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Beverage & Restaurant Associations Won't Go Down Without A Fight in NYC Sugary Drink Saga

In a much anticipated vote, the New York City Board of Health approved a ban on supersized sugary drinks, specifically sodas. The ban is set to take effect in March 2013, 6 months after first being passed.

Specifically, the law will ban the sale of sodas and other sweetened drinks larger than 16 ounces by restaurants, movie theaters, street vendors and stadium concession stands. The law is not as all encompassing as it may sound. Stores categorized as "grocery" stores are left out. This means that 32-ounce Big Gulp from 7-Eleven will still be sold, because for purposes of this law, 7-Eleven is regulated as a grocery store. In addition, the ban does not apply to water, diet sodas, coffee drinks, milk or milkshakes, fruit and vegetable juices or alcoholic beverages.

Health Commissioner Thomas Farley said of the benefits of the law, "[if the law] results in shrinking only one sugary drink per person every two weeks from 20 ounces to 16 ounces, New Yorkers could collectively prevent 2.3 million pounds gained per year. This would slow the obesity epidemic and prevent much needless illness."

According to the Board of Public Health, of the 39,000 comments received on the law, approximately 32,000 favored the restriction. However, a poll in the New York Times last month found that 6 in 10 city residents said the ban was a bad idea.

The beverage industry is not going down without a fight. They argue that the ban takes freedom and personal choice away from New York City shoppers and will hurt businesses. According to Eliot Hoff, a spokesperson for grassroots organization New Yorkers for Beverage Choices, "This is not the end, we are exploring legal options, and all other avenues available to us. We will continue to voice our opposition to this ban and fight for the right of New Yorkers to make their own choices."

While groups, including the National Restaurant Assocation and American Beverage Association, will undoubtedly work towards filing lawsuits, their odds of succeeding are slim (though their ability to stall the March 2013 enactment are great). For these groups, the most likely legal argument is one in which groups claim a violation of the Constitution. The argument, under a rational basis test, would go something like this:

-The plaintiff (i.e. the beverage industry, businesses, etc.) must show that the legislation is not "rationally related to a legitimate government interest."

-The city would argue they have an interest in protecting the public health of their residents. NYC would need to present evidence that the ban does in fact protect public health - that it lowers consumption of sugary drinks thereby reducing obesity among residents, resulting in improved public health.

Harvard University professor of law and public health Michelle Mello told Reuters, "There are so many examples where states impose standards on consumer products sold within their borders. It seems hard to believe that this would be singled out as unreasonable by a court."

Alternatively, groups opposing the ban could go after the ban as a violation of the Commerce Clause. However, this argument is much weaker, given the power the Constitution grants states to regulate public health and safety.

And for my two cents on the ban itself:

Telling people they can't have something only spurs a greater desire to have it. Additionally, the law doesn't target all those businesses (i.e. grocery stores) and drinks that are necessary. Take the 32oz big gulp for example - people can still go and buy that or a venti frap (because it is made up of more than half milk). Refills aren't banned so you can still go and purchase a 12oz beverage from McDonalds and refill it 2-3 times. Those things are high in calories and sugar and are not being included in the ban. It begs the question - is a law that only bans a selection of high-calorie/high-sugar beverages a beneficial thing? Will it actually reduce obesity? Maybe to some extent but if the public want those things bad enough, they can get them.

On the other hand, 1/3 of Americans are obese. The obesity epidemic among our population is rapidly increasing and health care costs are skyrocketing as a result. We have to do something to reverse these trends. Will banning a select group of sugary drinks from certain locations reverse the trend alone? No, it most certainly wont. But is it a step in the right direction? Potentially. If you can get past the government telling you what you can and cannot consume (which they do in thousands of other ways, so why is this one being acknowledged as any different?), and instead focus on the fact that this ban is a public recognition of a problem that exists and we, as a society, need to take steps to correct and reverse this deadly and costly epidemic, then I think the ban is positive movement forward. If NYC and other governments wanted to get really serious about lowering obesity and concerning themselves with issues of public health, they would need to do much much more by way of banning many high calorie, high sugar items. Soda bans alone won't do the trick. 

