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4 Perspectives from the Food Industry Key Presenter Messages • The food industry is reformulating foods, modifying labels, changing marketing practices, and taking other steps to ad- dress the obesity epidemic. • The restaurant industry is reformulating meals for children, providing nutrition information on menus, developing edu- cational programs, and otherwise making changes to prevent childhood obesity. • Food manufacturers and the restaurant industry have identified a demand for healthier products and have responded to this demand with new or modified products. • Both industries place a high value on giving the consumer a range of options and on the importance of consumer choice. Representatives of the grocery and restaurant industries provided a valuable look at how industry views the problem of childhood obesity and how the problem can best be addressed. The food industry supports many of the initiatives that have been undertaken to prevent childhood obesity, and industry associations have taken important steps to help by chang- ing the manufacturing and marketing of foods and beverages. However, 21

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22 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION industry associations tend to oppose legally imposed limitations on con- sumer choice or, in many settings, restrictions on food and beverage offer- ings. Industry representatives who spoke at the workshop emphasized that understanding the perspective of industry will be essential in formulating workable solutions to the obesity epidemic. THE PERSPECTIVE OF THE GROCERY INDUSTRY The Grocery Manufacturers Association (GMA), which represents more than 300 food, beverage, and consumer product manufacturers and retailers, strongly supports First Lady Michelle Obama’s goal of eliminat- ing childhood obesity within a generation, said Scott Faber, the GMA’s vice president for federal affairs. “As the First Lady has said,” he noted, “this is not a disease where we are still waiting for a cure to be discovered. We know the cure for this. We have everything we need right now to help our kids lead healthy lives.” Everyone, including industry, has a role to play in helping Americans build healthy diets and lead active lifestyles, Faber said. In recent years, the food industry has changed the recipes and sizes of more than 20,000 products to reduce sugars, fats, calories, and sodium. In particular, food manufacturers have reduced or eliminated saturated fat in more than 6,600 products, reduced or eliminated trans fat in more than 10,000 products, reduced calories in more than 3,500 products, and reduced sodium in more than 3,100 products. Food manufacturers are continuing to reformulate their products to make further reductions in sugars, fats, calories, and sodium—“to go faster and farther, in the First Lady’s words,” as Faber put it. Food companies recently pledged through the Healthy Weight Commit- ment Foundation to reduce calories in the marketplace by 1.5 trillion by the end of 2015, with an interim goal of a 1 trillion calorie reduction by 2012. The companies are reporting annually to the Partnership for a Healthier America on the progress they are making toward this commitment, and the Robert Wood Johnson Foundation is supporting an independent evaluation of this effort. The food industry also must help consumers make healthy choices by providing more information about its products, Faber said. The GMA is working with the Food and Drug Administration (FDA) and others to develop a science-based front-of-package nutrition labeling system that will make it easier for consumers to make informed decisions at the point of purchase (see also Chapter 3). This system could be broadly adopted by many if not all food companies. The goal announced by the FDA for the front-of-package labeling system is to increase the proportion of consum- ers who readily notice, understand, and use nutrition information to make more nutritious choices for themselves and their families. In addition, the

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23 PERSPECTIVES FROM THE FOOD INDUSTRY GMA supports the guiding principles developed by the Institute of Medicine (IOM) Committee on Examination of Front-of-Package Rating Systems and Symbols (IOM, 2010), Faber said. As spelled out by the committee, these systems should include nutrients that are most strongly associated with the diet-related health risks affecting the greatest number of Americans, the information provided should be consistent with the Nutrition Facts panel, and front-of-package systems should apply to as many foods as possible. The front-of-package labels should be used by as many consumers as pos- sible and should motivate consumers to use the Nutrition Facts panel. And the labels should be consistent with the Dietary Guidelines for Americans, which identify nutrients both to limit and to emphasize. The industry also is developing a public education campaign to pro- mote consumer understanding of the nutrition information included on labels. The industry plans to measure awareness, comprehension, and use of the front-of-package system so that it can continually make adjustments to its public education efforts. Beyond the use of labels, the industry is changing the way it markets its products, especially to children, Faber said. Working with the Council of Better Business Bureaus, food and beverage companies have launched the Children’s Food and Beverage Advertising Initiative (CFBAI) to help promote healthier dietary choices and lifestyles among children under age 12. The initiative was designed to shift the mix of advertising focused on children to include healthier products based on the Dietary Guidelines for Americans and FDA standards. The result has been “a significant reduction in the amount of food and beverage advertising viewed by children and, more importantly, a significant shift in the composition of advertisements to feature more and more healthy products,” according to Faber. Between 2004 and 2008, children viewed 31 percent fewer food, beverage, and res- taurant advertisements in children’s programming. Advertising increased for foods with fewer calories and more nutrients, such as soups, while declining for other foods, such as soft drinks, snack bars, and frozen pizza. A recent survey found that 83 percent of the advertisements produced by CFBAI members were for products, such as milk, fruits, and vegetables, that provide nutrients currently lacking in many children’s diets (CFBAI, 2009). In addition, more than 100 products regularly consumed by children have been reformulated to meet CFBAI nutrition standards. In particular, significant changes have been made to breakfast cereals to reduce sugars, fats, and sodium and to increase beneficial nutrients. All CFBAI cereals now contain no more than 12 grams of sugar per serving. More than half contain less than 10 grams of sugar per serving, and all provide essential vitamins and minerals. Many contain whole grains, and several are a good source of fiber. Virtually all meet the FDA definition of healthy, Faber said. Recent changes made as part of the CFBAI also have expanded limits

