisted high-profile celebrities like Heidi Klum to appear at Heart Truth events, and Diet Coke beverages were distributed at community heart health screenings.
NHLBI’s partnership with Coke drew ire from the public health community because it seemed untenable to partner with a company that also sells sugary drinks linked to obesity and heart disease. The fact that the partnership focused on Diet Coke was particularly problematic because it closely followed the release of the NHBLI-funded Framingham Heart Study’s findings that consumption of diet soft drinks appeared to be linked to increased risk factors for heart disease.
In 2010, the Center for Science in the Public Interest (“CSPI”) called on the government agency to sever its ties with Coke, but NHLBI publicly refused to do so. The primary rationale NHLBI gave for keeping Coke as a corporate sponsor was that the company allowed the agency to extend its reach to get out the message that heart disease is an important health concern for women. CSPI’s challenge to the program led to a public debate about the role of Coke in NHLBI’s educational activities.
Coke’s Heart Truth Contracts with NHLBI
In 2010, PHAI requested Coke’s contracts with the NHLBI pursuant to the Freedom of Information Act (FOIA) and received copies of contracts the company entered into with Ogilvy Public Relations Worldwide on behalf of the NHLBI from 2007, 2008, 2009 and 2010:
- Coke Agreement_December-17-2007
- Coke Agreement_Jan-3-2008
- Coke Agreement_Oct-21-2008
- Coke Agreement_Jan-13-2010-2011
At the time, the dollar amounts in these contracts were redacted as proprietary information.
Coke’s recent funding disclosures date back to 2010, and show that in 2010 the company paid NHLBI $440,000 in support of a fashion show to promote heart health awareness. Through its contracts with NHLBI for the 2010 Heart Truth Fashion Show, Coke was granted:
-Exclusivity as the only carbonated beverage category event sponsor
-Full use of the NHLBI Heart Truth logo in any Coke marketing, advertising and or promotional materials or activities
-Assistance from NHLBI’s agent, Ogilvy, in the “development of heart health content and messages” for its use
-“Access to heart health experts and spokespeople to serve on Coca-Cola’s behalf including at Coca-Cola luncheons, ambassador program, opinion shaper and other customer/VIP events”
-Highlighted attention to Coca-Cola’s partnership activities on the Heart Truth webpage
-Soundbites from NHLBI representatives at Heart Truth events for use by Coca-Cola
-The right to provide free samples of Coca-Cola products at the fashion show
-The right to feature Coca-Cola advertising in essentially all aspects of the event
-Pre-approval of “all [NHLBI] creative materials, press releases, collateral materials, signage and other items using” Coca-Cola’s trademarks
The breadth of the rights granted to Coca-Cola is in keeping with a typical private arrangement for event sponsorship, but seems startling in the context of a government run educational campaign. Ogilvy Public Relations Worldwide was awarded multi-year government contracts from the NHLBI totaling $11.9 million to execute the Heart Truth campaign on its behalf. Organizers of complex, national educational campaigns must work with sponsors to ensure events run smoothly. The contracts Ogilvy entered into on NHLBI’s behalf with Coke, however, reveal a situation where it appears that NHLBI was granting Coke rights to advance the company’s commercial agenda.
Coke Abruptly Shifts Its Heart Health Spending
In March of 2010, PHAI wrote a detailed letter to the Associate General Counsel for Health and Human Services (HHS), asking that it review NHLBI’s relationship with Coke pursuant to the agency’s written ethical guidelines for co-sponsorships of events. In its reply, HHS cited a general provision of the Public Health Service Act granting NHLBI the authority to conduct health promotion campaigns and deferred decision-making about the appropriateness of Coke’s co-sponsorship of the Heart Truth campaign to NHBLI. Despite NHLBI’s public defense of Coke in response to CSPI’s letter and apparent agency inaction after PHAI’s request to review the relationship, after 2011 Coca-Cola shifted its support for Heart Truth and other heart health activities sharply away from the NHLBI.
According to Coke’s initial funding disclosures in the Fall of 2015, between 2010 and 2015, Coke’s total funding of heart health-related organizations and educational activities was approximately $8 million (click here for a detailed description). $7.8 million of these funds went to just five organizations: NHLBI (via Ogilvy and the Foundation for the National Institutes of Health), the American College of Cardiology, the Preventive Cardiovascular Nurses Association, the American Dietetic Association, and Brigham and Women’s Hospital in Boston, MA. NHLBI-related funding of the Heart Truth totaled $1.9 million with Coke’s contributions peaking at $1 mil in 2011. Starting in 2012, Coke sharply reduced its direct NHLBI support and shifted its gifts to private organizations not subject to FOIA requests.