For NYC and Mayor Bloomberg, the ban acknowledges a problem and takes baby steps towards improving it. Don't hold your breath for a March 2013 implementation date. This ban most certainly has not seen the end of the road.


Part I: A Breakdown of the Food and Farm Bill

The Food and Farm Bill. I had heard it mentioned loosely in conversation, read about it briefly in the newspaper and zoned out when NPR discussed components of it on my morning drive. It wasn't until I went to the Just Food conference and sat through a workshop on the Food and Farm Bill, that I realized this piece of legislation mattered. It mattered to me, as a consumer, a purchaser of food, and a citizen of the United States. We hear the word "farm" and think of farmers, tractors, corn fields, the mid-west. We don't think about the farms that are local to almost all of us, regardless of where you live. We don't think about the fact that farms produce the food which inevitably ends up on our tables, in our bodies. The Food and Farm bill encompasses all of this and so much more. Which is exactly why it should matter to you.

So what is the Farm Bill? The federal Farm Bill is a piece of legislation that governs food and farm policy in the United States. This includes U.S. agriculture, nutrition programs (Food Stamps and Emergency Food Assistance), economic development programs, organic food, agricultural research and more. The bill is split into "Titles" that cover specific program areas and is up for re-authorization every five years. That means that this year, in 2012, it is up for re-authorization, though it is possible the re-authorization may not occur until 2013 due to the election.

The Farm Bill dates back to the 1930's when President FDR initiated a variety of New Deal programs to balance the market fluctuations and provide a safety net for previous low farm prices. The New Deal established grain reserves and a program where farmers cold receive a fair price for their goods, such as corn and wheat. The Farm Bill continued over the next 70 years, during which time a shift in policy occurred. In the 1970's, farmers were encouraged to plant "fencerow-to-fencerow" in order to export their goods to the Soviet Union. At the same time, and following a grain shortage in Russia, prices farmers could receive for U.S. farm products went up. Farmers throughout the United States transitioned from diversified agriculture to monocropping one or two commodity crops which could then be exported for high prices in bulk. By the early 1980's, the agricultural boom of the 70s was reversed and segued into a farm crisis. Crop prices fell, farm income fell, and farmland value fell. US farmers continued to push their crops on the foreign market, selling for far lower prices than the local cost of production. The result: US farmers continued to produce more in order to make up for their already low prices, which inevitably drove prices even lower. In 1996, we saw the "Freedom to Farm" bill change the face of the Farm bill. The '96 farm bill eliminated the requirement that farmers keep some land idle (a requirement of the New Deal farm bill). This new found land allowed farmers to plant as much as they could, but instead of great success, farmers became vulnerable to weather and market fluctuations. To compensate, farmers planted more. Grain prices collapsed, as did the price for corn and soybeans. The common theme? Overproduction; an issue that was not addressed in the 2002 or 2008 Farm bill. Which brings us to the 2008 Farm Bill.

In 2008, the mandatory spending laid out was projected to be $284 billion. Nutrition, commodity support, conservation, and crop insurance made up the bulk of the Farm Bill's total spending. Approximately 2/3 of the spending, $188 billion for the 2008 bill, went to the nutrition title. This title establishes government programs that provide assistance, including the Supplemental Nutrition Assistance Program (food stamps) and The Emergency Food Assistance Program (TEFAP). The commodity title, Title I, deals with the crops that the government subsidizes, specifically corn, wheat, soybeans, sorghum, barley, oats, rice, cotton and other major grains. While there are 13 additional titles in the 2008 Farm Bill, none receive as much money or are as controversial as Title I and Title IV.

These two titles deserve separate and unique attention. and will get just that in later posts. For now, it is critical to understand that the Food and Farm Bill touches all of us. It does not just regulate farmers and crops. It is seen in the food that gets put on our tables (and the food that does not). It exists in the assistance that millions of Americans receive each day. It is the food that shows up on our children's lunch trays in school.  As food journalist Michael Pollan said, "It isn't really a bill just for farmers. It really should be called the food bill because it is the rules for the food system we all eat by."

With the impending re-authorization of the Farm Bill, ignorance on this piece of legislation is not acceptable. Take a moment to read about where your Congress person stands on the 2012/2013 Farm Bill and write to them if you don't agree. Stay tuned for two additional posts on the Nutrition and Commodity Titles of the Farm Bill.

