Federal Trade Commission
Office of the Secretary
Room H-113 (Annex W)
600 Pennsylvania Avenue, N.W.
Washington, DC 20580
July 14, 2011
RE: Interagency Working Group on Food Marketed to Children: Proposed Nutrition Principles: FTC Project No. P094513
Re: Interagency Working Group on Food Marketed to Children: General Comments and Proposed Marketing Definitions: FTC Project No. P094513
To Whom It May Concern:
On behalf of the partners in the grains industry: American Bakers Association, American Institute of Baking, Grain Foods Foundation, Grains for Health Foundation, Independent Bakers Association, National Pasta Association, North American Millers’ Association, USA Rice Federation, and Wheat Foods Council, we thank you for the opportunity to submit comments regarding the Interagency Working Group’s (IWG) preliminary proposed nutrition principles to guide industry self-regulatory efforts regarding food marketed to children.
We commend the IWG for its commitment to encourage children to choose foods that contribute to their overall healthy diet. As providers of grain products, both whole and enriched, to American consumers including children, we have a similar commitment to providing our customers with a wide variety of healthy grain foods. We are also committed to nutrition education and, individually and collectively, continue to implement programs to assist children and adults in making healthy eating choices.
However, while we appreciate the intent of these proposed principles, we believe they will not be effective in achieving the goal of improving children’s diets. We urge the IWG to withdraw the proposal for the following reasons.
The proposed principles are not consistent with the 2010 Dietary Guidelines for Americans (DG) or other federal nutrition programs such as the School Meal requirements; Women, Infants and Children Program (WIC); and Supplemental Nutrition Assistance Program (SNAP).
Our organizations have long advocated a consistent, science-based approach to setting government nutrition guidelines. Fortunately, there is an established approach that accomplishes this important task: the Dietary Guidelines for Americans. The role of the Dietary Guidelines as the foundation for all federal nutrition policy is specifically stated in the US Code at Title 7, Chapter 84, Subchapter III, Section 5341:
At least every five years the Secretaries shall publish a report entitled “Dietary Guidelines for Americans”. Each such report shall contain nutritional and dietary information and guidelines for the general public, and shall be promoted by each Federal agency in carrying out any Federal food, nutrition, or health program.
The Guidelines provide solid, science-based nutrition advice for all Americans, including children. Government initiatives involving nutrition should be based on these Guidelines to ensure policy and public health messaging consistency. The nutrition principles outlined in the IWG proposal differ significantly from the very recent Dietary Guidelines, establishing an entirely new, non-science-based regime. The proposal would:
We are concerned that the proposal may reflect a desire to decrease consumption of enriched grains which would be in direct contradiction with the 2010 Dietary Guidelines’ recommendation that Americans eat six servings of grain foods daily, at least half of those whole grains and the rest enriched grains. A decrease in consumption of healthy enriched grain foods ignores the nutritional merits of these products and could lead to serious health consequences for all, and most particularly for the youngest among us – our infants.
Since the 1940s, enriched grains have made significant contributions to the health of all Americans including eradication of the crippling diseases Pellagra and Beriberi. Furthermore, enriched grains are the primary source of folic acid in Americans’ diets.
In March 1996, the FDA mandated that enriched cereal-grain products be fortified with 140 μg of folic acid per 100g of flour. Since this fortification, there has been a 25-35 percent decrease in neural tube birth defects in the US – an amazing success story. Folic acid has also been linked to decreased risk of coronary heart disease, hypertension, Alzheimer’s and some cancers. Additionally, folic acid has lowered stroke mortality in the US and Canada where fortification is mandated. Fortification of whole grain products with folic acid is prohibited by law, with the exception of whole grain cereals.
We realize that most consumers, including children, fall far short of the recommendation to make half their grain servings whole. Nonetheless, given the importance of enriched grains in the diet, and in particular in the diets of women of child bearing age, it is critical to maintain consistency with the Dietary Guidelines’ recommendation to include servings of both enriched and whole grains in meals.