Brigham and Women’s Hospital Cardiologists Associated with Millions in Coke Money
Coke’s Heart Truth partnership with NHLBI was created under the leadership of then NHLBI Director Elizabeth (Betsy) Nabel, MD. Dr. Nabel is a cardiologist who left public service in 2010 to become President of Brigham and Women’s Hospital (BWH) in Boston, MA. Dr. Nabel traveled to Canada to be an official 2010 Olympic Games Torchbearer for Coke and spoke glowingly about her relationship with Coke.
It turned out that Dr. Nabel was not the only Coke heart health partner at BWH. She was joined by Dr. JoAnne Foody, MD, the Medical Director of BWH’s Pollin Cardiovascular Wellness Center. Dr. Foody is featured as a heart health expert in continuing education presentations produced by Coca-Cola’s Beverage Institute for Health, and in 2011 was selected to serve as the Editor-In-Chief of the American College of Cardiology’s (ACC) CardioSmart initiative. ACC received $2.6 million in Coke funding for CardioSmart and community screenings between 2010 and 2015. CardioSmart is described as “a patient education site committed to providing accurate, un-biased heart health information in an advertising-free environment.”
Coke clearly valued its relationship with Dr. Foody. As was reported in 2012, she was included in an email sent from Coca-Cola executive Helen Tarleton to a list of “partners” in various health organizations sharing the company’s position on a proposed New York City ordinance to limit soda portions. The email asked Dr. Foody to disseminate a Coke infographic downplaying the role of sugary drinks in the obesity epidemic. Coke’s direct request to advance a policy position potentially at odds with CardioSmart’s mission to educate heart health patients is a striking example of the depth of the relationships it formed with its public health “partners.”
In 2013 and 2014, Dr. Nabel and Dr. Foody leveraged their relationship with Coke into $1.2 million dollars of funding for a BWH cardiovascular health initiative called ClimbCorps to promote stair climbing for heart health and provide heart health education. Dr. Foody served as the ClimbCorps’ Medical Director. In 2013, Coca-Cola executive Helen Tarleton personally attended a ClimbCorps event with Dr. Nabel and Dr. Foody. The program no longer has an active website and all links to ClimbCorps redirect to the BWH general website. The program’s emphasis on physical activity fit well within Coke’s overall obesity strategy to focus on physical activity as opposed to diet.
Coke Exits the Heart Health Picture
Coke’s funding disclosures paint a more complete picture of how it operated and who it turned to when it needed to shift its giving from a highly scrutinized government agency to private organizations. In response to public pressure, Coke has since bowed out of the heart health initiatives it funded over the past five years:
- Coke ended its role as a corporate sponsor of NHLBI’s Heart Truth Campaign in 2014
- After being called out by the New York Times for funding junk science promoted by Coke and researchers it funded that focused on what it calls “energy balance science” (which claims that there is no established link between soda consumption and obesity and promotes exercise as the most effective way of compensating for the extra calories derived from soda consumption), Coke announced in September 2015 that it would no longer fund the American College of Cardiology including the CardioSmart program
- ClimbCorps is no longer an active program of BWH
In the process, millions of dollars were spent in ways that Coke itself now admits were not adequately transparent, and were inappropriate given the company’s overwhelming commercial interests in the health issues addressed.
There is no question that funds are desperately needed for programs to address crucial diet-related public health issues like cardiovascular disease in women. Coke spent $8 million on heart health education in five years (not including the in-kind contributions it made via specially printed product packages, Heart Truth dedicated websites and television commercials), while the federal government spent just $17 million on the Heart Truth campaign over ten years. The problem with Coke’s heart health spending is that its primary goal has been to downplay the role of sugary drinks in the obesity epidemic and to position diet beverages as healthy alternatives. Neither of these positions is fully supported by actual evidence and, as such, are in conflict with the mission of truly unbiased cardiovascular health initiatives.
There remain many unanswered questions about Coke’s heart health “partnerships.” To what extent did Coke’s initial participation with NHBLI’s Heart Truth campaign give the company legitimacy through what appeared to have been the government’s imprimatur and grant it access to the private organizations it subsequently partnered with? What other requests for political support did the company make of the heart health organizations it funded? How did Coke’s funding impact the heart health activities of the organizations it funded in terms of dietary recommendations to the public or support for public health policies at odds with Coke’s agenda? The most important question left in the wake of Coke’s co-optation of the Heart Truth campaign is this: Moving forward, how can the United States create and sustain unbiased funding mechanisms for the crucial public health issues of our time?
