FDA Commissioner Scott Gottlieb Proposes Sweeping Label Updates – COMMENTS OPEN

by Diana Winters

On March 29, FDA Commissioner Scott Gottlieb spoke at the Consumer Federation of America’s National Food Policy Conference about how the agency “can make further improvements in public health by both empowering consumers with information and facilitating industry innovation toward healthier foods that consumers want.” He focused not just on reducing chronic disease, but also on how better information can help to narrow nutrition and health disparities.

As to specific steps, Commissioner Gottlieb discussed: (1) modernizing health claims, (2) re-defining “healthy”, (3) changing the process by which the agency reviews qualified health claims, (4) clarifying the term “natural”, and (5) modernizing the names for ingredients, and standards of identity. He also talked about implementing the new nutrition facts label and menu labeling rules, and working on reducing sodium in foods.

You can watch the speech here.

For an administration committed to deregulation, Commissioner Gottlieb’s stance is surprising, and exciting. The Center for Science in the Public Interest provided FDA with some great preliminary suggestions for moving forward. I’m opening comments for this post – what do you think about Commissioner Gottlieb’s speech? What should or shouldn’t FDA do?

N.Y. Times on animal antibiotics in animal feed

There was a really interesting article on the use of antibiotics in animal feed in the N.Y. Times last week. Two very interesting takeaways: (1) the article highlights the flaws in FDA’s initiative to prohibit the use of antibiotic for growth promotion—as many critics noted, allowing companies to use these drugs for disease “prevention” is essentially a loophole, and (2) the market is eclipsing regulation in the context of antibiotics, as consumers increasingly demand antibiotic-free meat.

Further reading:

  • Emilie Aguirre wrote about California’s stricter rules and democratic experimentalism here.
  • Lisa Heinzerling wrote about the FDA’s poor record on animal antibiotics here.
  • I link to some resources on the background of this issue in a 2014 blog post, here.

N.Y. Times article: U.S. influence on Nafta talks regarding junk food warning labels

The New York Times reported today that in trade talks with Mexico and Canada, the Trump administration is trying to prevent Nafta’s members, including the United States, from using warning labels on junk food.  In 2016, Chile introduced black stop-sign warnings on food that was high in calories, sodium, sugar, or saturated fat, and the Times reports that Mexico and Canada are considering imposing similar regulations.  Mexico currently has one of the highest death rates from diabetes in the world.  The Office of the United States Trade Representative, however, “is pushing to limit the ability of any Nafta member to require consumer warnings on the front of sugary drinks and fatty packaged foods,” which aligns with the wishes of certain beverage and packaged food manufacturers in the United States.  The article can be found here: https://www.nytimes.com/2018/03/20/world/americas/nafta-food-labels-obesity.html

Media coverage of food desert analysis

by Diana R. H. Winters

Last week, in an article titled “Food deserts may not matter that much,” The Economist reported on a study by three scholars finding that when trying to account for the disparity in eating patterns between rich and poor people, the answer may not be in the availability of healthy food. In “The Geography of Poverty and Nutrition: Food Deserts and Food Choices Across the United States,” Hunt Allcott, Rebecca Diamond, and Jean-Pierre Dubé found that although it is true that “there is a meaningful nutrition-income relationship in grocery purchases,”—that people with more money buy more healthful food—this is not due to the supply, or lack thereof, of healthy food in lower income neighborhoods. The authors looked at the effect of the entry of new stores carrying healthy food options into neighborhoods that had previously had fewer healthy options, concluding that there was little effect “on the composition of the shopping basket.” This is because people were willing to drive to supermarkets if there were no supermarkets in their neighborhoods. A new market may reduce transport costs, but did not change individual preferences. These findings cast doubt on the “food desert” hypothesis, which explains the fact that poor people eat less healthfully by pointing to the lower availability of healthy food in lower income neighborhoods.

This is not the first study to question the food desert hypothesis. Earlier studies have found, among other things, that putting new stores into underserved neighborhoods without other interventions to change shopping and eating habits may not have the effect on dietary choices or obesity rates that had been predicted. In this extremely comprehensive new study, the authors buttressed policy suggestions with rigorous empirical work. They found, as did the earlier studies, that changing demand was more important than changing supply, and that increasing people’s knowledge about food could be an important driver of change. For this reason, “policies geared toward nutrition education may be more effective than subsidies and grants geared toward food retailers.”