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24 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION on the use of licensed characters in advertising to children. Nutrition stan- dards have been applied to new and emerging media platforms as well as to traditional media. Faber added that the CFBAI will conduct a nutrition science review in 2011 to address changes in the Dietary Guidelines for Americans. Faber observed that the messages delivered through advertising are an opportunity to promote healthy diets and active lifestyles. At the same time, he said, the link between advertising and childhood obesity is not yet clear. While there is an established connection between sedentary behaviors such as television viewing and obesity, the IOM concluded in its report Food Marketing to Children: Threat or Opportunity? that the evidence is insufficient to support a conclusion about a causal relationship between television advertising and adiposity (IOM, 2006). More recent studies have corroborated the report’s conclusions. In an analysis of the link between television advertising and obesity conducted for the GMA, George Wash- ington University Professor Howard Beales found that recent studies do not distinguish successfully between the effects of advertising and the impacts of other factors associated with television viewing. These studies underscore that many aspects of people’s lifestyles are associated with obesity, not just advertising. Government also has an important role to play in combating obesity, Faber observed. The Affordable Care Act of 2010 includes several signifi- cant tools to that end, including childhood obesity demonstration grants; other grant programs to support healthy diets and lifestyles, such as the Community Transformation Grants being made available by the Centers for Disease Control and Prevention; and new menu labeling requirements (see Chapter 3). In addition, the American Recovery and Reinvestment Act of 2009 included a $1 billion prevention wellness fund, which has provided significant new resources for combating obesity. Government could do much more to support healthy diets and life- styles, especially among children, Faber argued. It could set standards for physical activity in schools, as proposed in H.R. 4557. It could integrate physical activity throughout the school day, as proposed in S. 651. It could track levels of physical activity on a state-by-state basis, as proposed in H.R. 1585. It could expand funding for physical education program grants, as proposed in several bills. And it could establish national standards or a core curriculum for physical education, as proposed in H.R. 5209. Government also could do much more to promote physical activ- ity before and after school, Faber said. For example, government could expand the Safe Routes to School program, as proposed in H.R. 4021; expand programs that support sports in low-income communities, such as the National Youth Sports program; support after-school programs that provide opportunities for physical activity; or provide new resources to

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25 PERSPECTIVES FROM THE FOOD INDUSTRY build sidewalks, parks, and trails, as proposed in H.R. 5209. The upcoming reauthorization of both education and transportation legislation provides a rare opportunity to build physical activities into the lives of children before, during, and after school. In addition, government could do much more to provide healthy eating choices in schools, suggested Faber. The GMA strongly supports efforts to pass a stronger Child Nutrition Act. Legislation should provide the U.S. Department of Agriculture with more resources and give it clear authority to set standards for all food sold to students during the school day, includ- ing á la carte and through vending machines. The GMA also strongly supports current efforts to improve the nutritional quality of food offered through the reimbursable meal program. All food sold at school should meet science-based standards, said Faber. In addition, the GMA strongly supports a proposal to expand meals served after school and during the summer months. Government could do more to support healthy choices at home as well. For example, government could promote greater access to healthy foods by bringing grocery stores to underserved areas, as has been proposed by the White House Task Force on Childhood Obesity and in H.R. 6258. As indi- cated by a recent report from the U.S. Department of Agriculture (USDA, 2009), more than 20 million Americans living in low-income neighbor- hoods lack access to a grocery store, and therefore lack access to healthy food choices. Policies that support healthy diets and lifestyles enjoy broad public support and broad bipartisan support among policy makers. A recent poll found that eight in ten Americans believe childhood obesity is a serious problem, and roughly seven in ten believe preventing childhood obesity is an important priority for government. Given the breadth and depth of concern about the problem, said Faber, it is not surprising that a wide range of organizations and both Democrats and Republicans support bills that have been proposed to prevent childhood obesity. Finally, Faber addressed the GMA’s position regarding proposed legis- lation that would limit the foods that can be purchased with food stamps. Solutions to childhood obesity that provide more opportunities for physical education and more healthy choices at school and in the grocery aisle are solutions that trust Americans, he said, rather than telling them to make good choices. Government should work to make the healthy choice the easy choice, not to limit choice. For that reason, government should not limit the choices made by the recipients of food stamps at a time when many Americans are struggling to feed their families. Limiting the choices of food stamp recipients would be discriminatory, suggested Faber, would be difficult to implement, and would discourage program participation. Furthermore, such limits will not work, he argued. If choice is limited,