Re-Tooling Bottled Water Bans and Healthy Beverage Requirements to Serve Sustainability and Public Health Goals: A Constructive Path Forward
Monday, June 29th, 2015
By Cara Wilking, JD, PHAI Consulting Attorney
Researchers at the University of Vermont in Burlington (UVM) published a paper describing the impact of a campus bottled water ban that was paired with a healthy beverage requirement. The study found that removing bottled water from campus had no impact on the number of plastic bottles shipped to the campus, and resulted in higher consumption of unhealthy beverages. These results do not support the sustainability or public health goals of the bottled water ban: it failed to reduce plastic trash and carbon emissions or improve the nutrition profile of beverages consumed by students, faculty and staff on the UVM campus.
The study puts a fine point on a very practical tension that exists between two highly organized movements: the obesity and oral health prevention movements with a primary focus on shifting the public from caloric beverages to non-caloric beverages like water–for the most part regardless of how they are packaged; and a segment of the sustainability movement that has honed in on bottled water as a unique source of plastic trash, carbon emissions from its transportation, and a burden on communities from where it is extracted for packaging. The public health community regards bottled water as a healthy alternative to other drinks when consumers are choosing a beverage to buy, and the environmental community considers bottled water to be a needless source of pollution. The UVM study findings call out for solutions that meet the goals of both groups, and that combine their forces for a greater collective impact.
A constructive path forward is for both movements to work together to reduce access points for all packaged beverages. A key to the bottled beverage industry’s success has been to insert itself into every aspect of daily life. Vending machines are found in parks, schools, college campuses, recreation centers, etc. And coolers selling bottled beverages are placed at the end-caps of retail check-out lines, and fill the walls of convenience stores all over the country—including in places like college campuses. These access points haven’t always been there. They’ve been inserted via private contracts over time—these are contracts that are not required to be renewed and can be radically altered to support the environment and the public health.
A strategic focus on reducing total access points for packaged beverages benefits the environment through:
- Reduction in total number of plastic bottles used
- Reduction in carbon emissions from transport of bottled beverages
- Reduction in energy use from vending equipment and refrigerated cases
- Increase in awareness of and local support for public water systems
And benefits the public health through:
- Reduction of total packaged beverages consumed, many of which contribute to diet-related chronic disease and poor oral health
- Increase in investment and maintenance of plumbed drinking water access points
- Increase in awareness of and local support for community water systems
A focus on a total reduction of packaged beverages is timely because demand for sugary drinks is on the decline. This new path will require both movements to expand their thinking on their respective issues and entails political risks on both sides. The obesity prevention movement will have to move beyond efforts to change the product mix in existing vending machines and other retail sales outlets and embrace phase-outs of beverage vending machines and cooler equipment. A focus on an overall total reduction in sales of bottled beverages will not be cost-neutral in terms of revenues from bottled beverage sales. This will undoubtedly raise great opposition from the beverage industry and firms and institutions that profit from packaged beverage sales.
The environmental movement will have to expand its definition of bottled water to include water that has been carbonated, sweetened, flavored or brewed and packaged in plastic. A focus on bottled water alone has strategic benefits, especially on a college campus, because plain water can be accessed via drinking fountains. Moreover, allowing other packaged beverages to remain quells critics by providing choices beyond the drinking fountain. There, however, seem to be few discernible differences between bottled water and other bottled beverages: all have water as the primary ingredient, both may have been bottled at the same factory, both are placed in plastic containers, trucked in a vehicle, refrigerated in a machine, tossed into a trash or recycling receptacle, or not properly disposed of at all.
Both movements have built momentum and achieved many accomplishments. Imagine how much more progress can be made if they join forces.
PHAI’s Gottlieb and Wilking Co-author study in JAMA Pediatrics Showing that Fast Food Giants Confuse and Deceive Kids
Monday, March 31st, 2014
After much criticism and prodding, Fast food giants McDonald’s and Burger King agreed to depict healthier food options in advertising directed at children. Researchers at the Norris Cotton Cancer Center at Dartmouth-Hitchcock, along with the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, found that attempts to honor these pledges by depicting healthier kids’ meals frequently go unnoticed by children ages 3 to 7 years-old. In research published on March 31, 2014 in JAMA Pediatrics, these researchers found that one-half to one-third of children did not identify milk when shown McDonald’s and Burger King children’s advertising images depicting that product. Sliced apples in Burger King’s ads were identified as apples by only 10 percent of young viewers; instead most believed that the ads were depicting french fries.