The proposal also fails to follow the Guidelines’ recommendations regarding four nutrients that are to be encouraged in the diets of all Americans: potassium, vitamin D, calcium and fiber. The IWG mentions food group contributions in Nutrition Principle A, but fails to make specific recommendations following the Dietary Guidelines for these beneficial nutrients. All four of these nutrients can be found in bread and other grain products, which, as discussed above, are actually prohibited from being marketed to children by the proposal.
In fact, according to an analysis by General Mills using NPD Group data of the top 100 most commonly consumed foods under the IWG standards, 88 of those foods would be banned (see attachment).
The proposed rules are overly complicated and unworkable.
The proposal is based on a pair of nutrition principles by which companies and advertisers are to determine what products may be advertised to children. The IWG has included in its proposal some 17 questions dealing with various aspects of these nutrition principles. In question 13, the IWG itself acknowledges that it has had to create an “exemption” intended to “resolve any inherent inconsistencies” between Nutrition Principles A and B. The IWG further states that it “recognizes that the calculations involved” would “make it difficult for any third party to verify whether a product meets Principle B.” The IWG then asks for input on “reconciling” the provisions of the two nutrition principles. We are troubled that the IWG would publish for comment a proposal that by its own admission is unworkable and contains inconsistencies.
We would also note that, regarding Nutrition Principle A and its two options, we have serious issues with both approaches. Option 1, which requires individual foods to contain at least 50% by weight of one or a combination of more than one from a list of food categories, fails to take into account foods with high moisture content, such as bread, and puts them at a disadvantage compared to drier foods like crackers or breakfast cereals. Some whole grain foods would not qualify at all, such as whole grain raisin bread. Healthy, convenience foods like ready-to-eat brown rice may not qualify as well because of high moisture content in the “as consumed” form. In the case of cookies or muffins, with grain often 20-25% of total weight, manufacturers would have no incentive to produce a “better” version since these products would never qualify.
Option 2 is based on proposed amounts for each food category “representing one-quarter of the daily amount for that food category as drawn from current dietary recommendations for a 2,000 calorie diet per Reference Amount Customarily Consumed (RACC) and per labeled serving.” According to the proposal, for whole grains, the required amount is 0.75 ounce equivalent of 100% whole grain. This requirement takes an imprecise measurement of an amount of finished grain food and tries to use it to measure the whole grain content of that food. The result is a very high level that is not compatible with the DG, which directs consumers to look for foods where “a considerable proportion of the grain ingredients is whole grains.” The DG goes on to cite as an example, “…foods with at least 8 grams of whole grains per ounce-equivalent.”
We would further note that the proposal fails to take into account that there are currently six different definitions in use among various federal agencies for what constitutes “whole grain.” Which definition is the appropriate one for manufacturers to follow in judging whether a whole grain food may be marketed to children? Food and nutrition policy would benefit from a harmonized definition of whole grain.
The proposed sodium limits are overly ambitious and unrealistic.
We support a realistic approach to reducing sodium in the diet through an incremental and gradual reduction of sodium in foods. This gives consumers, including children, time to adjust to taste changes while providing manufacturers time to develop products that deliver necessary functionality as well as palatability. For children, the issue of taste is essential and is a key factor in the successful introduction of such healthy foods as whole grains, fruits and vegetables.
In the IWG proposal, final sodium targets are to be reached by 2021, a timeline that totally ignores the recommendations for sodium intake in the most recent Dietary Guidelines, as well as the release of new Dietary Guidelines in 2015 and 2020. We believe the proposal’s failure to address the current recommendations and these future publication dates, especially given that the Dietary Guidelines are identified by statute as the basis for all government nutrition policy, is a serious shortfall. The proposal’s sodium timeline also ignores the reality of the business world where manufacturers require sufficient time to develop and test new products before bringing them to market.
In addition, the proposal sets out interim target sodium limits per serving for individual foods and for main dishes and meals, with the final target sodium value per RACC for individual foods and per serving for main dishes and meals. The Dietary Guidelines provide sodium targets per day, a much more realistic and sensible approach. Attempting to get food manufacturers to lower sodium levels per dish is both unrealistic and unworkable. The diets of both children and adults are not static but vary from meal-to-meal and from day-to-day. Thus, a higher sodium dish at one eating occasion may be compensated for by consumption of lower sodium foods at subsequent meals or over the course of a week’s time. The approach in the proposal appears to be dietary micro-management and is totally out of sync with the approach taken by other federal agencies.