For additional information:

The Food and Water Watch provides a variety of surface level and in depth resources on the Farm Bill.

Search "Farm Bill" on www.house.gov or www.senate.gov


Understanding the new school meal regulations and what they mean for the nation's children

For the first time in 15 years, the Federal Government is making significant changes to the meal patterns seen in our nation's public schools. The media has been buzzing about the changes since First Lady Michelle Obama and Agriculture Secretary Tom Vilsack announced the USDA's new nutrition standards for school meals on January 25, 2012. After proposing draft guidance and receiving over 133,000 heated comments during a three month period, the regulations were released and set to go into effect on July 1, 2012.

After reading through an abundance of material and listening to webinars and news clips, I wanted to take a second and break down the new regulations and show you the numbers that have been presented (and subsequently crunched) by the Center for Science in the Public Interest.

What you're looking at above is the chart of the Final Rule Nutrition Standards in the National School Lunch and Breakfast Programs. The first column lists all of the requirements in the course of a week. The next 3 columns highlight the requirements for breakfast based on a division of three age-grade groups. The following three columns represent the requirements for lunch based on the same division of three age-grade groups. The numbers in parenthesis represent the daily requirement, in addition to the weekly requirement. The USDA finally did their research and realized that a 5-year old does not require the same nutrients and amount of nutrients as an 18-year old. This is where the creation of age-grade groups came in. They divided (with a few minute exceptions), children into three groups: Grades K-5, Grades 6-8, and Grades 9-12. Each group has their own distinct requirements for food and nutrition intake to better suit children within those grade levels and to provide age-appropriate meals.

As an aside, the guidelines continue to reference "available USDA Foods." USDA Foods are those foods that are made available to schools. They include more than 180 frozen, fresh, canned and dried products. They also include raw and processed foods that can either go directly to school districts or first to a processor. Foods received through the USDA Foods Program are provided at minimal costs and are often lower in cost than similar products that a school could purchase on their own. In 2010,an estimated 1.09 billion pounds of USDA foods at a value of $844 million were distributed to schools, according to a USDA fact sheet.

Now that you understand how to read the chart, and where the food required in the chart is coming from, let me highlight the major changes in each category, starting with fruits.


Fruits are now required in both breakfast and lunch programs (fruit at lunch was not previously required). This changes goes into effect for the 2012-2013 school year. To take one example from the above chart, schools must serve children in grades K-5, 5 cups of fruit per week, with a minimum of 1 cup daily. For the same age-grade group at lunch, the school must provide 2.5 cups of fruit per week, with a minimum of 1/2 cup of fruits daily. A school may serve fruits of varying options, to include fresh, frozen without added sugar, canned in light syrup or dried fruit. Juice may be served, but only 100% juice and it cannot be served at every meal to meet the entirety of the fruit requirements.


The major change here is that the USDA has created subgroups of vegetables, all of which must be served at some point during the week. While there is no vegetable requirement at breakfast, schools may substitute a portion of their fruits for vegetables. As with fruits, there are specific preparation methods, to include fresh, frozen and canned vegetables. In addition, if schools choose to cook leafy greens, they are only credited with serving half the the amount as served (i.e. serving 1/2 cup of cooked spinach only yields 1/4 cup of credited vegetable towards daily or weekly requirements). Schools are also given the choice of how to incorporate legumes, either as a vegetable or a meat/meat alternative. However, they cannot offer and count legumes as both a vegetable and a meat/meat alternative in one sitting.


Possibly one of the largest changes to the new school meal patterns comes in the form of grains. Schools are now required to incorporate whole grain rich foods when offering grains (and surprise, surprise, kids are actually enjoying whole grains. In fact, in Norfolk, VA, when kids were presented with brown rice as an option, they actually preferred it to any other choice of grains.) Whole grain rich foods are those that have at least 51 percent whole grains. Though this requirement exists, it is one of the slower provisions to be incorporated. In the 2012-2013 school year, during lunch, at least 1/2 of the grains offered must be whole grain rich. The same cannot be said for breakfast until 2013-2014. It is not until the 2014-2015 school year that all grains served must be whole grain rich. In addition, there are ranges for grain servings that schools cannot go under or over. However, once schools have met their daily grain minimum, they may substitute meat/meat alternates for grains.