Children in the study were confused by the images of food. One typical participant said, “And I see some…are those apples slices?”
The researcher replied, “I can’t tell you…you just have to say what you think they are.”
“I think they’re french fries,” the child responded.
“Burger King’s depiction of apple slices as ‘Fresh Apple Fries’ was misleading to children in the target age range,” said principal investigator James Sargent, MD, co-director Cancer Control Research Program at Norris Cotton Cancer Center. “The advertisement would be deceptive by industry standards, yet their self-regulation bodies took no action to address the misleading depiction.”
Mark Gottlieb, Executive Director of PHAI and an author of the study, observed that, “when young children believe they will be getting french fries with their meals because of deceptive or confusing advertising imagery, they may insist that the adult bringing them orders french fries instead of apple slices. Likewise, if advertising leads children to expect a sugary drink rather than milk, they may well end up getting the sugary drink. This has the effect of undermining the self-regulatory pledges that the companies made.”
Study author and PHAI Senior Staff Attorney Cara Wilking said she found it, “troubling that fast food giants would publicly make a self-regulatory pledge, fail to live up to the pledge, and receive no sanction from the relevant self-regulatory body. Such failures suggests that self-regulation is often more about public relations than about fulfilling the role of actual governmental regulation.”
Sargent and his colleagues studied fast food television ads aimed at children from July 2010 through June 2011. In this study researchers extracted “freeze frames” of Kids Meals shown in TV ads that appeared on Cartoon Network, Nickelodeon, and other children’s cable networks. Of the four healthy food depictions studied, only McDonald’s presentation of apple slices was recognized as an apple product by a large majority of the target audience, regardless of age. Researchers found that the other three presentations represented poor communication.
This study follows an earlier investigation conducted by Sargent and his colleagues, which found that McDonald’s and Burger King children’s advertising emphasized giveaways like toys or box office movie tie-ins to develop children’s brand awareness for fast food chains, despite self-imposed guidelines that discourage the practice.
While the Food and Drug Administration and the Federal Trade Commission play important regulatory roles in food labeling and marketing, the Better Business Bureau operates a self-regulatory system for children’s advertising. Two different programs offer guidelines to keep children’s advertising focused on the food, not toys, and, more specifically, on foods with nutritional value.
“The fast food industry spends somewhere between $100 to 200 million dollars a year on advertising to children, ads that aim to develop brand awareness and preferences in children who can’t even read or write, much less think critically about what is being presented.” said Sargent.
Bernhardt AM, Wilking C, Gottlieb M, Emond J, Sargent JD. Children’s Reaction to Depictions of Healthy Foods in Fast-Food Television Advertisements. JAMA Pediatr.2014;():. doi:10.1001/jamapediatrics.2014.140.
This study was funded by the Robert Wood Johnson Foundation’s Healthy Eating Research program.
Thursday, December 19th, 2013
December 19, 2013
The Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, along with our partners at the Center for Digital Democracy and Berkeley Media Studies Group, today releases State Law Approaches to Address Digital Food Marketing to Youth. It is a first-of-its kind resource that provides an evidence base and action steps grounded in state law. State attorneys general and other stakeholders in children’s health and privacy can use it to put a stop to troubling digital marketing practices that deceive youth and their parents.
In addition to clear explanations of how digital marketing works and why it poses privacy and health risks to youth, key legal issues for state regulators are explored. These issues include personal jurisdiction over out-of-state food and beverage marketing and media companies; the interplay of federal and state laws regulating mobile marketing; and the application of state promotions laws to child consumers.
Key findings include:
- Research demonstrates that digital marketing is harder for children to identify than traditional television advertising, heightening the need for regulatory oversight.
- Nickelodeon, the biggest source of food ads seen by youth, has augmented its media empire through websites, mobile apps and programming that imports content from a popular YouTube channel. All of its digital platforms are ad-supported creating new opportunities for food and beverage companies to target youth.
- Digital campaigns are seamlessly woven into food packaging allowing marketers to target youth in supermarkets, convenience stores and fast food restaurants. Packaging often directs youth to digital marketing on mobile devices or online. State regulators have jurisdiction over unfair and deceptive marketing on food packages sold to consumers in their states.
- Mobile marketing elements are integrated into food and beverage campaigns. The legal landscape for state oversight of mobile marketing includes federal and state SPAM and telemarketing laws, and the emerging regulation of geolocation tactics.
