What are the First Amendment obstacles to mandatory front-of-pack labeling?

Suppose the government wanted to require front-of-pack nutrition labels for packaged food and beverages, making it easier for consumers to see at a glance some key nutritional qualities.

In the United States, could the manufacturers claim that such a rule violates their First Amendment rights?

In the journal Food Policy this past summer, Jennifer Pomeranz, Dariush Mozaffarian, Renata Micha, and I study the precedents. Much depends on whether a particular labeling policy could satisfy a legal principle called the Zauderer test. This test stipulates, for example, that the mandatory labeling information must be factual and uncontroversial. 

Looking at the wide array of front-of-pack labeling schemes around the world, we find that some varieties are more likely than others to pass this test. Certain proposals for simple mandatory symbols indicating "healthy" or "unhealthy" broadly, without communicating much nutrition information, could be ruled unconstitutional.

The article is titled, "Mandating front-of-package food labels in the U.S. – What are the First Amendment obstacles?"

Pomeranz et al. (2019). Table 1 (small excerpt).

What the new studies REALLY say about red and processed meat

New studies this week in the Annals of Internal Medicine have generated much fiery news coverage.

For example, Time's headline says: "Should You Stop Eating Red Meat? A New Paper Has a Controversial Answer." As always, the nutrition reporter portrays nutrition science as fickle, endlessly reversing itself.

It's not true. The actual scientific content in the new studies confirms what we already knew.

The best available evidence suggests that reducing red and processed meat consumption will reduce risk of death from cardiovascular disease and cancer.

It always is the case that nutrition scientists and communicators must accomplish two tasks: 

1. understand the available evidence; and 
2. reflect on what burden of proof should be used for nutrition policy decision making.

The new studies made atypical decisions about Task #2. For reasons that are not clear to me -- perhaps out of a scientific sense of caution or perhaps out of a bias in favor of red and processed meat -- they ramped up the burden of proof that they apply to recommendations that advise less red and processed meat. Citing research guidelines that give highest scores for pharmaceutical trials [edited slightly 4pm], they rate most of the available evidence in any direction as weak. This is not how I would have communicated the evidence. In my view, it is understandable that randomized control trials cannot be widely used on this topic, because one would have to wait too long for a sufficient number of cancers or heart attacks attributable to a meat intake intervention in a well-powered study. So, I have long accepted cohort and observational studies as the best available evidence on this topic. The new studies do pretty much the same, but they label each piece of evidence as "weak." They are free to apply these labels, and I feel free to ignore these labels.

Turning to Task #1, the studies confirm what I already knew. For example, here are my statistical interpretation sentences for several main results from the new studies.

On average, reducing weekly unprocessed red meat intake by 3 servings is associated with:

• 7% lower risk of death, 
• 10% lower risk of death from cardiovascular disease,
• 6% lower risk of stroke,
• 10% lower risk of type 2 diabetes,
• 7% lower risk of death from cancer.

The list of results continues for processed meat.

If you want to describe these effects as "small" and you want dietary changes that reduce your risk by twice as much, then knock yourself out. You may reduce your red meat intake by perhaps approximately [note: qualifying adjective added 4pm] 6 servings.

I recognize that these results are accompanied by blistering disparagement of recommendations to eat less red and processed meat, but I don't trust these authors enough to place credence on their rhetorical choices. Their scientific results are what matters. 

Reading these scientific results, even acknowledging the limits of our knowledge, I will continue to support existing recommendations to eat less red and processed meat. No better evidence exists.

Processed meat labels saying "uncured" and "no nitrites added" are misleading

A large body of evidence reviewed by the World Health Organization found that processed meat consumption increases the risk of cancer. Seeking to alleviate consumer concern, food companies label some of their products as "uncured" or "no nitrites added." However, these products may have essentially as much nitrites or nitrates as regular products.

In an August 29 report from Consumer Reports (CR), policy analyst (and Friedman School Ph.D. student) Charlotte Vallaeys explained the issue.