Meat or meat alternates are only required for lunch and the changes are to be implemented in the 2012-2013 school year. 2 ounces daily are required for age-grade group 9-12 and 1 ounce daily is required for age-grade groups K-5 and 6-8. The aim is to show kids that meat (or meat alternates) are a required component of a balanced meal and have important nutrition components, to include protein, B-Vitamin, Iron, Zinc and Magnesium. Schools are given a great deal of flexibility in how they reach their weekly range. They may provide students with lean meats, seafood, poultry, beans, legumes, peas, cheese, yogurts and unsalted nuts. In addition, they are encouraged to provide meat alternates in the form of tofu and soy yogurt.


Another dramatic change comes in the form of fluid milk requirements. Starting in 2012-2013, schools may only offer the following types of milk:

  • Fat-free, flavored or unflavored

  • Low-fat, unflavored only

  • Fat-free or low-fat (unflavored only) lactose-reduced or lactose-free

Schools must offer at least two choices in milk and may not offer 2% or whole milk options for any age-grade group (including children ages 3-4 in pre-K programs). In addition, students may now decline a milk component under Offer versus Serve (a system designed to decrease food waste and give students greater flexibility in choosing what to eat for school breakfast or lunch).


In addition to the food group requirements, the new regulations also include four dietary specifications: weekly average requirements for calories, sodium, and saturated fat, as well as a daily requirement for trans fat. One of the greatest changes comes in the form of calorie ranges. Today, school systems must only meet a minimum calorie requirement. Effective during the 2012-2013 school year for lunches and the 2013-2014 school year for breakfast, schools must meet a range of minimum and maximum calorie levels based on age-grade group. There is no daily requirement but instead an average over the course of a week for both breakfast and lunch. Thus while a single meal can go over the calorie range, that will affect what is served throughout the remainder of the week. The aim of these calorie ranges is not to limit what children can eat, but instead to focus schools towards serving more fruits, vegetables and whole grains and avoiding meals high in fat and added sugar, with the end result being more nutrient dense meals. The next major change is with sodium reduction. The approach taken is that of a gradual reduction, with three target dates that each focus on a slight reduction in sodium intake. The first happens in 2014-2015, the second target in 2017-2018 and the final target not until 2022-2023. Finally, the new standards put in place regulations for trans fats. Nutrition labels or manufacturer's specifications must specify zero grams of trans fat per serving (less than 0.5 grams per serving), to exclude naturally occurring trans fat in products such as beef, lamb and varying dairy products.


All statistics can be found in the Healthy, Hunger-Free Kids Act and have been broken down the Center for Science in the Public Interest.

  • The National School Lunch and Breakfast Programs provide meals to 32 million children each day.

  • Today, one third of American children are obese or overweight.

  • Roughly 40 percent of the calories they eat are consumed during the school day. Children from low-income urban areas are sent to school early in the morning, many unfed. These children rely on the meals provided for them at school and they have a right to have access to healthy options.

  • Obesity adds $150 billion a year to national health care costs. Taxpayers carry the burden of approximately half of those costs.

  • Today, the federal government invests $13 billion per year in these programs.

  • According to the Agriculture Department, the new regulations will add upwards of $3 billion in the next five years. Breakfast improvements will cost approximately $1.3 billion and lunch improvements approximately $1.9 billion.

  • Under the new regulations, lunch will cost 0.11 cents

  • The new law provides a 6-cent per lunch increase in reimbursement for school lunches that meet the new standard, adding roughly $1.5 billion over five years if schools immediately meet standards. (Section 201 of Healthy Hunger-Free Kids Act)

  • School districts must begin closing the gap between paid meal revenues and free meal revenues. Closing this gap will raise an estimated $323 million for school programs over the next five years. (Section 205 of Healthy Hunger-Free Kids Act)

  • Prices charged for foods sold in vending machines, school stores and a la carte lines do not cover the cost to produce and sell them. Under the new law, schools must begin to close this gap. Doing so will bring in additional $7.2 billion in revenue over the next five years. (Section 206 of Healthy Hunger-Free Kids Act)