- States are authorized to protect child privacy under federal law and have successfully done so, but teens are not covered by child privacy laws. State attorneys general can fill the teen privacy gap using their general consumer protection authority to ensure that company promises to protect privacy are honored and that teens are not duped into sharing personal information.
- Facebook remains the dominant social media platform for teens. Teens growing use of social media has resulted in them being less privacy savvy. Food companies exploit this by prompting teens to login to their websites and participate in promotions via Facebook thereby granting marketers access to vast amounts of personal information.
- Digital sweepstakes and contests are in widespread use by the food industry with children as young as 6 years old. Despite repeated enforcement actions by the Children’s Advertising Review Unit (a self-regulatory body); food companies continue to conduct digital promotions with children that exploit their inability to understand that a free means of entry exists or their odds of winning a prize. State attorney general action is needed to augment these self-regulatory efforts to protect children from predatory promotions.
Senior Staff Attorney, Cara Wilking, who was lead author of the report, noted that, “state attorneys general are in a unique position to leverage state law approaches to stop unfair, deceptive, or otherwise illegal digital marketing of unhealthy foods to our youngest and most vulnerable consumers.”
PHAI’s Executive Director, Mark Gottlieb, added, “there is a general failure to understand the disturbing marketing practices that are becoming commonplace in the digital marketing world. This report goes a long way toward closing the knowledge gap between those using powerful technology to sell junk to kids and those who have the responsibility to protect them.”
- Executive Summary
- Why Digital Marketing Is Different
- Packaging: Digital Marketing at the Moment of Truth
- Personal Jurisdiction
- Mobile Food & Beverage Marketing
- Facebook Advertising
- Incentives-Based Interactive Food & Beverage Marketing
- Appendix: State Law Profiles
Support for State Law Approaches to Address Digital Food Marketing to Youth was provided by the Robert Wood Johnson Foundations Healthy Eating Research Program (#69293).
PHAI researchers co-author article in AJPH describing how health advocates battling the food and beverage industry can learn by looking back at the smoking and health crisis of the late 1950s and early 60s
Thursday, November 14th, 2013
Richard Daynard, Lissy Friedman, and Mark Gottlieb have co-authored an article published today in the American Journal of Public Health, along with our research partners from Berkeley Media Studies Group (BMSG). The article is entitled: “Cigarettes Become a Dangerous Product: Tobacco in the Rearview Mirror, 1952–1965.”
BMSG’s press release appears below:
Nutrition advocates may be able to use lessons from tobacco control to help government move faster toward protecting the public from harmful food and beverage company products and marketing practices, say the authors of a new study published today by the American Journal of Public Health.
In a content analysis of public and internal documents, the authors, from Berkeley Media Studies Group and the Public Health Advocacy Institute at Northeastern University School of Law, examined national newspapers, tobacco industry documents and the Congressional Record and Congressional Index between 1952 and 1965 to learn how health harms from cigarettes were framed in the early days of anti-tobacco advocacy.
The study found that news coverage of tobacco focused primarily on its health harms — not who was responsible for addressing them. Much as nutrition advocates often see headlines today about sugary drinks, junk food or other products that fuel disease, pre-1965 conversations about cigarettes were typically disconnected from the industry that produced them.
As such, the personal responsibility rhetoric the tobacco industry became known for in the 1980s and beyond — rhetoric that food and beverage companies have borrowed and are using today to forestall government regulation and shift blame for their products’ health harms onto the consumers who buy them — was all but absent from both news coverage and industry documents. Instead, tobacco companies focused on raising doubts about cigarettes’ links to lung cancer. More than three-quarters of tobacco industry documents denied that cigarettes are harmful to health, with industry spokespeople claiming that the causes of cancer are complex and more research was needed. The industry also discussed cigarettes’ alleged benefits, such as a “feeling of well-being and refreshment.”
What little discussion there was of culpability identified both individuals and industry as sharing blame for the problem and, strikingly given today’s political discourse, called upon government to act.
“The backdrop for early tobacco control was wildly different from today’s political climate,” Lori Dorfman, the study’s lead author and director of the Berkeley Media Studies Group, said. “Profound distrust of the government has made it harder for public health advocates to make the case for protections from harmful products. In the 60s, a belief in government’s duty to act to protect public health was the norm.”
According to the study, government action was contested only in internal industry documents, not public discussion. News coverage and legislative documents questioned not whether the government should act, but how.
Nevertheless, once the dangers of cigarettes were established, actions were individually oriented and related mostly to providing consumers with more education and warnings about smoking’s health harms.