The proposal would require substantial reformulation of foods, increasing manufacturers’ costs and potentially costing consumers more money in the checkout line.
Sensory factors such as taste and texture are critical components of any successful food product. This is especially true when it comes to children. While we strongly support encouraging children to eat more healthfully, we also recognize that if the food doesn’t taste good and children won’t eat it, we are not improving children’s nutritional status.
The nutrition requirements described in the proposal would likely require reformulations of a number of products by manufacturers, resulting in increased costs that could lead to significant job losses at a time when our country continues to face severe economic challenges. Such reformulations, which would entail additional research, consumer testing, marketing, packaging and labeling costs, could also result in higher finished product costs. Many consumers already cite high prices as a reason for not purchasing foods with healthier profiles. It does not make sense for our government to further contribute to this situation through imposition of a new set of nutrition principles such as those proposed here.
Instead, we encourage you to look at the extensive work currently being undertaken by the baking industry and others in the food arena to encourage demand for healthy foods among children and adults alike. A number of our organizations have invested heavily in developing new, healthy grain foods as clearly evidenced by the expanding number and variety of innovative, nutritional, affordable and tasty enriched and whole grain products available on supermarket shelves.
The baking industry, joined by millers and wheat growers, also worked with Congress to establish funding in the 2008 Farm Bill for a Grain Purchase Program that expanded the availability of whole grain foods offered in 2009 to schools as part of the school lunch and breakfast programs.
The entire grain chain is reaching out to consumers in a variety of ways to educate them about nutritious grain foods and the role they play in a balanced, healthy diet.
The principles will not be effective in changing consumer behavior.
We believe it is critical that our government focus on strategies that work. There is no evidence linking advertising of particular foods to obesity. A newly-released study from the Montreal Economic Institute, Montreal, Canada (attached), states that “an extensive review of the relevant scientific literature shows that the total consumption of ‘undesirable’ products cannot be reduced by limiting or banning their advertisement since consumers do not simply allow their choices to be dictated by ads.”
There is no need for the proposed principles as industry has recognized the issue, has already taken initiatives to address it, and will continue to seek measures that are clinically effective and scientifically supported, in cooperation with directions set by USDA and other federal guidelines.
The proposed principles are not necessary because the food industry is already moving forward on its own initiative to self-regulate. In 2006, the Council of Better Business Bureaus (CBBB) and 10 leading food and beverage companies launched the Children’s Food and Beverage Advertising Initiative. The program provides companies that advertise foods and beverages to children with a transparent and accountable advertising self-regulation mechanism aimed at shifting the mix of advertising messaging and products directed to children under 12 to encourage healthier dietary choices and lifestyles. Today, 17 companies participate in the program representing over 90 percent of all child-directed advertising.
The principles raise serious antitrust implications.
Implementation of the proposed principles potentially could render industry members vulnerable to antitrust risk. Given the nature of the proposal and its effects on industry, food companies might not implement the principles without seriously considering whether their competitors will also do so. Further, the ambiguities regarding the definitions of marketing and other aspects of the proposed principles may prompt members of the food industry to discuss their meaning and practical application collectively, through trade associations or other industry discussions. And different companies may reformulate similar types of products in order to be able to advertise them under the principles, and may need to charge higher prices to cover the costs of reformulation. Though these are logical and likely legitimate activities that would be the natural result of the industry pressures imposed by the proposed principles, an antitrust plaintiff could possibly allege that such activities are illegal collusion or other agreements in restraint of trade in violation of Section 1 of the Sherman Act. By making the described activities vulnerable to challenge, the proposed principles could put food companies in a difficult position from an antitrust perspective, and could potentially undermine companies’ efforts to shift their product portfolios to more healthful options.
The principles restrict speech protected by the First Amendment.
