PHAI Online - The Public Health Advocacy Institute
Posts Tagged ‘obesity’
PHAI’s Wilking urges repeal of MA sales tax exemption for soda as first step in Boston Globe Letter to Editor
Friday, May 20th, 2011
In a May 18, 2011 Letter to the Editor published in the Boston Globe, PHAI Staff Attorney Cara Wilking argues that elimination of the sales tax exemption for sodas is a reasonable first step to reduce the impact of sugary drinks on obesity. However, a per ounce excise tax would have a more significant impact, according to Wilking.
PHAI’s Gottlieb discusses litigation as an approach to reduce childhood obesity at Institute of Medicine Workshop
Wednesday, October 27th, 2010
On October 21, 2010, the Institute of Medicine’s Standing Committee on Childhood Obesity Prevention hosted a one-day workshop to examine “Legal Strategies in Childhood Obesity Prevention.”
Mark Gottlieb, Executive Director of the Public Health Advocacy Institute at Northeastern University School of Law, presented on a panel moderated by UC Berkeley law professor Stephen Sugarman entitled “Using Litigation to Make Change.” Gottlieb’s presentation focused on the underutilized legal tool of state consumer protection laws to stop unfair and deceptive practices that seek to sell junk foods and beverages to kids.
Michael Jacobson from the Center for Science in the Public Interest then discussed the litigation and litigation threats that his organization has been using for policy change.
The final panelist was Joseph Price, an attorney with Faegre and Benson in Minneapolis that defends the food industry. His presentation was critical of the use of litigation to fight childhood obesity and took time to focus on PHAI’s President, Dick Daynard, as well as those who seek to fight obesity who, themselves, are overweight or obese.
All of the proceedings are available via the archived webcast and the litigation panel can be seen here.
Discovery of Elevated Fructose Levels in Popular Soft Drinks Raises Important Legal Questions for Regulators and Consumers
Wednesday, October 27th, 2010
Prepared by Cara Wilking, J.D., Staff Attorney
What kinds of High Fructose Corn Syrup Are Generally Recognized as Safe for Use in the Food Supply?
Substances “reasonably expected to become a component of food” are food additives subject to premarket approval by the Food and Drug Administration (FDA), unless they are as generally recognized as safe (GRAS).[1] In 1983, the federal government listed high fructose corn syrup (HFCS) as GRAS, and the FDA affirmed that decision in 1996. Federal law defines HFCS as “a sweet, nutritive saccharide mixture containing either approximately 42 or 55 percent fructose.”[2] Accordingly, HFCS typically is commercially available as HFCS-42 (42% fructose) or HFCS-55 (55% fructose). The basic rationale behind granting HFCS GRAS status was that it contains essentially the same ratio of fructose to glucose as table sugar (table sugar is 50% fructose and 50% glucose). Consistent with this logic, in its 1996 review of the GRAS status of HFCS, the FDA expressly rejected a proposal to expand the definition of HFCS to include “HFCS-90” (90% fructose), “primarily because HFCS-90 does not contain approximately equimolar amounts of glucose and fructose.”[3] HFCS-90 does not have GRAS status, and FDA food labeling laws require that HFCS be listed as an ingredient separate from other sweeteners.[4]
Do Fructose Levels in Popular Soft Drinks Containing HFCS Conform to the GRAS Standard?
In a recent study published in the journal Obesity, Ventura et al. purchased a mix of twenty three bottled and fountain dispensed sweetened-beverages and had them tested by an independent laboratory to determine, among other things, the fructose to glucose ratio of popular full-calorie soft-drinks. Laboratory testing revealed that bottled full-calorie Pepsi, Coca-Cola and Sprite had fructose estimates of 64-65%, well in excess of the upper-level of 55% fructose generally recognized as safe by the Food and Drug Administration.[5] The study extrapolated from this finding that the elevated fructose levels equated to “18% higher fructose consumption than would be estimated assuming the value of 55% HFCS.”[6] This preliminary finding has potentially important public health implications,[7] and is important because a key part of the GRAS process is to estimate the population-wide consumption of the substance being evaluated. [8]
What Legal Issues Would Be Implicated by Elevated Fructose Levels in Popular Soft-Drinks?