The policy conclusion that public money is better spent in education than in retail is a significant one, and a progressive one. The coverage of this study in The Economist, however, is anything but. Instead, the article’s focus, encapsulated by its title, is that the availability of healthful food may not affect food-related health outcomes as much as once thought. Instead, the article tells us that it is preference, not availability, which drives food purchasing. Although it notes that preference may be influenced by education, the article does not mention that the authors of the study it covers emphasize the need to shift our food policy dollars. And without noting that preference itself is formed by historical forces, including generations of poor supply and lack of access to education about nutrition in lower income neighborhoods, readers are left to assume that a preference for unhealthy food is an individual and personal failure.   By doing this, The Economist’s article erases the institutionally supported and sanctioned inequality that partially created the obesity epidemic and its related problems, reinforces the perception that government has no place in food policy, and shifts the burden from public to private responsibility for the solution.

 

Government subsidized loan programs for chicken facilities and Becerra v. The Coca-Cola Co.

Late last week I read two interesting short pieces on food law, one an email to a listserve by Susan Schneider, a Professor of Law and the Director of the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law on using government subsidized loans to build chicken facilities for contract production, and one a Public Citizen blog post by Stephen Gardner, former litigation director for the Center for Science in the Public Interest, criticizing the Northern District of California District Court’s recent opinion in Becerra v. Coca-Cola. 

Professor Schneider wrote the following:

For a long time, I have questioned the use of government subsidized loan programs through USDA and SBA to fund the huge loans needed to build chicken facilities for contract production.  As noted in Food, Farming, & Sustainability, I have argued that those loans supported the one-sided contracts that are used throughout the industry. Lenders would rarely fund operations based on these short term and risk laden contracts without a government guarantee.  In this regard the subsidized lending programs, designed to help small business, have actually been used to support the integrated industry. 

The SBA Office of Inspector General has just published a report that lends support to this analysis. It provides a good description of the contractual relationship, the risks associated with the contract terms, and the role of  SBA in supporting this system of production. And, it is a fascinating look at the billions of dollars of SBA loans going to poultry growers. It finds that the control exercised by the integrator is so extensive that the integrator and the grower are “affiliated enterprises,” and that as such, about $1.8 billion in loans should have been ineligible.  “SBA guaranteed loans to affiliative enterprises are inconsistent with its stated mission to assist small business concerns.”  

For anyone writing or teaching about the system that produces our inexpensive and abundant  supply of poultry, I highly recommend this report. 

Evaluation of SBA 7(A) Loans Made to Poultry Farmers, SBA OIG, Rep. No. 18-13 (Mar. 6, 2018). 

Appreciation to Politico, Morning Ag Report for bringing this report to my attention.

 

The link to Mr. Gardner’s piece is here: http://pubcit.typepad.com/clpblog/2018/03/illustration-of-the-problem-of-judges-substituting-their-own-opinions-of-facts.html

 

Bringing Sustainable Plant-Based Eating to the Planet–David Yeung talks at UCLA Law

by Cheryl Leahy, The Initiative on Animals in Our Food System, Resnick Program for Food Law and Policy

The Initiative on Animals in Our Food System at the Resnick Program for Food Law and Policy hosted a discussion with David Yeung titled, “Bringing Sustainable Plant-Based Eating to the Planet: The Entrepreneurship, Investment, and Philanthropy of Hong Kong’s David Yeung and Green Monday” on March 6th at UCLA. Mr. Yeung is an award-winning social entrepreneur whose companies, Green Monday, Green Common, and Green Monday Ventures, take different approaches to solving the same problem – how to bring sustainable vegan eating to the planet. He jokingly nicknamed his companies the “Swiss army knife” of green and sustainable eating, for the diversity and efficacy of their approaches.

Mr. Yeung presented historical and factual background on the environmental and health impacts of animal agriculture and consumption and explained how he himself learned about the enormous effects the production of meat for human consumption has on the earth. He explained how cultural and market forces can be key tools in achieving change, an understanding of which led him to the launching of his companies.

Mr. Yeung imagined Green Monday as a way to reach a broad audience, asking people to reduce their animal product consumption at least one day per week as an intermediary stepping-stone to an increased reduction. Green Monday and its related companies accomplish this by partnering with institutions, including schools, restaurants, and corporations, as well as by running storefront sales showcasing plant-based foods from around the world, and by investing in and developing vegan companies and products. Since its inception six years ago, Green Monday’s reach has grown to 33 countries, with 1.6 million participants in its Hong Kong home.