So by the numbers, the cost of improvement to school meals is $3.2 billion. Yet the increase in revenue from the Healthy, Hunger-Free Kids Act is $9 billion. It begs the question, why in the world would anyone argue against the new regulations? No, they are not perfect. Nothing is. But they will reach more children (an estimated 900,000 more children will benefit from the lunch and breakfast programs due to the increased revenue), bring in more revenue, and contribute to an overall healthier America. The controversy stems from the Food Industry. A giant, over powering industry that we all play into. Their argument? That it would raise the cost of meals and call for food that too many children will not eat. The reality? Mega-giants like Coca-Cola, Del Monte Foods, and so many others, do not make foods that comply with these guidelines. They will take a giant hit when millions of schools stop serving their foods on a daily basis. This time though, the kids won. The new USDA regulations are about helping children eat a well-balanced meal, with more fruits, vegetables and whole-grains. While you may not agree with everything the regulations do, or the amount of time it will take to fully enact them, or even the effect it will have on you as a taxpayer, it is a bit hard to argue against a regulation that simply aims to make our children healthier and to fight against an epidemic that is rampant in today's society.


School Nutrition Association & Foundation

USDA Food and Nutrition Services: School Meals

The True Cost of the New School Meal Regulations

School Nutrition Foundation: The New School Meal Regulations: What You Need To Know Webinar


Red Bull may give you wings, Amp may get you pumped, but what is it you're really drinking?

NPR featured a brief segment on energy drinks this week, discussing the dichotomy of labeling such drinks as either foods or dietary supplements. In 1997, Red Bull came on the market with a bang. Since then, there has been a rapid increase in new brands of energy drinks, to include Amp, a new energy juice. Some drinks are marketed as food, while others maintain the label of dietary supplements. The result of this labeling split? The Food and Drug Administration regulates them differently. Food is regulated under the Federal Food, Drug and Cosmetic Act, while dietary supplements are regulated under the Dietary Supplement Health and Education Act of 1994 (DSHEA). Products labeled and regulated as "food," must contain a nutrition facts label which lists all additives. These additives must be formally approved by the FDA. On the other hand, under the DSHEA, dietary supplements do not require the same degree of regulation. Instead of the FDA being responsible for ensuring that ingredients are safe, the manufacturer of the product must ensure that the supplement or ingredient is safe. The FDA steps in to take action against those unsafe products categorized as dietary supplements, only after they have hit the market. Moreover, manufacturers of dietary supplements are not required to register their products with the FDA or get FDA approval prior to producing or selling their products.


What's the big deal you ask? The big deal is this. Energy drinks marketed as dietary supplements are not so different from those labeled as food; at least not different enough to deserve separate and distinct labels. Take 5-Hour Energy. This is labeled as a dietary supplement, not a food. Monster's Loca Moca? Also a dietary supplement. Starbucks' mocha-flavored drink? Food. When you put the two next to one another, the differences are not evident. Add insult to injury, the label of "dietary supplement" or "food" is not overly obvious, nor is the amount of caffeine contained within.


What we are faced with is an industry that is not uniformly regulated. To avoid safety reviews, energy drink manufacturers have the ability to label their products as dietary supplements, place them on the market with unapproved ingredients and only if they get caught and are categorized as "unsafe," do they have to worry about the FDA stepping in. The lines are all too blurred and the consequences are potentially deadly. These drinks, when left unregulated, result in overuse, abuse and hazardous consumption, especially when mixed with little or no sleep and overuse of alcohol.


If the FDA is not going to come down hard on the manufacturers of energy drinks, forcing them to label their products only as "food," then the least they can do is present a greater screening mechanism for those energy drinks being labeled as "dietary supplements." Cries for clarification and greater regulation were heard when the FDA presented the dietary supplement industry with the new dietary ingredient (NDI) draft guidance. Any dietary ingredient that was not marketed in the United States in a dietary supplement prior to October 1994 (the date DSHEA was enacted) qualifies as an NDI. As a result, there is no authoritative list of dietary ingredients. The draft guidance may not be the answer for the energy drinks industry. However, in the absence of a mandate for all energy drinks to be labeled as food, the FDA is at least making an effort towards greater consumer protection for those drinks labeled dietary supplements.