“Thanks to the topsy-turvy world of government food labeling rules, ‘no nitrites’ doesn’t mean no nitrites,” says Charlotte Vallaeys, senior food and nutrition policy analyst at CR. Instead, it means that the nitrates and nitrites used to “cure”—or preserve and flavor—meat come from celery or other natural sources, not synthetic ones, such as sodium nitrate or nitrite.

The issue was picked up in August by NPR in a report by Allison Aubrey.

This issue also is the subject of a new citizen petition from the Center for Science in the Public Interest (CSPI) and Consumer Reports, which in turn led USDA to open a public comment period until Nov. 12.

Meanwhile, I remain concerned that the federal government's Dietary Guidelines for Americans (DGA) for 2020-2025 may overlook scientific evidence on processed meat and cancer risk. It is important for USDA and DHHS to review this evidence directly, as its own topic, not just tangentially when it arises as part of broader studies of dietary patterns. That scientific issue was covered in a blog post in early August, noting our recent article in Milbank Quarterly.

In related work, my colleague Dr. David Kim and several co-authors and I have a new article in the American Journal of Preventive Medicine (AJPM), published today, with a modeling analysis of the health benefits that could arise if warning labels or a tax on processed meat effectively reduced intake and thereby reduced cancer risk. The abstract concludes:

The model shows that implementing tax or warning labels on processed meats would be a cost-saving strategy with substantial health and economic benefits. The findings should encourage policy makers to consider nutrition-related policies to reduce cancer burden.

Illinois specialty farmers talk about inequities in the trade war bailout

Tufts Friedman School alum Jeff Hake is featured in yesterday's report from the Illinois State University NPR Station, WGLT.

Jeff Hake and his immediate family run Funks Grove Heritage Fruits and Grains, a nine-acre farm in rural McLean. McLean County has secured the largest payouts through the Market Facilitation Program of any county in the country, but Hake's farm won't see any of that money.

As a family farm that sells most of its products directly to consumers—things like black raspberries and Johnny cake mixes—Hake is not exactly on the front lines of the trade war, but he sees the bailouts as a symptom of a greater problem.

“It’s just throwing money at the problem and hoping that things will work out later,” Hake said.

Mystery and discovery in the economics of fishing on the high seas

Fishing on the high seas may frequently be economically unsustainable, according to an analysis last year by Enric Sala and colleagues in Science Advances.

This comparatively unregulated fishing industry beyond national exclusive economic zones presents grave environmental concerns, so the motivation for continued fishing under unprofitable conditions is somewhat of a mystery. Sala and colleagues mostly argue that the industry is propped up by government subsidies, but they also discuss two other factors. One is substandard wages and working conditions, even sometimes modern slavery. Another is the possibility that some countries cheat on their harvest reporting and are really more profitable than they appear. The study's data source already corrects for standard estimates of catch underreporting, so this last possibility might require especially brazen underreporting on a scale that has not yet been recognized.

Fig. 3 Net economic benefit of high-seas fishing (Sala et al., 2018). 
Range of estimates of fishing profits (US$ millions) before (π) and after (π*) subsidies for (A) major fishing countries and (B) gear types.

The 2018 study is part of a blossoming research literature that takes advantage of modern tracking data to estimate the "fishing effort" of thousands of individual vessels. To get a sense of this remarkable type of data, see the online mapping capability at Global Fishing Watch. It lets you track individual vessels as they criss-cross the ocean in both the national exclusive economic zones and the high seas.

I came across this study after watching a video from Greenpeace featuring one of the authors, Daniel Pauly, a professor of fisheries at the University of British Columbia. He explains that the decline of fisheries has been going on so long that even adults in fishing communities may not fully understand the long-term baseline bounty that could be possible without overfishing. The environmental sustainability of human consumption of smaller fish is less fraught, but, in the video, Pauly argues that "we are chasing the last of the big fish."

Federal government's beef checkoff program buys advertising to discourage grocers from stocking plant-based alternatives

The federal government's beef checkoff program this week is running advertisements in GroceryDive, a trade news site, targeting grocery retailers with claims that disparage new plant-based alternatives.

"Despite the placement of beef substitutes in the meat case," the ad says, "these products aren’t generating sales like the authentic beef products they share the case with." 