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26 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION food stamp recipients will use cash to purchase prohibited items. Moreover, there is no evidence that food stamp recipients are more likely than other Americans to be overweight or obese. In fact, studies have shown that chil- dren in low-income households have a lower risk of being overweight if they participate in certain federal feeding programs. A better course, Faber suggested, might be to provide food stamp recipients with discounts for fruits and vegetables. Research suggests that a 10 percent discount on the price of fruits and vegetables would increase purchases of those products by 6 to 7 percent, increasing consumption from 1.95 cups to 2.08 cups; a 20 percent reduction in price would raise consumption to about 2.2 cups. Faber closed by quoting the First Lady: childhood obesity is not the kind of problem that can be solved overnight, but with everyone working together, it can be solved. THE PERSPECTIVE OF THE RESTAURANT INDUSTRY “The restaurant industry is concerned about the health of customers and is increasingly putting nutrition at the center of the plate,” said Joan McGlockton, vice president of industry affairs and food policy, National Restaurant Association. McGlockton described several overlapping initia- tives designed to reduce obesity in children. One significant accomplishment has been to bring together a group of contracted school lunch providers—Aramark, Chartwells, and Sodexo— with White House and agency staff to develop a groundbreaking agree- ment, unveiled by the First Lady in February 2010, on foods offered in the National School Lunch Program. McGlockton explained that these pro- viders pledged to support the goals of the administration’s Healthier U.S. Schools Challenge by including more fruits, juices, vegetables, whole grains, and low-fat milk in reimbursable lunches. They also have pledged to meet the IOM’s recommendations for fat, sugar, and whole grains over the next 5 years and for sodium over the next 10 years, to double the use of produce in schools over the next 10 years, and to provide nutrition information for parents and students in schools. Another initiative McGlockton described is a 5-year strategic plan that the National Restaurant Association adopted 2 years ago. The strategy centers on four imperatives, one of which is to promote healthy living. As part of this initiative, the industry supported the menu labeling provi- sions enacted into law in 2010, which call for calorie information to be included on menus and for nutrition information to be available to res- taurant customers upon request. “In fact, we pushed for that legislation,” said McGlockton. She noted that the industry has joined forces with more than 70 public health stakeholder groups to advocate for a federal standard

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27 PERSPECTIVES FROM THE FOOD INDUSTRY for clear, easy-to-use information at the point of ordering, presented in a standardized way nationwide. The restaurant industry is very customer focused, McGlockton said, and its customers are saying that they want more nutritionally balanced meals. In particular, a recent survey revealed that customers are seeking nutritionally balanced meals for their children. Healthy children’s meals are the most important 2010 food trend in the quick-serve segment of the industry, cited by nearly three in four quick-serve operators surveyed by the association. Nearly two-thirds of the quick-serve operators surveyed said they offer more healthful choices for children than they did 2 years ago. About half of family dining operators, two in five casual dining operators, and one in three fine dining operators reported that they offer more healthy choices. According to a recent study, menu items labeled as healthy increased by 65 percent between the second quarter of 2009 and 2010. “In some instances, healthy side dishes are becoming the default,” said McGlockton. “Low-fat milk or fruit juices are being offered instead of sodas, and we are increasingly seeing restaurants offer low-calorie meals for kids with all the corresponding nutritional information for the meal right on the menu.” Providing more information and menu options does not automatically translate to consumption of healthier foods, McGlockton acknowledged. Even though consumers say they want more nutritionally balanced meals, they do not always purchase what they say they want. Anecdotal evidence from earlier attempts to provide healthier products indicates that labeling food as healthy in restaurants can backfire, resulting in a decline in sales of those meals identified as healthier. “We need to do a better job to under- stand what messages resonate with what audiences as we go forward with menu labeling and with education,” said McGlockton. As consumers become more accustomed to seeing calorie information on menus, they will better appreciate the difference between a 500- and a 1,500-calorie meal, McGlockton suggested. At the same time, the public health community needs to expand efforts to push for nutrition education in all segments of society. Every student, especially those in health care, should be required to take a nutrition class. McGlockton expressed the belief that a national strategy is needed to ensure that all Americans receive nutrition education. The industry is eager to participate in that endeavor, said McGlockton. It is currently partnering with the American Dietetic Association to develop a curriculum for a course that will train dietitians in menu labeling. The industry also is partnering with the Dietary Guidelines Alliance, a partner- ship among leading health organizations and government and food industry organizations dedicated to providing consumers with concrete, practical advice on how to apply the Dietary Guidelines to their lives.