While we support programs to encourage healthy dietary choices by children as well as adults, we believe that the proposed principles not only would not produce effective dietary change, but they also would impermissibly restrict commercial speech that is protected by the First Amendment. In Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 566 (1980), the Supreme Court articulated a four-part test for determining whether a government restriction on commercial speech is permissible under the First Amendment. The Court inquires whether: 1) the commercial speech concerns a lawful activity and is not misleading; 2) the government interest asserted to justify the regulation is substantial; 3) the regulation directly advances that government interest; and 4) the regulation is no more extensive than necessary to serve that interest. As currently proposed, the principles clearly fail the Central Hudson test. Specifically, the principles fail both the third and fourth prongs of the test, and are therefore unconstitutional.
Although the principles were designed to support the governmental interest of prevention of childhood obesity, the principles do not directly advance this interest. As discussed above, there is no evidence linking advertising of particular foods to obesity. Moreover, even if evidence did link advertising to obesity, regulating marketing to children would not be sufficient to directly advance the government interest. As First Lady Michelle Obama’s Let’s Move initiative recognizes, combating childhood obesity requires a multifaceted approach on many levels, including broader access to healthy food and exercise. Thus, in addition to the First Amendment problems presented by the proposed marketing restrictions, the principles undermine broader approaches to the problem of childhood obesity by implying that marketing restrictions will solve the problem.
Even assuming that the proposed principles could materially advance the government’s interest in reducing childhood obesity, they are far more extensive than necessary to serve that interest. As described in a May 11, 2010, Press Release from the White House, the White House Task Force on Childhood Obesity action plan presents “a series of 70 specific recommendations, many of which can be implemented right away,” that are designed to solve the problem of childhood obesity. These recommendations—which include providing good prenatal care for parents and providing healthy foods in schools—describe a wide variety of potential means to battle the problem of childhood obesity other than the restriction of advertising. The government has not shown that it has made sufficient efforts to implement any of these recently recommended alternatives before proposing the marketing restrictions in the principles. We encourage progress on many of the other fronts articulated in the Task Force report.
Furthermore, the principles unduly impact the First Amendment right of commercial advertisers to communicate with adults. As proposed, the principles restrict advertising when the percentage of children in the audience is estimated at no more than 20 or 30%, meaning that manufacturers would be prevented from communicating truthful information concerning lawful products to audiences that are made up of 70 or 80% adults. Also, the proposed principles would prohibit numerous communications even when they are seen exclusively by adults. For example, under the proposal’s approach to “programming blocks” and “dayparts,” an advertisement could be shown in a program that has a solely adult audience yet be considered as targeted to kids if the prior or subsequent programming is directed to children or teens. Thus, even if the proposed principles survive scrutiny under other aspects of commercial speech protection, they fail the fourth prong of the Central Hudson test.
The unconstitutionality of the proposed principles is also made clear by the Supreme Court’s recent decision in Brown v. Entertainment Merchants Association, 564 U. S. ____ (2011). Expressing strong support for First Amendment free speech rights even when children and adolescents are the audience, the Court found that the state had impermissibly singled out video game purveyors for disparate treatment without sufficient evidentiary basis showing that the content of the banned videos actually harmed children. Against this recent articulation of First Amendment protections, it is difficult to conclude that the proposed principles could withstand constitutional scrutiny.
As discussed in greater detail in the attached White Paper by Martin H. Redish entitled “Childhood Obesity, Advertising and the First Amendment,” the proposed principles will have an unconstitutional “chilling effect” on free speech despite their superficially “voluntary” nature. The principles would impose costly and impossible choices on those subject to the principles. Companies will be forced to choose between, on the one hand, abandoning marketing efforts important to their commercial success and, on the other hand, facing a parade of completely untenable consequences, such as: (i) risking enforcement actions; (ii) receiving criticism from the agencies that hold great power over nearly every aspect of food companies’ businesses; (iii) opening themselves up to class action lawsuits; and (iv) causing damage to the reputations of food companies who choose to continue to market products that do not comport with the principles. This sort of choice is inherently coercive and belies the purported voluntary status of the principles.
In conclusion, the proposed voluntary guidelines will further confuse the public by imposing a new set of nutrition standards that are inconsistent with other government mandates and most importantly, fail to follow federal statute mandating the Dietary Guidelines for Americans as the blueprint for all federal nutrition policy.