Ventura et al.’s study reflects a very small sample size. Elevated fructose levels in popular soft drinks, if confirmed by additional testing implicate a number of legal issues for regulators and consumers.
Federal Prohibition of False and Misleading Food Labeling
The Federal Food Drug and Cosmetic Act prohibits false and misleading food labeling, and “food is misbranded if its labeling is false or misleading in any particular.”[9] Federal law specifically defines HFCS “as mixture containing either approximately 42 or 55 percent fructose.”[10] These are the only HFCS formulations that are GRAS and permitted for widespread use in the food supply without prior approval. Absent another source of fructose disclosed in the ingredients list, it would be false and misleading to list “HFCS” on the ingredient list when the product in fact contains a higher ratio of fructose to glucose than required by the legal definition of the ingredient. As such, under federal law the product would be misbranded.
Federal Prohibition of Adulterated Foods
The FDA summarized its adulterated food policy in a guidance document to the food industry as follows:
“Any substance added to a beverage or other conventional food that is an unapproved food additive (e.g., because it is not GRAS for its intended use) causes the food to be adulterated under section 402(a)(2)(C) of the FFDCA (21 U.S.C. 342(a)(2)(C)). Adulterated foods cannot be legally imported or marketed in the United States.”[11]
HFCS that does not conform to the GRAS ratio of no more than 55% fructose is not GRAS for widespread use in the food supply. Under a plain reading of the FDA’s adulterated food policy, use of such a sweetener in a beverage would constitute the use of an unapproved food additive rendering the product adulterated.
False and Misleading Advertising
Federal and state laws generally prohibit false and misleading advertising. In 2008, the Corn Refiners Association launched a national multimedia advertising and public relations campaign called “Changing the Conversation about High Fructose Corn Syrup.”[12] The central message of the campaign is that HFCS is essentially the same as table sugar with respect to the ratio of fructose to glucose and is therefore safe:
“High fructose corn syrup is nearly identical in composition to table sugar — both contain approximately 50% glucose and 50% fructose. Sugar and high fructose corn syrup have the same number of calories as most carbohydrates; both have four calories per gram. Because they are nearly compositionally equivalent, the human body cannot tell the difference between high fructose corn syrup and sugar.”[13]
If additional testing of foods and beverages sweetened with HFCS reveals widespread actual fructose levels in excess of 55%, then the representation that HFCS is “compositionally equivalent” to table sugar could amount to false and misleading advertising requiring action by the Federal Trade Commission and State Attorneys General.
REFERENCES
[1] US FDA, Determining the Regulatory Status of a Food Ingredient, http://www.fda.gov/Food/FoodIngredientsPackaging/FoodAdditives/ucm228269.htm (Oct. 8, 2010).
[2] 21 CFR § 184.1866(a).
[3] Direct Food Substances Affirmed as Generally Recognized as Safe; High Fructose Corn Syrup, 61 Fed. Reg. Volume 165, 43448 (Friday, August 23, 1996) (to be codified at 21 CFR pt. 182-184).
[4] See US FDA, Letter to Food Manufacturers about “And/Or” Ingredient Labeling of Nutritive Sweeteners in Soft Drink Products, http://www.fda.gov/Food/LabelingNutrition/FoodLabelingGuidanceRegulatoryInformation/InspectionCompliance/WarningOtherLetters/ucm110252.htm (July 5, 2005).
[5] Emily E. Ventura, Jaimie N. Davis & Michael I. Goran, Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content, __Obesity__, 5 (2010) .
[6] Id. at 6.
[7] See id. at 5-6 (discuss the various health consequences of the metabolic process triggered by fructose vs. glucose).
[8] US FDA, Guidance for Industry: Estimating Dietary Intake of Substances in Food, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm074725.htm (August 2006).