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28 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION The National Restaurant Association is a founding partner of Healthy- DiningFinder.com, which was developed with partial funding from the Centers for Disease Control and Prevention. HealthyDiningFinder.com is a free resource for the dining public that helps identify healthy choices on restaurant menus. The Healthy Dining Finder website, which features more than 70,000 participating restaurant locations, enables customers to search by restaurant name, location, price range, and takeout availability to find dietitian-approved dishes that emphasize lean protein, fruits, vegetables, and whole grains. These are all steps in the right direction, said McGlockton, but taste remains the top influence on purchasing decisions. Healthy foods need to be desirable foods, which is why continued sensory research is vital. Healthy Dining Finder has received a small business grant through the Centers for Disease Control and Prevention to test the feasibility of modifying standard restaurant recipes to reduce oil, cheese, mayonnaise, and the like to a degree that is not detected or is acceptable to restaurant customers. McGlockton suggested that more grant dollars should be available for studies to explore how restaurants can deliver reformulated menus in a cost-effective manner. This type of research can help the industry formulate and modify recipes for healthier consumption and customer acceptability. The National Restaurant Association, the Produce Marketing Asso- ciation, and the International Foodservice Distributors Association have together pledged to double the amount of produce in the schools they serve over the next 10 years. This partnership is bringing together farm- ers, suppliers, distributors, chefs, and retailers to conduct the research needed to learn about effective approaches to enhancing taste and finding ways to make produce more fun and desirable. The National Restaurant Association is also an advisory member of the Culinary Institute of Amer- ica’s healthy menus research and development collaborative. McGlockton explained that the idea behind the collaborative is to bring together a small group of industry leaders in food service to focus on opportunities for collaboration on health-promoting culinary strategies. The first phase of this collaboration will emphasize reducing sodium and increasing the use of produce in food service. In addition, the Culinary Institute of America and the National Restaurant Association are in the planning phases for a conference to be held in May 2011, focused exclusively on healthy flavors and healthy foods for children. McGlockton noted that, as a lawyer speaking at a workshop on legal strategies to prevent childhood obesity, she would be remiss if she did not describe the association’s position on legal activity that has the effect of restricting the growth of restaurants or their offerings. Reemphasizing that the industry is very sensitive to customer tastes, she noted that restaurants that fail to respond well to customer demands tend not to survive. “The

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29 PERSPECTIVES FROM THE FOOD INDUSTRY industry inherently does not think that a legal course of action is desirable,” she said, “as it will only drive resources on both sides of whatever legal battles one thinks should be enjoined, and there is no conclusive evidence that it will fundamentally change consumer behavior.” Resources that might otherwise be deployed toward legal action should be deployed first and foremost to education, McGlockton suggested. Changes in eating habits are accomplished not by legal battles but by edu- cation and the internal motivation for change, she said. The restaurant industry is as diverse as the nation and what families put on their plates every day, noted McGlockton. While the industry does have large-scale brands, the vast majority of restaurant owners in the United States own one or a small number of restaurants. Even the largest brands generally consist of franchises owned by small businesses. The restaurant industry provides about a third of Americans with their first jobs, said McGlockton, and “we are a vital part of the communities across the nation, every day trying to deliver enjoyable eating experiences.” Most restaurants have a low profit margin per unit sold. Successful restaurant owners and operators are generally willing to take risks and to fight for every penny that flows to their bottom line. “I’m not sharing this with you in any way to imply that what I have described absolves us somehow of our concern for our nation’s health,” said McGlockton. “But I do think it helps in find- ing common ground [with] independently minded folks challenged by an elusive bottom line. [They] generally are not inclined to welcome anything that might increase the cost of operating their businesses, . . . whether in the form of taxes, mandates, regulations, or otherwise.” In a September 2010 speech to the board of directors of the National Restaurant Association and industry leaders regarding childhood obesity, Mrs. Obama applauded the restaurant industry for its achievements in pro- moting healthy living, but she urged the industry to make the healthy food the easy food and to make changes more quickly. “No one wants an obese America, and no one wants the chronic diseases associated with that,” McGlockton concluded. “We stand ready to do our part in addressing the health of Americans.” DISCUSSION During the discussion period, James Krieger of the Seattle-King County Public Health Department suggested that education is a fairly weak inter- vention to change what people purchase in restaurants. More effective inter- ventions would include changing the items on menus, removing unhealthy foods, and changing the relative prices of foods. Krieger also suggested that the National Restaurant Association backed the menu labeling provision in