“We now take for granted how effective tobacco taxes and indoor smoking bans are,” study author and Public Health Advocacy Institute Director Mark Gottlieb said. “But moving tobacco control efforts from smoking cessation to industry regulation happened over the long haul.”
The study authors suggest that advocates now pushing for healthier food environments may be able to do the same, shifting attention from unhealthy foods and beverages to the companies that manufacture and market them. However, they will have to do so within a changed, and more challenging, political context.
Article abstract link: http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2013.301475
Ciation: Dorfman L, Cheyne A, Gottlieb MA, Mejia P, Nixon L, Friedman LC, Daynard RA. Am J Public Health. Published online ahead of print November 14, 2013. doi:10.2105/AJPH.2013.301475.
About Berkeley Media Studies Group
Berkeley Media Studies Group researches the way public health issues are characterized in the media and helps community groups, journalists and advocates use the media to advance healthy public policy. BMSG is a project of the Public Health Institute.
About Public Health Advocacy Institute
The Public Health Advocacy Institute (PHAI) is a legal research center focused on public health law at Northeastern University School of Law. PHAI’s goal is to support and enhance a commitment to public health in individuals and institutes who shape public policy through law. PHAI is committed to research in public health law, public health policy development; to legal technical assistance; and to collaborative work at the intersection of law and public health. Their current areas of work include tobacco control and childhood obesity.
Heather Gehlert, BMSG
(510) 704-3471, email@example.com
Monday, October 7th, 2013
by Cara Wilking, J.D.
Since 2008, national advertising for McDonald’s Happy Meals has not depicted soda as per a self-regulatory pledge made to the Children’s Food and Beverage Advertising Initiative (CFBAI). In a recent pledge with the Clinton Global Initiative (CGI) and the Alliance for a Healthier Generation, McDonald’s stated that it will not display soda company logos in the children’s section of its restaurant menu boards or otherwise promote or feature soda, but soda will remain on the children’s menu. This seems to be a huge public admission that McDonald’s has no plans to actually take soda off of its children’s menu. Almost five years after McDonald’s began implementation of its CFBAI pledge its in-store children’s menu offerings still do not match the Happy Meal combinations it advertises to the public.
In July of 2011, I wrote about the fact that McDonald’s CFBAI pledge had not translated into its healthier options becoming its most popular or commonly sold options (a fact later confirmed by McDonald’s). At that time, meal combinations with french fries and a 12 oz. soda were the most popular Happy Meal combinations. Two years later, soda is still on the children’s menu. In order to truly improve the nutritional profile of the meals it actually sells, McDonald’s needs to do the same thing with beverages that it did with its french fries. Change the default. When a parent orders a Happy Meal the clerk should ask, “milk, apple juice or water.” Its CGI pledge does not accomplish that and evinces a potentially huge disconnect between what McDonald’s advertises and what it is actually selling to children and their parents.
Thursday, August 29th, 2013
In response to a recent study finding that nationally televised fast food television advertisements to children by McDonald’s and Burger King from 2009-2010 focused primarily on toys, movie tie-ins and branding, CARU Director Wayne Keeley stated that “[b]oth companies have always respected CARU’s recommendations by discontinuing the challenged ads, and pledged to take into account CARU’s recommendations in their future advertising,” and went on to note that there haven’t been any recent cases involving either of the two companies.
A look at CARU case reports tells a different story. Since 2005, McDonald’s Corporation has been cited by CARU six times for violations of its premium guideline. Just one of these cases, from Sept 2012, was decided in McDonald’s favor. The most recent CARU case against the company in December 2012 found the premium guideline had been violated. Each time McDonald’s pledged to take CARU guidelines into consideration in future advertisements. Burger King also was found to have violated CARU’s premium guideline in 2011.
Monday, August 26th, 2013
Cheeseburger Bills or Common Sense Consumption Acts (CCAs) were spearheaded by the National Restaurant Association as well as the American Legislative Exchange Council (ALEC) and have been enacted in 26 states. Media coverage and legislative debates about CCAs were dominated by themes of personal responsibility and the need for tort reform to protect businesses from frivolous litigation. A recent study just published in the Food and Drug Law Journal by PHAI’s Cara Wilking, J.D. and Richard A. Daynard, J.D., Ph.D. analyzes the
25 CCAs enacted between 2003 and 2012, and found they go well-beyond tort reform. Key findings from “Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits” include:
- The majority of CCAs (16 states) may be interpreted to confer broad civil immunity for claims seeking to recover for health harms stemming from long-term consumption of food.