David Yeung at UCLA Law

The Initiative on Animals in Our Food System at the Resnick program for Food Law and Policy, Emmett Institute on Climate Change & the Environment, Lowell Milken Institute for Business Law & Policy, UCLA Food Law Society, and UCLA Environmental Law Society invite you to hear David Yeung on Bringing Sustainable Plant-Based Eating to the Planet.  At this event, Mr. Yeung will discuss investing in and launching vegan businesses, exploring investment factors, unique problems, and legal and practical issues.

Tuesday, March 6, 2018

12:15-1:15pm

NEW LOCATION:      W.G. Young Hall, Room CS76

UCLA South Campus (across from Parking Structure 2)

 

Everything You Need To Know About The Upcoming Farm Bill Debate

 

With media attention focused on so many high-profile issues occupying Congress, the renewal of the farm bill has flown under the radar. The farm bill, which is a massive piece of legislation that addresses many aspects of the US food system—including food production, conservation, nutrition policy, and food access—must be passed every five to seven years. The latest farm bill, known as the Agricultural Act of 2014, was signed in February 2014, and many provisions of this bill expire in 2018. The US House and Senate Agriculture Committees have been holding hearings since early 2017 to gather information about important issues from members of the agricultural and nutrition communities. After the hearings and a budget determination by the Congressional Budget Office (CBO), each agriculture committee will report full drafts of the bill to the floor. The bills when passed by each house will then be reconciled by a joint committee, the reconciled bill will be returned to both houses for a vote, and, if all goes well, be sent to the president to sign. The complexity of this process is magnified by the size and reach of the farm bill.

The 2014 farm bill has 12 titles, covering price and income support for farmers, crop insurance, nutrition programs (including the Supplemental Nutrition Assistance Program [SNAP]), specialty and organic crop programs, conservation, and trade, among other things. The CBO projected that the 2014 farm bill would cost approximately $95 billion a year, with about $75 billion of that going to nutrition programs, and most of that to SNAP funding. It is no surprise, therefore, that these nutrition programs are always a controversial part of farm bill reauthorization. The mechanisms embedded in the farm bill to assist farmers with price supports for certain commodities also implicate nutrition policy and are a contentious subject. This post highlights these and several other issues that will dominate discussion as the next farm bill reauthorization process moves forward.

Nutrition—Title 4

Questions of whether nutrition programs should remain part of the farm bill, and whether food assistance programs should be reformed, will be prominent in 2018 farm bill debates. Nutrition contains three subtitles—the Supplemental Nutrition Assistance Program, the Commodity Distribution Program, and Miscellaneous Programs. The Department of Agriculture (USDA) began supplying people with food stamps in 1939, requiring users to buy surplus food with the stamps. The program continued in the 1960s, but the surplus requirement was eliminated. In 1973, the food stamps program was incorporated into the farm bill, and the name was changed to SNAP in 2008 to fight the stigma of food stamps. The Commodity Distribution Program gives the USDA the authority to purchase food for school lunches and for direct distribution to those in need, including to food pantries, food banks, and programs that supply food directly to households. The Miscellaneous subtitle includes initiatives such as a farmers’ market program for seniors and a farm-to-school pilot program.

The incorporation of the nutrition title into the farm bill increased support for the bill from urban legislators, adding to its traditional support from rural districts, but the marriage of the subjects has been strained. In 2013, the House of Representatives tried to remove the nutrition title from the 2014 farm bill, but that version of the bill did not pass. Critics of the combination, including the conservative Heritage Foundation, argue that the food stamp program is in need of reform and that as a step toward that reform the nutrition title should be removed from the farm bill. The Trump administration’s USDA, however, has not issued a strong call to remove the nutrition title from the farm bill, instead focusing on reforming the SNAP program in its articulated priorities for the bill.