Yet, a savvy reader may think the ad itself indicates a high level of concern among beef checkoff program leaders.

The beef checkoff program is a public-private partnership, managed by a board appointed by the Secretary of Agriculture and funded by a mandatory assessment on beef producers, using the federal government's power of taxation. Checkoff marketing campaigns must be approved in writing by USDA's Agricultural Marketing Service (AMS). Checkoff advertisements to promote beef have legal status as "government speech," just like government public interest messages to promote public health.

Earlier this year, Republican Sen. Mike Lee (UT) and Democratic Sen. Cory Booker (NJ) re-introduced their legislation, the Opportunities for Fairness in Farming Act of 2019 (OFF Act), which would make several reforms in federal checkoff programs:

• Prevent checkoff programs from contracting with organizations that lobby. The current practice has an unseemly circularity, as the federal government enforces the collection of checkoff money, which then goes to industry organizations that lobby (mostly but not entirely with non-checkoff dollars) to influence federal regulatory and marketing policies;
• Require transparency through publication of checkoff program budgets and expenditures; and
• Establish standards that prohibit anti-competitive behavior, such as using federal checkoff money to disparage other legitimate American food businesses in the marketplace, as the GroceryDive advertisement did this week.

These reforms seem reasonable to me.

Are SSB taxes good or bad for the poor?

In an economic sense, the optimal soda tax is surprisingly high, even if one values economic redistribution and opposes "regressivity" in the tax system, according to a recent NBER working paper from Hunt Allcott, Benjamin Lockwood, and Dmitry Taubinsky.

The three economists recognize that sugar sweetened beverage (SSB) consumption may have a larger budget share for poor consumers than for rich consumers, but, somewhat offsetting this pattern, they consider the possibility that low-income consumers are more responsive to price -- that they have a larger "own-price elasticity" -- enabling them to avoid a larger share of the tax burden, compared to middle- and high-income people. In the end, the authors find that an optimal national tax might be about one or two cents per ounce, equal to or slightly higher than current municipal taxes in Berkeley, Philadelphia, and elsewhere.

This paper relates to an interesting debate over several years in the progressive media, which arises because of the possible tension between public interest goals, including public health nutrition goals on the one hand and anti-poverty goals on the other. For example, Bernie Sanders in 2016 opposed soda taxes, but Anna Lappé wrote in Mother Jones encouraging him to reconsider and support these taxes. Similarly, in 2017, Max Sawicky wrote in In These Times opposing such taxes, while Tom Philpott favored support.

In research in the American Journal of Public Health in January, my colleagues and I estimated the costs and effects of a national penny-per-ounce SSB tax separately for multiple stakeholders: including both richer and poorer groups of consumers, employers (who save money in health care costs with the tax), SSB producers (who lose out especially if they must absorb part of the tax and cannot pass the full value onto consumers), and the government (which wins twice, once from the tax revenue and once from the healthcare cost savings in public insurance programs such as Medicaid).

Clearly, it is not enough to compute effects for an "average person" when studying SSB taxes. Yet, even when we consider the interests of multiple income groups in society, the merits of such taxes may be surprisingly strong.

In These Times.

Dietary guidelines, processed meat, and risk of cancer

In a public comment submitted today, my colleagues Fang Fang Zhang, Jennifer Pomeranz, and I encourage the 2020-2025 Dietary Guidelines Advisory Committee (DGAC) to evaluate the entire scientific literature on processed meat and colon cancer risk.

The DGAC is the external committee that summarizes the scientific evidence on nutrition and health, which two federal departments, USDA and DHHS, then use in writing the actual Dietary Guidelines for Americans, an influential document in U.S. nutrition policy.

USDA and DHHS have determined that the 2020-2025 DGAC may only address topics that were explicitly given in a list of questions by the departments.

One of the questions is: "What is the relationship between dietary patterns consumed and risk of certain types of cancer?"

Our public comment today recommends that the DGAC include the entire scientific literature on processed meat and cancer risk, as part of its systematic review of evidence on dietary patterns and cancer.

Why is this even in doubt?