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30 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION the Affordable Care Act because it feared a proliferation of nonstandard- ized menu labeling requirements across the country. McGlockton responded that the association is trying to bring the food supply chain together to work on providing different options to consum- ers and producing healthier foods that cost less. With respect to removing unhealthy foods, she reiterated the point that restaurants are very consumer driven. “We give our consumers what they ask for. Consumers are asking for healthier foods, and we are putting those healthier foods out there. But consumers are still asking for some of the old mainstays and some of the indulgent foods as well.” As long as consumers demand such foods, the industry will supply them, she explained. At the same time, the industry is looking at ways of reformulating unhealthy foods to make them healthier. Mark Gottlieb, Public Health Advocacy Institute, Northeastern Uni- versity School of Law, Boston (whose presentation is summarized in Chapter 7), asked McGlockton about indulgent menu items geared toward children, who may not be as responsive as adults to countervailing mes- sages. McGlockton replied that significant changes are occurring in this area. More and more restaurants are offering healthier side items for children—for example, carrot sticks and apple fries instead of french fries. Meals of 600 calories or less are being designed for children, with all the nutrition information provided on menus. Another idea is to incentivize children to order from special healthier menus by donating a percentage of the sales of those items to fitness and nutrition programs in their schools. Patricia Crawford, a member of the IOM’s Standing Committee on Childhood Obesity Prevention, said she was pleased to find so much health information on the websites of restaurants, but noted that “health” is defined in many different ways on those sites, even in ways that can be misleading. McGlockton observed that the National Restaurant Association is looking forward to the release of the new Dietary Guidelines, which res- taurants will use to present their foods and define what is healthy and what is not. Also, the association is working with its members and the public health community to arrive at a common definition of healthy, particularly with respect to children’s meals. Schneeman added that the FDA defines “healthy” according to specific criteria for nutrient content. When a restaurant makes a claim that a par- ticular food is healthy, that claim is subject to those criteria. James Marks, senior vice president and director of the Health Group at the Robert Wood Johnson Foundation, asked whether restaurants and researchers will be able to track the reduction in calories consumed in restaurants as menu labeling becomes widespread. Portion sizes and prices also could be tracked and benchmarked, he suggested, much as mileage standards are used in the automobile industry. McGlockton responded that the industry has discussed such a system but has not yet figured out how

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31 PERSPECTIVES FROM THE FOOD INDUSTRY to implement it. Also, she added, the industry is not monolithic, and one chain or restaurant may be able to do such tracking while another cannot. In response to a question about whether eliminating childhood obesity in a generation will have an effect on food companies, Faber pointed out that many of the companies that sell foods have existed for more than a century, and during that time have continually innovated to meet the chang- ing demands of consumers. Consumers today are demanding more low-fat, low-sodium, and low-calorie options, and the food industry is meeting those demands. “I can reassure you that when we do end childhood obesity in our lifetimes and within a generation, our companies will be doing just fine,” he said. Faber also observed that the kinds of choices available in supermarkets today are dramatically different than they were even a decade ago. “It is easier to make a healthy choice,” he said, “and it will continue to be easier and easier for people to find low-fat, low-sodium, low-sugar options that are provided in a variety of sizes so that people who want to make the healthy choice can make the healthy choice.” In addition, the industry has tried to use labels to communicate more nutrition information about what is inside the packaging. He stressed that the industry understands the urgency of the issue. Vladeck observed that the companies that have joined the CFBAI have generally fulfilled their pledges, according to independent research. The problem is that in some instances the bar was set too low, and there has been a lack of consistency across the pledges. Also, the pledges do not cover all media, such as packaging and in-store promotions. Recent announce- ments by the initiative have pointed to possibilities for improvement, he said.

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