President Obama has made tackling childhood obesity and nutrition a key priority. The FDA’s recent announcement on nutritional labelling demonstrates the administration’s willingness to act in areas where it deems self-regulation to have been ineffective, Ben Cooper writes, and this proactive approach may not be confined to food labelling.

The involvement and embarrassment of so many big-name food companies may have ensured front-page coverage of the voluntary suspension of the Smart Choices nutritional labelling scheme, but this story is more about the Food & Drug Administration (FDA) and the Obama administration than it is about any company.

President Obama has made tackling childhood obesity a far greater priority than his predecessor, and recent events at FDA represent that policy objective in action. When it comes to ensuring that food is marketed responsibly, the industry is no longer being left to its own devices.

The question now is whether this presages government intervention in another area, namely children’s food advertising.

Like Smart Choices, the Children’s Food and Beverage Advertising Initiative (CFBAI), a self-regulatory programme launched three years ago, has received criticism from campaigners and academics. The Federal Trade Commission (FTC) is showing greater interest in the issue of marketing food to children, convening a public forum on 15 December to examine the issue.

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With regard to nutritional labelling, the industry has taken a pragmatic view. The FDA’s announcement and its specific criticism of Smart Choices left the programme with little option but to “postpone active operations”. Having already seen the departure of PepsiCo, on Friday (30 Oct) all the companies announced they had agreed to drop the logo from their products.

In a tactical shift, the industry will now seek to work as closely as it can with FDA in the development of its programme, and maximise its influence over the development of common standards.

Smart Choices said it welcomed the agency’s move to develop standardised criteria on which future front-of-package nutrition or shelf labelling will be based. Describing Smart Choices as “an important step in the right direction”, Mike Hughes, chair of Smart Choices and vice president for science and public policy at the Keystone Center, said: “The Smart Choices Program stands ready to work with and support the FDA, US Department of Agriculture (USDA) and the Institute of Medicine in this effort.”

Interestingly, this could mean the US is about to enter the same debate that has been raging in the UK over whether there should be a colour-coded, ‘traffic lights’ element to nutrition labelling. FDA Commissioner Dr Margaret Hamburg has supported the idea of traffic-light labelling, though food manufacturers in the UK and leading retailer Tesco have opposed the use of colour coding.

The American Society for Nutrition (ASN), which worked on the development of the Smart Choices Program, said it commended the FDA’s move, saying it also looked forward to working with the agency, as well as with industry and other nutrition experts, in the development of a common approach.

The Grocery Manufacturers’ Association’s (GMA), which represents major food manufacturers, echoed that sentiment, saying it looked forward to working with FDA “to determine what nutrition information is most useful in providing consumers with the tools they need to help them build a healthful diet”.

While Smart Choices has been characterised as an attempt by industry to forestall regulation by FDA, the situation is rather more nuanced. When developing Smart Choices, the companies sought input from FDA and while FDA representatives attended development meetings, they did not take an active role, reflecting differing priorities for the agency under the Bush administration.

Bruce Silverglade, legal affairs director at the Center for Science in the Public Interest (CSPI), which has been lobbying for FDA action over food labelling, says it was “too bad that the Bush administration wasn’t there to play the role that government should play and help coordinate an official standard with the industry”.

Silverglade’s view is echoed by Carol Tucker Foreman, Distinguished Fellow at the Consumer Federation of America’s Food Policy Institute.

“The last administration paid no attention whatsoever to food and nutrition issues at FDA, and their inclination was to opt almost entirely for self-regulation,” Tucker Foreman says.

That the political wind has changed direction there is no doubt. In appointing Dr Margaret Hamburg, a paediatrician, as the new head of the FDA, Obama underlined how central childhood nutrition is to his administration. The fact that he has two school-age children himself is not insignificant; the First Lady has also been vocal on these issues.

Tucker Foreman believes the appointments of Margaret Hamburg and Joshua Sharfstein, as her deputy, are extremely significant. “They picked people who bring to it not just an interest in using government to push a wide range of health issues but paediatricians who have a specific interest in obesity and its relationship to children’s health. So it’s really a sea change in approach.”

This change of priorities in the White House will be giving the CFBAI food for thought. Coincidentally, the programme has just published its 2008 report. CFBAI director Elaine Kolish says she believes the initiative has produced “a lot of very positive changes since we began”.

However, a study published by the Yale University Rudd Center for Food Policy and Obesity last month concluded that it is the least healthy breakfast cereals that are most frequently and aggressively marketed to children. The Rudd Center said its research “shows that the CFBAI has not significantly reduced the amount of cereal advertising to children on television”.

“Ceding authority to the food companies to regulate themselves is a mistake,” said Rudd Center director Kelly Brownell. “The companies want to be seen as public health allies making good faith efforts to change, but their actions indicate otherwise.” Meanwhile, Silverglade told just-food that the CFBAI had “barely made a dent in the problem”.

Regarding whether FTC might take a similar view of the CFBAI as FDA has done towards Smart Choices, there are some political subtleties to consider. The FTC is an independent regulatory agency, while FDA is an executive branch agency. One key difference is that an incoming administration can parachute in a new FDA head, but the FTC chair is selected, though still by the President, from serving commissioners. Jon Leibowitz was appointed by President Obama in March but he has been a commissioner since 2004.

Kolish believes this continuity to be significant, adding that Chairman Leibowitz had been “interested in these issues for a long time”.
“I can’t speak to what their view will be after they read our report,” says Kolish. “I know that they’ve been very positive about the programme. They’ve also had recommendations for changes that we’ve been taking under advisement.”

The FTC is also limited in its powers over children’s advertising. Bruce Silverglade points out that a 1980 law prohibits the agency from issuing regulations that would limit or restrict children’s food advertising. Removing this bar is theoretically possible but President Obama would have to go to Congress to do so.

Notwithstanding the 1980 legislation, both Silverglade and Tucker Foreman expect more coordination between FTC and FDA on food regulation, and for the FTC to take a tougher stance towards self-regulation. “I think we’ll see more cooperation,” says Silverglade. “FTC has to live by the limits set by Congress back in 1980 but beyond that we’re going to see more cooperation and similar policies.”

Another appointment that could be just as significant is Leibowitz’ naming of David Vladeck as director of the Bureau of Consumer Protection which has responsibility for food advertising within FTC. For many years, Vladeck worked for the non-profit consumer advocacy organisation, Public Citizen. His appointment was welcomed by campaigners.

So the December forum and what the FTC says about the CFBAI afterwards is critical. Even though it may lack the legislative power over advertising that FDA has over labelling, FTC still has massive influence. Endorsement of the programme is vital, while any public criticism or censure would be hugely damaging.