In a world where kids and adults alike are consuming energy drinks that send a confusing, mixed message due to unrefined and varying labels, shouldn't there be regulations in place? A consumer has the right to know whether the product they are purchasing is a "food" or a "dietary supplement." They have the right to know whether the ingredients have been approved by the FDA. More importantly, they have a right to know whether the ingredient had to meet the inadequate standard for dietary supplements of, "reasonably expected to be safe," or the far more stringent standards applied to food, food additives, or GRAS ingredients of "reasonable certainty of no harm" or "generally recognized as safe." Manufacturers should not be able to pick and choose how to label their energy drinks in an effort to circumvent the safety standards required for conventional foods. So long as the determination of how to label these products lies with the manufacturer, additional safety measures are needed to protect consumers.



Collaborative Food Systems & Raw Milk Sales: The Struggle Between Choice and Safety

We live in a supermarket world. For today’s metropolitan consumer, there is simply no shortage of choices. Processed foods, name brands, generic brands and a never-ending selection of goods; you name it, odds are it is on the shelf at one of ten grocery stores in a 5 mile radius. Yet for some, supermarkets are a non-existent part of their lives.Either they are not abundant or these individuals choose to live off the locally-based food system, a collaborative network of community food systems that are common-place in rural communities. These networks integrate sustainable food production, processing, distribution and consumption to better enhance the health of their community. Farmers and consumers alike create a locally based, self-reliant economy where reconnection is the central theme. Reconnecting with one another, with the community, and with food that is produced locally.

Legislation that governs food production, distribution and consumption often neglects the concept of locally-based food systems. The piece of legislation that is friendly towards farmers and consumers within these collaborative systems is, unfortunately, the rare exception.

The dairy industry is heavily regulated by both state and federal governments. This poses a significant problem for those who wish to sell their milk from farm to table. There are consumers throughout the country who wish to take part in locally-based food systems and purchase raw milk directly from farmers. Regrettably, they are met with great opposition from the federal government’s health agencies and many state governments.

The controversy surrounding the legalization of the sale of raw milk and subsequent products (i.e. raw milk cheese) has dramatically increased over the past two years. Vermont’s Act 62, or “The Raw Milk Bill,” is an example of raw-milk legislation that has seen great success. Heavily regulated, Act 62 allows farmers to sell specified quantities of raw milk directly to consumers, so long as set standards are met. Its focus is on intrastate sales of small quantities of raw milk, sold directly by the farmer, to the consumer. Little question is left regarding where the milk comes from, thereby creating a system of accountability that is far more difficult to come by in industrial food operations. When Vermont’s legislation passed Act 62, they announced to the country that they recognized the benefit and unique purpose that locally-based food systems serve.

Rural Vermont, a non-profit agency in Vermont whose aim is to support and cultivate a vital and healthy rural economy and community, recently released a report on the positive impact of Act 62. According to the report, 150 farms across the state of Vermont sell raw milk directly to consumers. In 2011 alone, the sale of raw milk amounted to over one million dollars in revenue for local Vermont farmers. Individual farms generated, on average, $2,440 in sale of raw goat milk and $6,378 in sales of raw cow milk. As a result of opening up their farms to be participants in a locally-based economy, farmers saw an increase of 10-50%  in the sale of other agricultural products. Despite the benefits, the restrictions that accompany Act 62, including mandatory testing, are costly enough that many farms do not participate in the raw-milk movement

The fear that permeates the White House (and many state agencies) is the belief that raw milk for human consumption has potentially dangerous health risks and should not be allowed for sale across interstate lines. Many farmers are not asking for laws to be put in place that allow anything other than intrastate, farm-to-table sales. The benefits to farmers, and consumers who choose to participate in collaborative food systems, are obvious. Additional revenue is generated for farmers and consumers are given the ability to purchase food directly from the source. Raw milk is just one of many controversies that has arisen when collaborative food systems are discussed. As laws continue to be introduced, it is critical that the government (both federal and local) strives to strike a balance between allowing farmers and consumers to sell and purchase local food, while also protecting individuals from health and safety risks.

For more information on the pending Raw Milk legislation and the surrounding controversy, take a look at the following sites:

Raw Milk.org
FDA: The Dangers of Raw Milk
Real Raw Milk Facts
State Raw Milk Legislation