Ask a Food Lawyer – Legal Tools to Stop Junk Food Marketing to Children

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Cross-posted from  Eat Drink Politics

Interview with Cara Wilking, senior staff attorney, Public Health Advocacy Institute

 

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source: Eat Drink Politics

 

For this installment of Ask a Food Lawyer, we profile Cara Wilking, senior staff attorney with the Public Health Advocacy Institute, at Northeastern University School of Law. Her research focuses on the role of state consumer protection laws laws to limit unfair and deceptive food marketing to children. She also provides legal technical assistance to public health officials working to reduce sweetened beverage consumption and to increase access to drinking water. She is an adjunct professor at Northeastern University School of Law where she teaches the Public Health Legal Clinic.

 

 

 

 

Your role includes providing “legal technical assistance.” What does that mean?

 

Legal technical assistance is about providing expertise on legal and policy issues rather than providing legal advice to a client in the traditional sense. For example, I have worked with a local health department to think through different policy approaches that can be brought to bear on a tricky public health issue like reducing sugary drink consumption.

 

You recently co-authored a study finding that fast food television advertisements directed to children fail to meet the industry-funded Children’s Advertising Review Unit (CARU) voluntary guidelines. How are the results significant?

 

This was an interdisciplinary research project spearheaded by researchers at Dartmouth University’s medical school. The study analyzed TV advertisements, frame-by-frame, on four children’s networks over the course of a year. I found the stark difference in messages between adult and child advertisements to be significant. CARU guidelines specify that if an ad has a premium message (i.e. a toy), that message must be clearly secondary to the actual product advertised (i.e. the food). What the research showed, however, was that while adult ads focused on food, taste, and price, child ads focused on pretty much everything but the food; movie tie-ins, toys, giveaways, street views of the restaurant and brand logos. Even the physical size of the food images on the screen in child ads was half the size of those in adult ads.

What this shows is that CARU’s current method of analysis to determine whether fast food companies are adhering to their self-regulatory standards is inadequate. From a legal perspective, when companies make public pledges to do one thing and then do not fulfill those promises, they start to drift into making false representations to the public about their business conduct. Nike, Facebook and Myspace have been taken to task under state consumer protection laws for saying one thing and doing another. State regulators should be taking a hard look at McDonald’s and Burger King in light of these findings.

 

What’s the next step, legally, in addressing fast food ads directed to children?

 

There are several steps, actually. I think the public health advocacy community needs to address specific fast food companies when it comes to advertising. Our study showed that McDonald’s and Burger King were responsible for 99% of all child fast food advertising on television. Efforts to curb fast food advertising on television should be directed at these two companies, because, as the dominant players, any changes they make would have ripple effects across the industry.

Also, cities and states should follow San Francisco’s lead to put local pressure on companies to improve the nutritional profile of the meals they serve that are accompanied by toys. If further research shows that toy premiums in ads are so persuasive to kids that they trump any other message in the ads, then premiums should not be advertised on television or via digital media so that companies can fulfill their self-regulatory promise to keep the advertising focus on food.

 

What role do you think lawyers play in supporting the good food movement?

 

This is an interesting question for me, because lawyers fall into two categories in my line of work. In public health departments, lawyers that advise officials on their scope of authority tend to be viewed as roadblocks to creative public health problem-solving. Lawyers tend to be risk-averse in most cases, which can be perceived as contrary to the goals of pushing the public health agenda forward. On the other hand, in my role as an advocate I get to brainstorm over thorny public health issues with public health practitioners and officials. As a lawyer, I can develop viable policy approaches, point out current laws that can be enforced more aggressively, unaddressed areas that need to be looked at creatively, and anticipate potential hurdles to potential solutions.

 

What’s most exciting to you about the good food movement?

 

I think there’s a growing movement against self-regulation, which is exciting. The public health community will continue to work with food companies, but if they continue to break their self-regulatory promises, there is only so much that people can tolerate. At a certain point, public promises that are not supported by actual changes in business activities begin to look a lot like misrepresentations. I think the good food movement needs to continue being dynamic and keep up the pressure on these companies to change how they do business.