[9] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/DietarySupplements/ucm196903.htm (Dec. 2009).
[10] 21 CFR § 184.1866(a).
[11] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods (Dec. 2009).
[12] Corn Refiners Association, Our Mission, http://www.sweetsurprise.com/about-us/our-mission.
[13] Corn Refiners Association , High Fructose Corn Syrup Myths, http://www.sweetsurprise.com/myths-and-facts/top-hfcs-myths.
[1] US FDA, Determining the Regulatory Status of a Food Ingredient, http://www.fda.gov/Food/FoodIngredientsPackaging/FoodAdditives/ucm228269.htm (Oct. 8, 2010)
[1] 21 CFR § 184.1866(a).
[1] Direct Food Substances Affirmed as Generally Recognized as Safe; High Fructose Corn Syrup, 61 Fed. Reg. Volume 165,43448(Friday, August 23, 1996)
(to be codified at 21 CFR pt. 182-184).
[1] See US FDA, Letter to Food Manufacturers about “And/Or” Ingredient Labeling of Nutritive Sweeteners in Soft Drink Products, http://www.fda.gov/Food/LabelingNutrition/FoodLabelingGuidanceRegulatoryInformation/InspectionCompliance/WarningOtherLetters/ucm110252.htm (July 5, 2005).
[1] Emily E. Ventura, Jaimie N. Davis & Michael I. Goran, Sugar Content of Popular Sweetened Beverages Based on Objective Laboratory Analysis: Focus on Fructose Content, __Obesity__, 5 (2010) .
[1] Id. at 6.
[1] See id. at 5-6 (discuss the various health consequences of the metabolic process triggered by fructose vs. glucose).
[1] US FDA, Guidance for Industry: Estimating Dietary Intake of Substances in Food, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm074725.htm (August 2006).
[1] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods, http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/DietarySupplements/ucm196903.htm (Dec. 2009).
[1] 21 CFR § 184.1866(a).
[1] US FDA, Guidance for Industry: Factors that Distinguish Liquid Dietary Supplements from Beverages, Considerations Regarding Novel Ingredients, and Labeling for Beverages and Other Conventional Foods (Dec. 2009).
[1] Corn Refiners Association, Our Mission, http://www.sweetsurprise.com/about-us/our-mission.
[1] Corn Refiners Association , High Fructose Corn Syrup Myths, http://www.sweetsurprise.com/myths-and-facts/top-hfcs-myths.
Daynard and Gottlieb publish Op/Ed in Boston Globe: “How to fight America’s obesity epidemic”
Tuesday, February 10th, 2009
The article, published on January 8, 2009, addresses some of the 47 policy recommendations that were discussed at our September, 2008 conference and appear in our report to the Obama administration.
PHAI Sends Obama Transition Team Obesity Policy Recommendations
Monday, November 24th, 2008
NEW FEDERAL APPROACHES TO OBESITY EPIDEMIC NEEDED:
Public Health Advocacy Institute at Northeastern University School of Law Provides Obama Transition Team with Legal and Policy Recommendations
BOSTON (Nov. 24– President-elect Barak Obama’s Health and Human Services Transition Team today was presented with a series of nearly 50 legal and policy recommendations designed to combat the nation’s obesity epidemic.
The document, developed by the Public Health Advocacy Institute (PHAI) at Northeastern University’s School of Law, was sent to the Transition Team by Richard Daynard, a professor at the law school and president of PHAI.
Download PHAI Obesity Policy Recommendations to Obama Transition Team
“Public health, unlike some other national assets, cannot be ‘rescued’or ‘bailed out,’” Dayard wrote in a cover letter. “A sophisticated and aggressive federal approach to obesity is desperately needed.
“Such an approach could save countless lives and reduce the devastating consequences of this epidemic while meaningfully connecting with healthcare, agriculture and energy policies,” said Mark Gottlieb, Executive Director of the Institute.