In the USDA’s 2018 Farm Bill and Legislative Principles document, issued at the end of January 2018, it calls for SNAP benefits to be connected to work requirements. The USDA will continue to “support work as the pathway to self-sufficiency, well-being, and economic mobility for individuals and families receiving supplemental nutrition assistance.” This is consistent with the administration’s broader efforts to connect public benefits to work requirements, as in the Medicaid program. There are already requirements in place for able-bodied adults without dependents, who can receive SNAP benefits for no more than three months in three years if they do not meet work requirements, although not all states take away benefits for noncompliance. Secretary of Agriculture Sonny Perdue has expressed, in public meetings around the country, that the administration would like to move more people off SNAP, partly by tightening the work requirements for these able-bodied adults.

Commodities—Title 1

The price and income supports that the farm bill gives to certain commodity producers have historically been vigorously argued and that contentiousness has already begun this time around. These price supports were the reason the first farm bill was established during the Great Depression—the government purchased excess commodities and provided payments to farmers not to overproduce, thereby stabilizing the market—and they persisted for decades. In the 1990s, Congress “tried to wean farmers from subsidies and let the market dictate prices” by eliminating direct payments to farmers. After prices dropped, however, Congress reintroduced direct payments. In the 2014 farm bill, Congress expanded the crop insurance program (Title 11) and introduced two programs in lieu of direct payments—Price Loss Coverage and Agricultural Risk Coverage.

The traditional design of price and income supports has been criticized by both conservative and progressivecommentators for years because these supports have been awarded to farms every year, even when times were good; have been based on production, leading the biggest farms to receive the most subsidies; and are susceptible to fraud. There is also evidence that the expansion of crop insurance in 2014 increased costs for the government, the opposite of the intended effect. Moreover, the supports are only available for certain “major” commodities, including corn, soybeans, wheat, barley, and oats, not fruits and vegetables, which fall under a different title—Title 10—Specialty Crops and Horticulture. For decades, critics of the programs have argued that these governmental subsidies have artificially lowered the price of crops that are used to make processed food, thereby increasing the availability of these foods and negatively affecting the health of Americans. This connection was at issue during the 2014 farm bill debate and will most likely be an issue during the debate over the 2018 bill.

Specialty Crops And Horticulture—Title 10

Specialty crops, which are defined as “fruits and vegetables, tree nuts, dried fruits, and horticulture and nursery crops (including floriculture),” have only been included in the farm bill since 2008. Support for these crops is only a small portion of the farm bill, and the support is structured differently than that for commodity crops. As described by the Congressional Research Service, the support is indirect and benefits producers as a whole, not individually—“These types of programs include marketing and promotion programs, crop insurance and disaster assistance, plant pest and disease protections, trade assistance, and research and extension services, among other types of indirect support.” In addition to support for specialty crops, the Horticulture title provides funds for farmers’ markets and the promotion of local foods and to benefit producers of certified organic foods.

Issues involving specialty crops include whether funding should be increased for price and income supports for these crops and whether crop insurance (Title 11) should be expanded to include more producers of fruits and vegetables.

Conservation—Title 2

The farm bill contains both mandatory and voluntary conservation programs. For example, before receiving crop insurance premium support, producers must show that they have complied with certain conservation programs regarding highly erodible lands and wetlands. The 2014 Conservation Title contains approximately 10 conservation programs, including the Conservation Reserve Program, which pays farmers to replace crops on highly erodible lands and wetlands with conservation plantings, and the Equipment Quality Incentives Program, which provides assistance to farmers to implement practices that will conserve environmentally sensitive land.

Critics of the farm bill’s conservation programs argue that the farm bill as a whole has encouraged agriculture that is environmentally devastating and that price and income supports and crop insurance policies need to be reworked to encourage sustainable agriculture, in addition to a reworking of the conservation title. Moreover, the conservation title needs to include resources to measure how well its programs work.

In 2015, the Dietary Guidelines Advisory Committee recommended that the Guidelines include sustainability as part of its dietary advice. Ultimately, the recommendation was not followed, but this issue will come up again when the 2020 Dietary Guidelines are discussed. A renewed emphasis on conservation in the 2018 farm bill may resonate with this recognition of the connection between dietary health and environmental sustainability.

In short, the farm bill has an immense effect on the US food system, including in its mechanisms for encouraging which crops are produced and in what way, and in the bill’s control over our nation’s main food assistance program, SNAP. Its complexity and diffuse nature obscure the interconnectedness of the bill, and the political nature of so many of its provisions makes it all the more difficult to assess the legislation as a whole.

by Diana R. H. Winters

Crossposted from Health Affairs blog

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