As our recent article in the Milbank Quarterly recounts, in the previous 2015-2020 Dietary Guidelines for Americans, the federal government muddled its message on processed meat and cancer.

On the one hand, it included lower intake of processed meat in a list of characteristics of healthy eating patterns: "Lower intakes of meats, including processed meats; processed poultry; sugar-sweetened foods, particularly beverages; and refined grains have often been identified as characteristics of healthy eating patterns."

On the other hand, it said that processed meats can be recommended as long as sodium, saturated fats, added sugars, and total calories are within limits. This latter favorable comment in the official policy document from USDA and DHHS had no basis in the earlier independent scientific report from the 2015-2020 DGAC.

Even though it is not responsible for the final DGA report, we think the 2015-2020 DGAC report may have overlooked some of the important research on processed meat and colon cancer, by interpreting the words "dietary patterns" too strictly, screening out some research on processed meat merely because this one food category is not a "dietary pattern."

Why is the cancer risk from processed meat important?

The issue is important because the best available systematic literature reviews concluded that consuming processed meat increases the risk of colon cancer. In particular, see authoritative reports from the International Agency for Research on Cancer and the World Cancer Research Fund and American Institute of Cancer Research.

Luxian Zeng, Fang Fang Zhang, other colleagues, and I recently reported in the Journal of the Academy of Nutrition and Dietetics (JAND) on trends in processed meat intake based on data from the Nutrition and Health Examination Survey (NHANES). While red meat declined, processed meat held steady in recent years. This issue is big enough to matter for national nutrition policy.

What are the policy implications of ignoring this issue?

Currently, far from encouraging reductions in processed meat intake, the federal government supports advertising and marketing programs to increase consumption. The semi-public checkoff programs have been covered previously in this blog. Just to give one current illustration, here is advertising from the federal government's pork checkoff program for bacon and ice cream. If the Dietary Guidelines for Americans were based on a full evaluation of the scientific literature about processed meat and colon cancer, it might facilitate policies to encourage reductions, or at the very least a halt to these advertising programs encouraging yet more processed meat consumption.

National Pork Board advertising endorsed by USDA.

U.S. China agricultural trade and the bailout boondoggle

Late last fall, Choices Magazine from the Agricultural and Applied Economics Association (AAEA) had a special issue on U.S. - China trade, highlighting the enormous value of China trade for U.S. farmers.

Introducing the special issue, which received an award at this week's AAEA annual meeting in Atlanta, Mary Marchant and Holly Wang wrote:

The United States and China, the world’s largest economic powers, have dueled in an escalating trade dispute since January 2018.... This trade dispute is important to U.S. agriculture, because China has been the United States’ top agricultural export market outside of North America since 2009 with an annual sale of nearly $20 billion in 2017 (USDA, 2018b).... Although the current trade dispute continues to evolve, it is valuable for us to understand the potential negative impact and to be informed of possible consequences. It is our sincere hope that U.S. and Chinese negotiators will reach an agreement, since both countries ultimately lose with a trade war, as seen from the 1930s Smoot–Hawley Tariff.

The Trump administration has sought to offset some of the harm to farmers with bailout funding to selected producers. Using data received under the Freedom of Information Act (FOIA) law, the Environmental Working Group last month reported that many payments exceeded a planned $125k limit. Some subsidy recipients received more than $900k.

For Iowa farmers, the Des Moines Register today has a fascinating report with clever searchable web tools, allowing detailed breakdowns.

How can U.S. agricultural policy remain so absurdly dysfunctional even while being exposed to this level of public transparency?

USDA announces 3 finalists for ERS and NIFA location

The U.S. Department of Agriculture (USDA) on May 3 announced three finalists for the potential new location of the Economic Research Service (ERS) and the National Institute for Food and Agriculture (NIFA).

USDA has said the move will save money but has offered little information to support this view. Employees of the agency are demoralized by what they see as an effort to exert political control over research.

Agriculture Secretary Sonny Perdue said:

Relocation will help ensure USDA is the most effective, most efficient, and most customer-focused agency in the federal government, allowing us to be closer to our stakeholders and move our resources closer to our customers. Our commitment to the public and our employees is to continue to be transparent as we proceed with our analysis.

