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Unfinished business: Obama’s nutrition agenda marches forward

By Dr Dora Hughes, Sidley Austin LLP , 24-Mar-2014
Last updated the 24-Mar-2014 at 14:42 GMT

"Industry should take advantage of a genuine desire and willingness of this Administration to negotiate creative, balanced and meaningful solutions to the challenging but achievable goal of developing products that are both healthy and appealing to consumers," says Dr Dora Hughes
"Industry should take advantage of a genuine desire and willingness of this Administration to negotiate creative, balanced and meaningful solutions to the challenging but achievable goal of developing products that are both healthy and appealing to consumers," says Dr Dora Hughes

The recent Let’s Move! nutrition related announcements by the White House mark ongoing efforts by this Administration to make good on a number of nutrition commitments from the first term.  Following on the heels of the effective ban on transfats by the Food and Drug Administration (FDA) and establishment of nutrition standards for all foods sold in schools by the U.S. Department of Agriculture (USDA), the Obama Administration has released two new proposed rules that will continue to advance its healthy foods agenda. 

First, the USDA released a proposed rule to expand local school wellness policies, which, among many provisions, limit marketing in schools to foods and beverages that meet the recently-released Smart Snacks in School nutritional standards. 

Second, the FDA released a draft regulation to update the Nutrition Facts Label, which can be found on nearly 700,000 food packages.  Significant changes include a prominent display of calories for each serving size and for the entire package if it is consumed as one serving; updated serving sizes to reflect current patterns in consumption; and a new listing of “added sugars.”  In addition to calcium and iron, potassium and vitamin D must be declared whereas listings of vitamins A and C are voluntary.  

The issuance of these rules coincided with a publication by the Journal of the American Medical Association of a new study by the Centers for Disease Control and Prevention (CDC) that found no meaningful change in the overall prevalence of obesity in 2011-2012.  The study had some good news: the rate of obesity among two- to five-year-old children has decreased significantly.  However, more than one-third of adults and 17 percent of youth in the U.S. are obese.

Tackling food marketing to children

Dr Dora Hughes

The new proposals attempt to address this public health challenge, reflecting efforts by the Administration, and the First Lady’s office in particular, to enable healthy lifestyles through better nutrition and exercise.  The marketing provisions underscore the Administration’s commitment to tackle food marketing to children, even in the aftermath of the Interagency Working Group’s unsuccessful effort to recommend voluntary new standards for marketing to children in the first term. The USDA’s food marketing proposal represents a simple but powerful message that will resonate easily with parents and the general public—unhealthy foods that cannot be sold in schools should not be advertised in schools either.  

Similarly, the proposal to provide improved dietary information to consumers through an updated Nutrition Facts Label has been well received by the public health community.  However, the Administration’s expectation that such transparency will incentivize industry to provide healthier choices has certainly sparked debate.  The Administration is eager to engage—political leadership at the highest levels of the Administration supports the proposed rule.  More importantly, the First Lady’s direct involvement signals the Administration’s willingness to expend political capital towards finalizing both rules. 

These recent announcements have led to speculation about additional Administration nutrition initiatives in the pipeline. For example, in response to the food industry’s newly announced consumer education campaign for its Facts Up Front initiative, a reasonable question is whether the FDA will engage more aggressively in front-of-package (FOP) labeling efforts.  In the Administration’s first term, the FDA seemed skeptical of the effectiveness of this industry-driven initiative, which was inconsistent with recommendations from the Institute of Medicine.   Instead, FDA decided to monitor and study the industry’s voluntary initiative, and this decision is unlikely to change.  Regardless, to receive meaningful FDA support, any FOP label will need to align with the updated Nutrition Facts Label as a first step.

Excessive sodium and the elephant in the room

Excess sodium intake remains an important issue for the Administration. The CDC, separately and through the Million Hearts Campaign, has supported educational initiatives about the harmful effects of sodium, particularly for those at high risk or already diagnosed with chronic disease, over the age of 50, and African Americans.  Moreover, it is no secret that the FDA has begun work on sodium targets for voluntary adoption, informed in part by the National Salt Reduction Initiative.   That said, a few companies have made compelling arguments regarding the reformulation challenges of lowering sodium in some foods, and prominent scientists continue to debate the health harms.  Although potential next steps are unclear, the issue has arisen in the context of developing recommendations for the 2015 Dietary Guidelines for America.

The proverbial elephant in the room is the menu labeling rule, which is statutorily required and long overdue.   The final rule is likely to be the next major nutrition regulatory release.  If and how FDA will address some of the more controversial provisions, especially the scope of covered entities and alcohol, is anyone’s guess given the delay in issuance of the final rule.  Notably, a number of major chains are moving forward already, which may reflect a prevailing sense of pragmatism on this issue. 

The newest set of rules put the ball squarely in the industry’s court, with a mobilized and vocal public health community on the sidelines urging immediate action.  A cautious and conservative industry response can be expected, which is not completely unfounded, given the difficulties of innovating in the face of potential low market demand and investor expectations.  Still, industry should take advantage of a genuine desire and willingness of this Administration to negotiate creative, balanced and meaningful solutions to the challenging but achievable goal of developing products that are both healthy and appealing to consumers.  In return, the Administration must consider how companies willing to make and market healthier products can be rewarded, which is essential for meaningful and sustainable change. These new proposed rules have opened the door to this discussion.

Dr. Dora Hughes is the Senior Policy Advisor in the Government Strategies practice of the Washington, D.C. office of Sidley Austin LLP. The views expressed in this article are exclusively those of the author and do not necessarily reflect those of Sidley Austin LLP and its partners. 

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