The foodralist paradigm

by Diana R. H. Winters

Laurie Beyranevand at the Vermont Law School and I wrote a paper about striking a balance between federal and state decision-making in the area of food policy, called Retooling American Foodralismand the University of Pennsylvania’s Regulatory Review wrote a thoughtful analysis of the paper here.  In the article, author Nicholas Bellos writes:

“[F]or an industry as sprawling and complex—and vital—as the nation’s agricultural sector, should states be the principal actors ensuring consumer safety?

In a recent paper, two scholars argue that they should. University of Vermont Law School’s Laurie Beyranevand and University of Indiana Robert H. McKinney School of Law’s* Diana Winters say that more states should take initiative like California to enact food safety regulations of their own, rather than depend on federal regulators to lead the way. The balance between federal and state decision-making—what they call “foodralism”—needs to tilt more toward state governments, they argue. States need to fill the gaps in the current patchwork of U.S. food regulations and serve as laboratories for developing new rules and standards.”

Retooling American Foodralism is forthcoming in the American Journal of Law and Medicine.

 

*Although I used to be at I.U. McKinney, I am now the Assistant Director of Scholarship at the Resnick Center for Food Law & Policy at UCLA Law.

 

MSU Global Food Law Current Issues Conference

by Diana Winters

I was lucky over the last few days to attend and present at the MSU College of Law Global Food Law Program’s fantastic Global Food Law Current Issues Conference. At the conference there was a mix of academics, practitioners, scientists, and industry representatives, and a truly global focus. Wednesday’s discussions of dietary supplement labeling, developments in organic foods, issues regarding animal food labeling were fascinating, and the keynote on food litigation by Bill Marler, was, for a food law aficionado, a dream come true. Thursday’s talk on professional consumers in China and their effect on food safety provided an opportunity to reflect on the absence of a citizen suit provision in the FDCA, and the discussion of new technologies in product supply chains was a chance to engage with blockchain, 3D printing, and other fun stuff. These are only a few highlights of the conference, which also included discussions of intellectual property, food security, and innovation in the food space, as well as opportunities to explore the food and environment of greater Lansing, Michigan. Note: if you find yourself in East Lansing, don’t miss the Zaha Hadid designed Broad Museum of Art—a short walk from campus (picture above).

 

The value of a conference that provides a space for academics, practitioners, and scientists to meet and mingle is immense, and I’m so glad I went.

Nutrition Education in the 2018 Farm Bill

by Julia McCarthy

 

The House Committee on Agriculture recently failed to pass its version of the farm bill, legislation that sets farm and food policy every five years. Despite obesity rates looming at all-time highs, H.R. 2 Agriculture and Nutrition Act of 2018 proposed to weaken the very programs we know improve diets—the Supplemental Nutrition Assistance Program (SNAP), SNAP Education (SNAP-Ed), and the Expanded Food and Nutrition Assistance Program (EFNEP).[1] The changes H.R. 2 proposed would have disrupted local nutrition education services, affecting already vulnerable individuals. Understanding how these changes would have harmed public health and public health infrastructure could prevent the Senate from including these misguided provisions in its version of the farm bill.

Protecting SNAP is and should be advocates’ priority. Preserving programs that enhance food assistance and promote healthy eating is also crucial to our nation’s health. Program participants, media, and advocates have articulately denounced cuts to SNAP.[2] Less has been written about the concerning changes being proposed to our nation’s largest nutrition education program. Below, I explain what the term “nutrition education” means, how the farm bill affects nutrition education, and why the proposed changes are problematic. I also suggest several ways to provide stronger, more effective support for nutrition education.

What is Nutrition Education?