The three finalist locations announced by USDA are:

• Indiana. U.S. agricultural output ranked 10th (2.8% of national total). Leading products are corn, soybeans, and hogs. Won by President Trump in 2016 with 57% of the vote.
• Kansas. U.S. agricultural output ranked 7th (4.2% of national total). Leading products are cattle, corn, and soybeans. Won by President Trump in 2016 with 57% of the vote.
• North Carolina. U.S. agricultural output ranked 8th (3.1% of national total). Leading products are chicken, hogs, and turkey. Won by President Trump in 2016 with 50% of the vote.

Just for comparison, the biggest agricultural state is not on the list:

• California. U.S. agricultural output ranked 1st (13.5% of total). Leading products are dairy, produce, grapes, almonds, and strawberries. Lost by President Trump in 2016 with 33% of the vote.

The USDA definition of "closer to stakeholders" may have in mind a particular vision of U.S. agriculture, heavy on meat and animal feed production. Along with farmers, other important USDA stakeholders are food manufacturers, food retailers, and food consumers in all parts of the country. Approximately 80% of the department's budget is for U.S. nutrition assistance programs. Critical issues for the department in the next several years include supporting farm incomes, protecting the labor rights of farmworkers, supporting rural and urban food economies, promoting nutrition in a time of rising insurance costs, and mitigating and adapting to climate change.

I am not persuaded that the proposed move will achieve its stated objectives of saving taxpayer funds and helping USDA better serve its most important stakeholders. I hope USDA can keep in mind all of its important public purposes.

Outbreak by Timothy Lytton

The new book Outbreak by legal scholar Timothy Lytton (University of Chicago Press; Amazon) is both well-written and insightful about how private markets and government institutions (including regulation and courts) jointly affect food safety successes and failures. It mixes lively narrative about particular outbreaks (including much detail that is new to me) with legal analysis about incentives and constraints for each stakeholder. I have added it to my syllabus.

Food Safety News writes:

Lytton discusses how inadequate budgets restrict the ability of government to develop and enforce meaningful regulations. Pressure from consumers to keep prices down constrains industry investments in safety. The limits of scientific knowledge leave experts unable to assess policies’ effectiveness and whether measures designed to reduce contamination have actually improved public health.

“Outbreak” offers practical reforms that will strengthen the food safety system’s capacity to learn from its mistakes and identify cost-effective food safety efforts capable of producing measurable public health benefits, according Lytton’s publisher.

The book has earned praise from big business officials, academic researchers, and lawyers who specialize in food safety cases.

Lytton is an associate dean and distinguished university professor at Georgia State University College of Law.

Preventing chronic disease (evidence versus Google's featured snippets)

Scientifically dubious information may sometimes appear in Google's "featured snippets."

An online search -- in Google of course -- turns up all sorts of scammy sites offering advice on how to optimize web content so that it appears in these featured snippets.

When we Google "preventing Parkinson's", we get advice to consume the co-enzyme CoQ10, but research in the journal Neurological Science found no benefit.

Similarly, when we Google "preventing colon cancer," we get a featured snippet with advice from Mayo Clinic (a reputable source):

Make lifestyle changes to reduce your risk
You can take steps to reduce your risk of colon cancer by making changes in your everyday life. Take steps to:

• Eat a variety of fruits, vegetables and whole grains. Fruits, vegetables and whole grains contain vitamins, minerals, fiber and antioxidants, which may play a role in cancer prevention. Choose a variety of fruits and vegetables so that you get an array of vitamins and nutrients.
• Drink alcohol in moderation, if at all. If you choose to drink alcohol, limit the amount of alcohol you drink to no more than one drink a day for women and two for men.
• Stop smoking. Talk to your doctor about ways to quit that may work for you.
• Exercise most days of the week. Try to get at least 30 minutes of exercise on most days. If you've been inactive, start slowly and build up gradually to 30 minutes. Also, talk to your doctor before starting any exercise program.
• Maintain a healthy weight. If you are at a healthy weight, work to maintain your weight by combining a healthy diet with daily exercise. If you need to lose weight, ask your doctor about healthy ways to achieve your goal. Aim to lose weight slowly by increasing the amount of exercise you get and reducing the number of calories you eat.