The CCAs enacted in nine states (Alabama, Colorado, Georgia, Idaho, Illinois, Michigan, Missouri, Oklahoma and Tennessee) impose a limitation on the kinds of cases government attorneys can bring by specifically referencing governmental entities when defining the reach of the statute.
- Six states (Alabama, Georgia, Kentucky, Texas, Oregon and Washington) explicitly protect the authority of governmental entities to enforce certain food-related laws.
- Thirteen states impose substantial procedural barriers such as heightened pleading requirements and stays of discovery for covered obesity-related claims.
- All states had laws to guard against frivolous litigation in place prior to the enactment of CCAs.
The health harms of tobacco are well-known and linked to corporate misconduct. In the late 1990’s, tobacco litigation brought by State Attorneys General resulted in individual settlements by four states to recover smoking-related Medicaid costs. Forty-six states and territories negotiated the Master Settlement Agreement securing annual payments of several billion dollars in perpetuity as repayment for smoking-related healthcare costs.
Between 2008 and 2010, adult obesity rates increased in a total of 16 U.S. states, 11 of which are CCA states. The CCA states of Alabama, Louisiana and Tennessee are among the top five states with the highest rates of obesity, diabetes and hypertension. The current medical cost of adult obesity in the U.S. is estimated at $147-$210 billion per year, $61.8 billion of which is paid for by Medicare and Medicaid (Levi et al. 2012). The twenty-sixth CCA was passed in North Carolina in 2013 and they continue to be introduced in state legislatures. “A close analysis of CCAs reveals that the real point of the CCA proponents was not to prevent frivolous litigation, from which industry already had plentiful protection, but rather to limit legally and factually sound tobacco-style litigation, which might eventually have harmed industry’s bottom line and forced it to change its practices,” said Cara Wilking, J.D.
“Beyond Cheeseburgers: The Impact of Commonsense Consumption Acts on Future Obesity-Related Lawsuits” was published in the Food and Drug Law Journal and is reproduced with the permission of the Food and Drug Law Institute.
This research was supported by award #2R01CA087571 from the National Cancer Institute. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Cancer Institute or the National Institutes of Health.
Tuesday, July 30th, 2013
Update: July 30, 2013
At this point, the Supreme Court of NY County (March 11, 2013) and the Supreme Court, Appellate Division, First Dept. (today) have ruled that the sugary beverage serving size cap in New York is invalid. The case name is: In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. New York Dept. of Health and Mental Hygene, et al..
Clearly, I was mistaken in my prediction (see original post below) that the measure would survive a legal challenge. While the City will seek review by the Court of Appeals of the State of New York (the state’s highest court), this has clearly turned into an uphill battle for Mayor Bloomberg and the City at this point.
Interestingly, the beverage industry has (so far) successfully relied on a case brought by the tobacco industry in the 1987 to successfully the stop the NY Health Council from taking steps to regulate smoking in public places. At that time, it was politically impossible to get the state legislature to enact smoking restrictions in public indoor areas and limit smoking in restaurants. Such a measure was viewed as an extreme infraction on smokers’ rights. In that case, Boreali v. Axelrod, the court held that for several reasons, only the legislature was suited to enact such a restriction. Those same reasons are cited in today’s decision reinforce the impression that many of the same societal changes and setbacks experienced in tobacco control are playing out around obesity prevention policy.
- In Boreali, the Court found that the administrative health agency took economic issues into account by exempting restaurants and bars from smoking bans. Economic concerns are beyond the scope of a health agency’s legal authority. In today’s decision, the fact that NYC exempted convenience stores and bodegas was interpreted as an economic concession (despite the City’s strong arguments to the contrary).
- In Boreali, the fact that the state legislature had previously rejected smoking bans suggested that it was inappropriate for a health agency to go ahead and do an end-run around a matter previously before the legislature. Likewise, in today’s decision the Court found that the NY City Council has “targeted” sugary beverages in the past, so this subject matter should be off-limits to the Board of Health.
- In Boreali, the Court ruled that the fact that the health agency was drafting a new type of restriction was evidence that it was “writing on a clean slate” rather than tweaking or otherwise perfecting an existing restriction that was clearly within its purview. Same thing here. It was a new and innovative regulation which, according the this Court’s reasoning, is why it ought to be handled by a legislative body rather than an administrative agency.
- Finally, the Court in Boreali found that a simple no-smoking rule did not involve expertise in health matters. In today’s decision, too, the Court found that a simple beverage size ban did not require health expertise and, therefore, is beyond the scope of authority granted to the Board of Health.