Nutrition promotion; obesity prevention; consumer education; food literacy; food policy, systems, and environmental change—these are just a few of the many names people use to describe nutrition education. Nutrition education has so many names because, as the widely-accepted definition for the term explains, it involves “any combination of educational strategies accompanied by environmental supports” that provide people with the motivation, skills, and knowledge to eat well.[3] Cooking demonstrations, gardening lessons, school wellness policy support, healthy retail projects, and recipe distribution are all examples of nutrition education for which the farm bill provides funding.[4]

In fact, there are at least 26 initiatives that can support nutrition education included in the farm bill. For some initiatives, nutrition education is both the main focus and required. SNAP-Ed, which funds direct education for low-income individuals as well as policy, systems, and environment changes in schools, stores, and other community locations, is an example.[5]

Other initiatives have a main focus distinct from nutrition education, such as providing food, but still require such education. The Commodity Supplemental Food Program (CSFP), which provides low-income seniors food and resources such as recipes, is an example of this second type of initiative.[6]

Others still have a broader main focus—such as increasing fruit and vegetable sales—and allow, but do not require nutrition education. The Specialty Crop Block Grant, which states have used to support farm to school programs, is an example of this third kind of initiative.[7] See Table 1 below for a full list of nutrition education initiatives in the farm bill.

Table 1: Nutrition Education in the Farm Bill[8]

McCarthy.table

How the 2018 House Bill Would Have Affected Nutrition Education

The House Bill would have altered the structure of many of these initiatives, but most importantly, it would have combined the two largest nutrition education programs, SNAP-Ed and EFNEP. To combine the programs, H.R. 2 reallocated responsibility for SNAP-Ed from United States Department of Agriculture (USDA) Food and Nutrition Service (FNS) to USDA National Institute of Food and Agriculture (NIFA), the agency currently responsible for EFNEP. The bill repealed EFNEP, but maintained funding for the combined program at a level similar to current funding and added $65 million in annual discretionary funding.

At the state level, H.R. 2 shifted primary administrative responsibilities for SNAP-Ed away from state agencies to land grant universities (LGUs). The bill also altered states’ funding formula, basing future funding only on a jurisdiction’s current SNAP population, and not in any part on historical funding levels. Ultimately, merging SNAP-Ed and EFNEP as proposed would have created potential problems while failing to measurably improve either program:

  • Taking SNAP out of SNAP-Ed—Naming NIFA, rather than FNS as the administering agency for SNAP-Ed, would decouple the program from SNAP and other FNS low-income nutrition education programs. At the federal level and through regional offices, FNS coordinates numerous nutrition education initiatives such as SNAP-Ed, Team Nutrition, and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Moving SNAP-Ed to NIFA, a research focused sub-agency, would create inefficiencies, not improve coordination.
  • Shifting Administrative Responsibilities to Land Grand UniversitiesGiving LGUs primary administrative responsibility for SNAP-Ed is also problematic. LGUs are one of several important agencies that administer SNAP-Ed; health departments and community-based nonprofits also administer the program. If LGUs were solely responsible for administering SNAP-Ed funds, they could choose not to share funds with other agencies, impacting the diversity and reach of organizations that implement the program.

Even if LGUs were to share funding, sub-contracting would be difficult; LGUs typically do not have contract managers the way state social services and health departments do. Many LGUs would need to create new administrative systems to manage SNAP-Ed, though this infrastructure already exists in other state agencies. And, realistically, LGUs would have trouble spending less than 10% of grant funds on administration, as the bill required.

  • Altering SNAP-Ed’s Funding Formula—R. 2 did maintain mandatory funding for the proposed, combined program, but too abruptly changed how states provide SNAP-Ed. The proposed changes to the funding formula could leave many struggling to provide public health services. The Healthy Hunger-Free Kids Act established a stepped-down formula that considers a state’s funding history and incrementally introduces pro rata distribution based on its current SNAP population.[9] A sudden shift that considers only current SNAP participation would hurt states with a strong record of matching federal funds, as well as less-populated states. Changes to SNAP-Ed funding, when paired with recent cuts to Centers for Disease Control and Prevention (CDC) grants for diet-related disease control, would leave some states reeling with very little funding for nutrition education and obesity prevention.

Nutrition Education Recommendations for the 2018 Farm Bill

Nutrition education helps to prevent obesity and encourages individuals to eat healthy foods American farmers grow.[10] The 2018 Farm Bill should ensure not only that these programs receive adequate funding, but that they are structured to succeed. The Senate bill should:

  • Preserve SNAP-Ed and EFNEP’s Strengths—Combining SNAP-Ed and EFNEP, as the House Bill proposed, may be politically inevitable. Whatever form farm bill nutrition education takes should maintain the funding and flexibility of SNAP-Ed and the efficacy and peer-education emphasis of EFNEP.

