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.
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.
A list of CARU case reports. Click on the image above to view a larger version.
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
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.
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.
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
Original Post
——————————————————————————————–
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
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).
[Adapted from Richard A. Daynard’s presentation to the 2013 Annual Meeting of the Association of American Law Schools’ Agriculture and Food Law section, January 5, 2013.]
Soda consumption is a major contributor to adolescent obesity.1 Fortunately, soda consumption has been declining recently,2 presumably as a result of adverse media attention and policy initiatives like the ban on most sugar-sweetened beverages in schools.
PepsiCo has decided to do something about that, and has designed its “Live for Now” campaign in an effort to reverse the decline in teenage soda consumption. The campaign takes advantage of known adolescent vulnerabilities which result from the facts that the inhibitory structures of their brains are not fully developed, hormonal changes further reduce inhibitions while lowering self-esteem, and their psychosocial development focuses on identity formation and social acceptance.3 As a result they tend to be impulsive, thrill-seeking, and “now”-oriented. While they may rationally balance perceived risks and benefits, doing so does not necessarily inure to their best long-term interests.
Pepsi’s Live for Now campaign, like the infamous Joe Camel campaign used by R.J. Reynolds, is designed to prey upon these adolescent vulnerabilities in an effort to reverse declining consumption trends as well as to market a particular product.
Unlike cigarette advertisers, Pepsi is free to take its campaign to the airwaves. It will do so in a big way when it will sponsor the Superbowl Halftime Show featuring Beyoncé, who recently entered into a $50 million endorsement deal with PepsiCo.
The Federal Trade Commission could bring an enforcement action under its unfairness jurisdiction, and state attorneys general and private attorneys could seek injunctive relief under state consumer protection laws.
But little is likely to happen unless public outrage is focused on this campaign, and unless regulators and judges learn more about the biological and developmental underpinnings of faulty adolescent decision-making.
References:
1. Ludwig DS, Peterson KE, Gortmaker SL. Relation between consumption of sugar-sweetened drinks and childhood obesity: a prospective, observational analysis. Lancet 2001; 357: 505–508.
2. Strom, S. (2012). “Soda Makers Scramble to Fill Void as Sales Drop.” The New York Times, May 15, 2012.
3. Pechman, Cornelia, Linda Levine, Sandra Loughlin, and Frances Leslie (2005), “Impulsive and Self-Conscious: Adolescents’ Vulnerability to Advertising and Promotion,” Journal of Public Policy & Marketing, 24 (Fall), 202-221.
Research assistance by Brendan Burke and Cara Wilking
Support for this research was provided, in part, by the National Cancer Institute (2R01CA087571).
As part of its 2012 Olympic Games marketing blitz, the Coca-Cola Company has assembled a “Coca-Cola 8-pack of Athletes” to “serve as Coca-Cola ‘Ambassadors of Active Living’ to help encourage and inspire people to lead active, balanced lives.”[1] This group includes Jessica Long, a 2012 U.S. Paralympic Swimming Team nominee.[2] Ms. Long was born with fibular hemimelia, a condition of the lower legs, and became a double leg amputee at 18 months old.[3] Ms. Long’s athletic achievements are undeniable and her seamless inclusion in the marketing campaign is in line with equality and dignity for all. The tragic reality of lower limb loss, however, is that the majority of people suffering from non-traumatic lower limb loss are diabetic, and it is not medically appropriate for diabetics to consume sugar-sweetened beverages.
From what has been released of the campaign so far, the “Coca-Cola 8-Pack of Athletes” promotes full-sugar Coca-Cola. Ms. Long is no exception. Her commercial, entitled “Home,” shows her swimming as a child in her grand-parents’ backyard pool and moves through a range of global swim competitions.[4] The commercial ends with Ms. Long drinking from a bottle of full-sugar Coca-Cola. Cans of full-sugar Coca-Cola are shown next to the tagline “Open Happiness” and an announcer says, “Support our athletes with the Cola-Cola Olympic Series Collector’s Cans.” In other words, “Buy Coke!”
If one of the goals of Coca-Cola’s “8-pack of Athletes” campaign is to inspire people, including those suffering from limb loss, to lead active lives, then why does the campaign promote a product diabetics are under doctor’s orders to avoid?
Sugar-sweetened beverages like Coca-Cola are associated with obesity-related diseases including Type 2 Diabetes.[5] The Centers for Disease Control estimates that as many as 1 in 3 U.S. adults could have diabetes by 2050.[6] The links between diabetes and limb loss are stark and tragic:
Diabetes is the leading cause of non-traumatic lower limb amputation among adults in the United States.[7]
More than 60% of non-traumatic lower-limb amputates are people with diabetes.[8]
In 2008, more than 70,000 people with diabetes had a leg or foot amputated [9]
Diabetes rates for people aged 20 years or older are:
African Americans and Hispanics are almost 3 times as likely as non-Hispanic whites to suffer from lower-limb amputations[11], [12]
Researchers estimate that the number of people in the United States with diabetes who are living with the loss of a limb will nearly triple by the year 2050.[13]
As inspiring as Ms. Long’s journey is, for many people living with the loss of a limb there is no “happiness” to be found in a can of Coke—a fact the Coca-Cola Company seems to have overlooked.
[5] Vasanti S. Malik et al, Sugar-Sweetened Beverages, Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk, 12 Circulation, 1356-1364 (2010).