That is mostly good advice, with one big omission. Authoritative research summaries from the World Cancer Research Fund (WCRF) and American Cancer Society (ACS) recommend lowering risk of colorectal cancer by eating less processed meats (such as bacon and sausage).

These authoritative sources appear further down the list of Google results for "preventing colon cancer," overshadowed by the incomplete information in the featured snippet.

Should data on SNAP sales by retailer be available for analysis?

The U.S. Supreme Court this week scheduled a hearing on April 22 about an important case for policies to address the adequacy of food retail access, especially for low-income communities.

Knowing the amount of SNAP sales by retailer would help for (1) identifying "food deserts," (2) understanding how SNAP contributes to healthy food environments, and (3) determining whether policy innovations or changes in retail practices could further increase the beneficial impact of SNAP.

In 2011, the South Dakota Argus Leader asked USDA to share such data. Retailers objected to the sharing, and USDA declined to approve the release under Freedom of Information Act (FOIA) rules, so the case went to court. Eventually, appeals courts ruled for the Argus Leader. USDA would have released the data, but the Food Marketing Institute (FMI), the leading food retail trade association, appealed the case to the U.S. Supreme Court. See SCOTUSblog for more on this history and links to the legal documents.

The Argus Leader yesterday noted that the implications go beyond food policy: "The outcome of Food Marketing Institute v. Argus Leader Media could have broad implications for what the federal government can keep secret under the Freedom of Information Act."

An FMI statement last month said, "It is a critically important case that will clarify the protections from disclosure applicable to confidential business information that private parties submit to the government." But is this really confidential information submitted by private parties? USDA spends public money for a public purpose, and the Argus Leader just is asking USDA to share its own spending data, much as USDA already must share information about who receives farm subsidies, or what big businesses receive federal contracts. Businesses receiving government money sometimes wish the amounts would be secret, but it makes sense in a democracy that these amounts should be public.

Supporters of the FMI position say retailers will suffer competitive harm if the data are released. For example, in recorded Congressional debate (time 4:31:00) last year, Rep. Dan Newhouse (R-WA) expresses concern about "food deserts" and says the data release would "poach customers and revenues." First, retailers already have plenty of commercial intelligence about each others' business. Second, more importantly, is Rep. Newhouse's argument internally inconsistent? The only way a competitor could poach customers and revenues is by adding retail locations in the vicinity, which improves food retail access. For a retailer in a particular location, if competitors see some data and decide to stay away, then the business result is a competitive benefit not a harm.

If these data were public, we would all understand the role of SNAP in local food retail environments better. If FMI cares about the healthfulness and adequacy of the local food retail environment for low-income Americans, I would encourage the trade association to drop this appeal. This lawsuit does not serve the public interest.

The long road to the Healthy Hunger-Free Kids Act of 2010, and the long road afterward

Nutrition Today (.pdf) has published a nice history of the initial struggle to design and pass ... and the later struggle to implement ... the Healthy Hunger-Free Kids Act of 2010.

Colin Schwartz and Margo Wootan of the Center for Science in the Public Interest (CSPI) summarize considerable familiar material, but also provide insight into less widely understood details. For example, while this legislation usually is described purely as an Obama administration victory, the authors highlight much of the preparation that already took place during the W. Bush administration. The continuing policy arguments after passage also are notable. It is true with any legislation, and especially true for this law, that the road to administrative rule-making and implementation may be as important as the initial passage of the bill.

I will add this article to the syllabus for my U.S. food policy class (for a week on child nutrition programs).

Schwartz and Wootan (2019). [Click for larger image].

SSB taxes from the distinct perspectives of diverse stakeholder groups

Previous studies found sugar-sweetened beverage taxes are cost-effective from the societal perspective. Our new article in the American Journal of Public Health argues that policy-making in a democracy depends on costs and benefits for particular stakeholders.