With SNAP-Ed, state agencies receive more than $414 million a year to contract with land grant universities, local health departments, and community-based organizations.[11] These groups empower people to eat well through social marketing, direct education, and policy, systems, and environment changes consistent with current public health practices.

EFNEP, though funded at only $67 million a year, has a great return on investment; for every $1 spent, EFNEP saves $10 in future health care costs.[12] EFNEP also has the advantage of hiring peer educators.[13] The program not only provides low-income community members with jobs, but its instructors understand the challenges and strengths of the communities in which they work.

  • Maintain FNS as the SNAP-Ed Administrator—FNS’s structure ensures that people can access and afford nutrition assistance programs, driving demand for nutritious foods through nutrition education. FNS should consult with NIFA on program administration and maintain control of SNAP-Ed.
  • Gradually Adjust SNAP-Ed Funding Based on States’ SNAP Population—Currently, USDA allocates 50% of a state’s funding based on its SNAP population, and 50% based on historical match.[14] Instead of immediately altering states’ funding, USDA should adjust funding by 10% each year until 100% of funding is based on SNAP populations. This will allow states to better plan for the program going forward.

 

[1] 7 U.S.C. §§ 2011 et seq.; §§ 2036a et seq.; §§ 3175 et seq.

[2] See e.g. Ed Bolen et al., House Agriculture Committee’s Farm Bill Would Increase Food Insecurity and Hardship, Center on Budget & Pol’y Priorities (April 25, 2018), https://www.cbpp.org/research/food-assistance/house-agriculture-committees-farm-bill-would-increase-food-insecurity-and.

[3] Isobel Contento, Nutrition Education: Linking Research, Theory and Practice (3rd ed., Jones & Bartlett 2015).

[4] Julia McCarthy, Claire Uno, Pam Koch, & Isobel Contento, Empowered Eaters: A Road Map for Stronger New York State Nutrition Education Policies and Programs, 31 (Laurie M. Tisch Center for Food, Educ. & Pol’y, Program in Nutrition at Tchr. College, Columbia U. 2018), http://www.tc.columbia.edu/media/media-library-2014/centers/tisch-center/Empowered-Eaters-STATE-FINAL.pdf.

[5] 7 U.S.C. §§ 2036a et seq.

[6] 7 U.S.C. §§ 612c et seq.

[7] 7 C.F.R. §§ 1291 et seq.

[8] McCarthy, supra note 4.

[9] Pub. L. 111-296 § 241(d) codified in 7 U.S.C. § 2036a(d)(2).

[10] See e.g. M. Vine et al. Expanding the Role of Primary Care in the Prevention and Treatment of Childhood Obesity: A Review of Clinic and Community-Based Recommendations and Interventions, J. Obesity (2013);

  1. Prelip et al., Evaluation of a School-Based Multicomponent Nutrition Education Program to Improve Young Children’s Fruit and Vegetable Consumption, 44(4) J. Nutrition Educ. & Behav. 310-318 (2012).

[11] U.S. Dep’t Agric., Supplemental Nutrition Assistance Program Education (SNAP-Ed) Budget Allocation for Fiscal Year 1992 to 2017 (2017), available at https://snaped.fns.usda.gov/snap/Guidance/SNAP-EdBudgetAllocationFY1992-2017.pdf.

[12] U.S. Dep’t Agric., Expanded Food and Nutrition Education Program (EFNEP) FY 2018 Request for Applications, (Aug. 8, 2018), available at https://nifa.usda.gov/sites/default/files/resources/FY18-EFNEP-Modification-882017.pdf; Jamie Dollahite et al., An Economic Evaluation of the Expanded Food and Nutrition Education Program, 40 J. Nutrition Educ. & Behav. 134-143 (2008).

[13] 7 U.S.C. § 3175(c).

[14] 7 U.S.C. § 2036a(d)(2).