[6] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Press Release, Number of Americans with Diabetes Projected to Double of Triple by 2050, http://www.cdc.gov/media/pressrel/2010/r101022.html.
[12] National Limb Loss Information Center, Minorities, Diabetes and Limb Loss (May 2008), http://www.amputee-coalition.org/fact_sheets/multicultural/all_groups.pdf (citing Robert Preidt, Blacks, Hispanics Hospitalized More Often for Diabetes, Heart Disease, HealthDay: News for Healthier Living, August 15, 2006.
[13] Kathryn Ziegler-Graham et al, Estimating the Prevalence of Limb Loss in the United States: 2005 to 2050, 89 Archives of Physical Medicine and Rehabilitation 422, 424 (March 2008).
PHAI senior staff attorney Lissy Friedman and executive director Mark Gottlieb collaborated with Lori Dorfman, Andrew Cheyne and Asiya Wadud of the Berkeley Media Studies Group to produce this article published today in PLoS Medicine.
Soda companies’ PR campaigns are bad for health:
Health advocates need to organize strong public health campaigns to educate the public and policymakers about the dangers of both sugary beverages and the misleading industry corporate social responsibility campaigns that distract from their products’ health risks, according to US experts writing in this week’s PLoS Medicine.
In a Policy Forum article, the authors (media and public health experts from the Berkeley and Boston, USA) examined prominent campaigns from industry leaders PepsiCo and Coca-Cola, that, according to the authors, have embraced corporate social responsibility (CSR) with elaborate, expensive, and multinational campaigns.
The authors say that while soda companies may not face the level of social stigmatization or regulatory pressure that now confronts Big Tobacco, concern over soda and the obesity epidemic is growing.
In response to health concerns about their products, the authors argue that soda companies have launched comprehensive CSR initiatives sooner than did tobacco companies but that these campaigns echo the tobacco industry’s use of CSR as a means to focus responsibility on consumers rather than the corporation, bolster the companies’ and products’ popularity, and to prevent regulation.
However, unlike tobacco CSR campaigns, soda company CSR campaigns explicitly target young people and aim to increase sales.
The authors say: “It is clear that the soda CSR campaigns reinforce the idea that obesity is caused by customers’ “bad” behavior, diverting attention from soda’s contribution to rising obesity rates.” They continue: “For example, CSR campaigns that include the construction and upgrading of parks for youth who are at risk for diet-related illnesses keep the focus on physical activity, rather than on unhealthful foods and drinks. Such tactics redirect the responsibility for health outcomes from corporations onto its consumers, and externalize the negative effects of increased obesity to the public.”
The authors argue: “Emerging science on the addictiveness of sugar, especially when combined with the known addictive properties of caffeine found in many sugary beverages, should further heighten awareness of the product’s public health threat similar to the understanding about the addictiveness of tobacco products.”
They conclude: “Public health advocates must continue to monitor the CSR activities of soda companies, and remind the public and policymakers that, similar to Big Tobacco, soda industry CSR aims to position the companies, and their products, as socially acceptable rather than contributing to a social ill.”
This article is one in a PLoS Medicine series on Big Food that examines the activities and influence of the food and beverage industry in the health arena. The series runs for three weeks beginning 19 June 2012 and all articles will be collected at www.ploscollections.org/bigfood. Twitter hashtag #plosmedbigfood
Funding: This research was supported by the Healthy Eating Research program (http://www.healthyeatingresearch.org/) of the Robert Wood Johnson Foundation, grant #68240. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.
The Public Health Advocacy Institute is asking the FDA to investigate and take enforcement action against The Coca-Cola Company’s unlawful use of heart health claims on cans of Diet Coke. In February of 2010, 2011 and 2012, The Coca-Cola Company has released Diet Coke cans labeled with a large red heart symbol, the National Heart Lung and Blood Institute’s “The Heart Truth” Red Dress logo, and references to women’s heart health. Taken together, the large red heart symbol, the Red Dress logo and references to heart health imply a relationship between consuming a specific food, Diet Coke, and reduced risk for heart disease. The cans pictured below represent the cans in circulation in 2012 (left), 2011 (center) and 2010 (right).
The FDA defines health claims to include “any claim made on the label or in labeling of a food…that expressly or by implication, including ‘third party’ references, written statements (e.g., a brand name including a term such as ‘heart’), symbols (e.g., a heart symbol), or vignettes, characterizes the relationship of any substance to a disease or health-related condition.” 21 CFR § 101.14 (a)(1). In its food labeling guidance the FDA states, “ health claims characterize a relationship between a substance (specific food component or a specific food) and a disease (e.g., lung cancer or heart disease) or health-related condition (e.g., high blood pressure), and are supported by scientific evidence (see 21 CFR 101.1472).” FDA, Guidance for Industry: A Food Labeling Guide (April 2008), http://www.fda.gov. The use of the heart symbol, the phrase “The Heart Truth” and the reference to a national health organization implies that Diet Coke consumption is beneficial to heart health. This claim is not supported by scientific evidence and is not otherwise allowed under FDA regulations.
This type of misbranding is especially damaging to the public because it unequivocally links the product to a desired health outcome through multiple uses of the word “heart” and the use of a heart symbol—expressly the type of symbols, third party references and words the FDA references in its regulations and guidance on health claims for the food industry. The FDA should act immediately to investigate The Coca-Cola Company’s unlawful use of this health claim, issue the appropriate warning letter and take enforcement action as necessary.
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.