Under today’s ruling, any one of these four factors could invalidate agency action. Such strict application of Boreali may ultimately represent chilling new limits on the powers of health boards in New York state.
While analysts may disagree over whether the Court’s decision today was a well-reasoned one, and it may yet be subject to further appellate review, it is important to note that it is basically a dispute about New York law and not a fundamental legal problem with placing limits on serving sizes for sugary beverages that is at issue.
But that said, the real disagreement may be more about evolving norms surrounding sugary beverages than about administrative authority. As norms around tobacco use evolved over time, Boreali is increasingly seen as an example of the tobacco industry gaining a temporary victory at the cost delaying the protection of the public’s health. Perhaps today’s decision will be seen in a similar light in the not-too-distant future as norms around sugary beverages continue to evolve.
-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law
Today the New York City Board of Health approved first-in-the-nation limits on the maximum size of sugary drinks served in restaurants, theaters, and sports venues. The vote was 8-0 in favor of adopting the regulation with one abstention. Grocery and convenience stores are exempt and diet drinks, juices, and drinks that are 50% of more milk (or milk substitute) are excluded.
While the measure drew ire from critics throughout the political spectrum, and has been inaccurately characterized as a “ban,” it has succeeded in invigorating the debate on the role of sugary drinks in obesity and the role of government to encourage mindful consumption. Such mindful consumption will begin 6 months from today when the new rule should go into effect.
In the meantime, there may be efforts by big drink stakeholders to challenge the regulation. One such group, New Yorkers for Beverage Choices, a group closely aligned if not controlled by the American Beverage Association, has hinted at such a challenge. The pro-business think tank, the Washington Legal Foundation, has published comments on the measure that suggest the basis for a legal challenge. A credible legal challenge could result in the granting of a injunction that could delay or derail the beverage size restriction. However, there appears to be little chance that such a challenge will lead to any measure of success.
The Washington Legal Foundation’s primary legal argument to oppose the measure is that it is the type of action that is normally reserved for legislation rather than rule-making by an administrative agency. The problem with that argument is that regulating serving sizes of sugary drinks in food establishments is clearly within the New York City Department of Health and Mental Hygiene’s authority to protect the public’s health under the City Charter’s sec. 558 and to engage in rule-making under sec. 1043. The Washington Legal Foundation public comments cite to a 1980s case, Boreali v. Axlerod. The case involved an early New York non-smoking rule that was overturned primarily because the state’s Public Health Council considered the economic impact of the restriction on businesses and offered waivers for those that could show financial hardship. This went beyond the Public Health Council’s legal authority to issue rules based solely on protecting health. Here, however, there is no waiver process and no consideration by the Board of Health of the economic impact this rule might have on businesses.
A second issue raised by the Washington Legal Foundation is that the problem of obesity is an important issue of concern to society and that dealing with such social issues is best left to legislative bodies rather than regulatory agencies. Citing again to the Boreali case, WLF suggests that this is a matter that it should only be addressed by elected officials and not agency appointees. Essentially, they are making a philosophical rather than a legal argument. Legally, this rule-making is very clearly within the agency’s purview.
In yesterday’s New York Times, an attorney who has previously represented New York restaurants suggested that the rule could be overturned on Constitutional grounds. This would be a reference to the Commerce Clause (Art. I, Sec. 8, Clause 3 of the U.S. Constitution) which grants Congress the power to regulate commerce among the states. If a state or, as in this case, a political subdivision of a state, passes a law or rule that substantially affects interstate commerce, it is possible that a court would find that the Commerce Clause reserved that power to Congress and the law or rule would be found to be unconstitutional. However, in this instance, there is virtually no argument that could be made that the beverage size rule could affect interstate commerce any more than the cup size could be found to be a form of free speech that the rule unconstitutionally restricts. Neither argument is credible enough to argue in a court room.
There is virtually no chance that the rule will be successfully challenged. Either threats of litigation will not materialize or, if they do, will be quickly dismissed. That result will encourage other communities to replicate the courageous action taken in new York City by Mayor Bloomberg and the Board of Health.
-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law
Friday, March 8th, 2013
Food companies used viral digital marketing tactics, such as “tell-a-friend” web campaigns, to induce children to share e-mail addresses of their friends and spread brand advertising of unhealthy foods among their peers. Even very young children are targeted by these campaigns, which may be considered unfair and deceptive and in violation of state consumer protection laws.
PHAI has prepared a legal issue brief on this topic for state attorneys general as well as stakeholders in children’s health and privacy. The brief explains the tactics that are used and suggests ways that they can be addressed, particularly under state law.
This work was supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#69293).