They will not achieve the intended goal of encouraging children to eat more healthfully as they are not science-based and instead, will conflict with and stifle existing, successful industry initiatives to self-regulate in the marketing arena. Furthermore, while the stated goal is to improve the diets of children, the principles do just the opposite by disallowing the marketing of such healthy foods as fiber-rich whole wheat breads, whole grain cereals, enriched bread, pasta and rice that offer iron and four B vitamins including folic acid.
We are also concerned about the additional costs on food manufacturers should the proposed principles be adopted. Imposing significant product reformulations based on unrealistic and unworkable timelines would be counterproductive at a time when our country is still trying to work its way out of a crippling recession and many Americans remain out of work.
We urge the IWG to withdraw the current proposal and suggest that a much more productive and commonsense approach is called for based on:
Again, we appreciate the opportunity to provide our views. If you have questions, feel free to contact one of the organizations below.
American Bakers Association, Robb MacKie, President/CEO
American Institute of Baking, James Munyon, President
Grain Foods Foundation, Judi Adams, MS, RD, President/CEO
Grains for Health Foundation, Len Marquart, President
Independent Bakers Association, Nick Pyle, President
National Pasta Association, Carol Freysinger, Executive Director
North American Millers’ Association, Mary Waters, President
USA Rice Federation, Elizabeth C. Ward, President/CEO
Wheat Foods Council, Judi Adams, President
American Bakers Association (ABA) is the Washington D.C.- based voice of the wholesale baking industry. Since 1897, ABA has represented the interests of bakers before the U.S. Congress, federal agencies, and international regulatory authorities. ABA advocates on behalf of more than 700 baking facilities and baking company suppliers. ABA members produce bread, rolls, crackers, bagels, sweet goods, tortillas and many other wholesome, nutritious, baked products for America’s families. The baking industry generates more than $70 billion in economic activity annually and employs close to half a million highly skilled people. [email protected]
American Institute of Baking International (AIB) is a corporation founded by the North American wholesale and retail baking industries in 1919 as a technology transfer center for bakers and food processors. The original mission of the organization was to “put science to work for the baker,” which is still central to all of the programs, products, and services provided by AIB to baking and general food production industries worldwide.
Grain Foods Foundation (GFF), a joint venture of members of the milling, baking and allied industries formed in 2004, is dedicated to advancing the public’s understanding of the beneficial role grain-based foods play in the human diet. Directed by a board of trustees, funding for the Foundation is provided through voluntary donations from private grain-based food companies and is supplemented by industry associations. [email protected]
Grains for Health Foundation (GFH) was founded in 2009 to increase the availability of affordable grain-based foods with health benefits to improve public health. Grains for Health forges partnerships with food and health leaders to develop evidence-based strategies that facilitate the development, delivery, and consumption of grain-based foods that promote public health, lower the incidence of diet related chronic disease, and curb health care costs. [email protected]
Independent Bakers Association (IBA) The Independent Bakers Association is a Washington, D.C. based national trade association of over 400 mostly family owned wholesale bakeries and allied industry trades. The Association was founded in 1968 to protect the interests of independent wholesale bakers.
National Pasta Association (NPA) was founded in 1904 and is an organization of pasta manufacturers, millers and suppliers to the US pasta industry which serves as a cohesive industry advocate, a promoter of pasta and a center of knowledge for its members. [email protected]
North American Millers’ Association (NAMA) is the trade association representing 43 companies that operate 170 wheat, rye, oat and corn mills in 38 states and Canada. Their collective production capacity exceeds 175 million pounds of product each day, more than 95 percent of the total industry production.
USA Rice Federation is the global advocate for all segments of the U.S. rice industry with a mission to promote and protect the interests of producers, millers, merchants and allied businesses. Over 20 billion pounds of long, medium, and short grain, and organic and specialty rices are grown and harvested each year by farmers in Arkansas, California, Louisiana, Texas, Mississippi and Missouri.
Wheat Foods Council (WFC) is a nonprofit organization formed in 1972 to help increase public awareness of grains, both whole and enriched, complex carbohydrates, and fiber as essential components of a healthful diet. The Council is supported voluntarily by wheat producers, millers, bakers, and related industries.