“A failure of federal obesity policy would have untenable public health andeconomic consequences.”
The report from PHAI, a non-profit law and policy research organization, was based on recommendations developed by a group of leading national and international experts at a conference at Northeastern on stopping the obesity epidemic earlier this fall.
The conference, co-sponsored by Public Health Law & Policy (PHLP) of Oakland, CA, brought together legal scholars, health policy advocates, and government officials.
The recommendations (www.phaionline.org) include such areas as the economic and social aspects of dietary behavior, ensuring equal access to healthy food and physical activities, food marketing regulations, and menu labeling laws.
Download PHAI Obesity Policy Recommendations to Obama Transition Team (pdf)
PHAI Publishes Presentation Slides from Fifth Conference on Public Health, Law and Obesity
Thursday, October 16th, 2008
The Public Health Advocacy Institute held its Fifth Conference on Public Health, Law, and Obesity on September 19-21, 2008. It was entitled “A Time for Action: An Obesity Agenda for the Next Administration” and was co-sponsored by Public Health Law and Policy.
Many of the speakers have permitted us to release the slides they presented to the conference attendees. In the list of panel topics and speakers below, click on the links to that speaker’s slides. Note that you must have a “PDF” reader in order to view these slides.
Overview of the Public Health/Nutrition Picture:
- Marion Nestle, PhD, MPH – NYU Dep’t Nutrition, Food Studies & Public Health [slides-12mb]
Overview of the Legal and Policy Picture:
- Marice Ashe, JD, MPH – Public Health Law and Policy [slides-3mb]
Overview of Important Disparity Issues:
Presidential Candidates’ Statements on Obesity and Discussion
- Mark Gottlieb, JD – Public Health Advocacy Institute [slides]
Economic and Social Aspects of Dietary Behavior: Discussion of adjusting social norms about food choice and consumption through changing cultural norms, and pricing strategies.
- Jamie Chriqui, PhD – University of Illinois at Chicago [slides -1mb]
- Michel Chauliac, MD – French Ministry of Health [slides]
- Kathryn Henderson, PhD – Rudd Center for Food Policy and Obesity, Yale Univ. [slides]
- Jason Smith, JD, MTS – University of Connecticut, School of Medicine [slides]
Federal Food/Nutrition Initiatives and Implications for Food Reform: Discussion of the recently reauthorized Farm Bill, including strategies to adjust the NSLP and implementation and future reauthorizations to address the obesity. Included will be a Q&A on nutrition standards and food system options.
- Kenneth Hecht, JD – California Food Policy Advocates
- Susan Roberts, JD, MS, RD – Food and Society Policy Fellows Program [slides]
- James Weill, JD – Food Research & Action Center [slides]
Marketing: Examination of food marketing and potential regulatory strategies both in the US and abroad.
- Kathy Baylis, PhD – University of Illinois at Chicago [slides]
- Amandine Garde, PhD – Centre of European Legal Studies, University of Exeter [slides-13mb]
- Neville Rigby – International Obesity Task Force, London [slides-1mb]
- Emily York – Advertising Age [slides]
Menu Labeling: Effective Menu Labeling Strategies from both the East and West Coast.
- Jane McKenzie, JD – Prosecutor’s Office, King County, WA [slides]
- Lynn Silver, MD – New York City Department of Health and Mental Hygiene
- Paul Simon, MD, MPH – Los Angeles County Department of Public Health [slides]
Physical Activity and the Transportation Bill Reauthorization: Policy issues and solutions to increasing physical activity in children and adults through transportation policy, zoning, school policy adjustments, and regulation.
- Angie Cradock, ScD – Harvard School of Public Health
Policy Implications of Childhood and Adult Obesity: Allocating policy focus between childhood and adult obesity.
- Lori Dorfman, DrPH – Berkeley Media Studies Group [slides]
- David Ludwig, PhD, MD – Children’s Hospital Boston [slides-1mb]
- Kevin Ryan, JD, MA – Arkansas Center for Health Improvement