 

Julia McCarthy is a Senior Nutrition Policy Associate at CSPI, focusing on healthy retail policies. Prior to joining CSPI, she was a policy analyst at the Laurie M. Tisch Center for Food, Education, and Policy. McCarthy has worked as a legal fellow at the Natural Resources Defense Council, Food and Drug Administration, and U.S. Public Interest Research Group. She attended Georgetown University and has a law degree from New York University where she was a Root-Tilden-Kern scholar.

Chlorpyrifos and state v. national action in food policy

by Diana Winters

A reversal by the Trump administration on proposed restrictions on the use of a commonly used pesticide highlights how state governments may be instrumental in the development of progressive food policy.

The Environmental Protection Agency (EPA) began a reassessment of all organophosphate pesticides in 1996, pursuant to the Food Quality Protection Act (FQPA). The FQPA amended the Food, Drug, and Cosmetic Act (FDCA) and the Federal Fungicide, Insecticide, and Rodenticide Act (FIFRA), under which the EPA regulates pesticides, and required the agency to assess approved pesticides under a stricter standard than it had previously. In 2000, after this reassessment, the EPA signed an agreement with six manufacturers of chlorpyrifos sharply limiting the pesticide’s production for home and garden use, and curtailing its use on certain agricultural products.

After the EPA completed its reassessment process in 2006 and reaffirmed its approval for the remaining uses of chlorpyrifos, the Natural Resources Defense Council (NRDC) and Pesticide Action Network North America (PANNA), filed an administrative petition, asking the agency to ban all uses of the pesticide. In this petition, the groups argued that the EPA had inappropriately reaffirmed the pesticide’s approval despite significant evidence showing that chlorpyrifos was dangerous to humans, especially to children.

The EPA delayed issuing a response to the NRDC/PANNA petition for years. PANNA filed suit in 2010 against the agency, demanding a response, but settled the suit based on a promise by EPA that the agency would issue a final decision by 2011. When it did not, PANNA filed for a writ of mandamus in the Ninth Circuit, which the court denied after the EPA provided a timeline for response. When the EPA again missed its deadline in 2014, PANNA renewed its petition for mandamus. The Ninth Circuit granted this petition, ordering the EPA to respond by October 2015.

In October 2015, the agency proposed to revoke all approvals for chlorpyrifos based on what it saw as unacceptable risk to human health, and supported this decision in November 2016 with an updated human health risk assessment. The agency set March 2017 as a deadline for its final decision on the 2015 proposal.

In March 2017, however, the EPA rejected NRDC and PANNA’s petition on the basis that it needed more time to assess the potential health consequences of the pesticide. The agency stated:

despite several years of study, the science addressing neurodevelopmental effects remains unresolved and that further evaluation of the science during the remaining time for completion of registration review is warranted to achieve greater certainty as to whether the potential exists for adverse neurodevelopmental effects to occur from current human exposures to chlorpyrifos.

In August 2017, the New York Times reported that in the weeks before the agency rejected the petition, Scott Pruitt, appointed head of the EPA by President Trump, had assured industry executives who had been advocating for the continued EPA approval of chlorpyrifos, that it is “a new day, and a new future,” and that he would work with the industry.

Soon after the agency denied the petition, NRDC and PANNA filed for further relief from the Ninth Circuit, arguing that the agency’s denial was inadequate because it was not based on new scientific evidence. Several states including California and New York sought to join the suit in July, but shortly thereafter, the court denied this petition, explaining that by issuing a final decision the EPA had fulfilled the court’s earlier mandate, and the groups now needed to pursue administrative relief before returning to court.

In response to the EPA’s decision, California, which produces the majority of the nation’s produce, has moved to further regulate and restrict the use of chlorpyrifos, and to add the chemical to the list of human health hazards that the state maintains under Proposition 65.

While not ameliorating it completely, California’s action to regulate chlorpyrifos will reduce the impact of the Trump administration’s refusal to move forward with the previously proposed restrictions on this chemical. We see the possibility of meaningful change in the food systems sphere—here through the restriction of a pesticide harmful to producers and consumers—enacted through state, not federal action. In regards to food policy, the state, local, and private spheres will be the arenas to watch in the near future as they work to react to the Trump administration’s anti-regulatory stance, industry focus, and inattention to some of the progressive food policy positions taken by the prior federal administration.

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?

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.

 

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