 

What advice do you have for aspiring food and public health lawyers?

 

Everyone knows that the legal job market is very difficult right now. It’s even worse for people who are looking for work that matches their worldview, values, and passion. I think there’s a sense among new graduates that doing work not in line with one’s worldview isn’t useful, and I think that mindset needs to change. There is a mental shift that needs to take place to put the focus on strong legal skill-building, instead of subject matter expertise at the beginning of a legal career. So, my advice to a new lawyer is to surround yourself with experts in a field, at the top of their game, who are willing to mentor and train you in as many practical legal skills as possible. Then, you can leverage those skills into a field that you are passionate about.

 

For more information visit www.phaionline.org and follow @PHAIatNUSL. Many thanks to attorney Neil Thapar for assistance with this interview.

Four Alcohol Brands Dominate Popular Music Mentions

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Four alcohol brands – Patron tequila, Hennessy cognac, Grey Goose vodka, and Jack Daniel’s whiskey – accounted for more than half of alcohol brand mentions in the songs that mentioned alcohol use in Billboard’s most popular song lists in 2009, 2010 and 2011, according to a new study published online by Substance Use & Misuse. The first study to examine the context of specific brand mentions in depth, researchers found that alcohol use was portrayed as overwhelmingly positive, with negative consequences rarely given.

Stop TPP Protections for Big Tobacco

Posted on by Corporations and Health Watch

Cross-posted from Action on Smoking and Health

source:
credit: Public Citizen

 

The U.S. has a rare opportunity this week to rein in the tobacco industry, and assert its mandate to protect and save lives, while proudly exercising cross-border diplomacy. The U.S. Trade Representative should accept a proposal to carve protections for Big Tobacco out of the Trans Pacific Partnership (TPP), a mega-trade deal among 12 Pacific Rim nations, including the U.S.

 

Americans generally like breathing smoke-free at bars, restaurants, offices, airplanes and elevators. The tobacco industry has noticed, and they’re not happy about it. Under present trade rules, predatory tobacco corporations have new global rights to challenge important tobacco control laws and regulations in the U.S. and elsewhere that help people quit smoking, and keep kids from getting addicted, like a ban on clove cigarettes, and limitations on advertising. The TPP would perpetuate and extend these trade rules and their threats to health.

 

Malaysia’s chief negotiator last week proposed the only effective solution: Carve out tobacco control regulations and laws, and also remove tobacco products, from being covered by the TPP.

 

CPATH and important medical and public health allies have applauded Malaysia’s carve-out proposal. On Sunday, Sept. 1, the NY Times editorial board stated its support. The tobacco industry and their allies, on the other hand, are busy blowing smoke about it, and the U.S. is balking.

 

Tobacco use is the leading preventable cause of death, claiming 6.3 million deaths a year, including 1,200 Americans daily, and draining almost $200 billion a year in U.S. health care costs and lost productivity. Tobacco is barely a blip in the U.S. economy, and less than a fraction of a percent of our exports.

 

Trade agreements are supposed to lower prices for goods through competition. But lower prices for cigarettes means more kids will buy them, with damaging results for health.

 

Carving out tobacco is hardly a radical proposal. The global economy is dynamic, and the rules that govern it must be responsive. In 2007, for example, the Bush administration decided to exclude the U.S. gambling services sector from coverage by World Trade Organization rules, after the WTO ruled against the U.S. Internet gambling ban.

 

But tobacco is highly addictive, and as a result, highly profitable. Industry defenders are rushing to insist that the U.S. should develop an alternative proposal, and bring it back to the negotiating table. In fact, just such a proposal developed by the U.S. in August was deemed by local legislators as virtually ineffective.

 

The truth is, it is not that complicated. The TPP negotiations are negotiations. Our trading partner, Malaysia, has summoned the political will to advance a straightforward, effective proposal, one advocated unanimously for years by every major medical and health organization that has looked into the matter: carve out tobacco measures out of trade agreements, thereby eliminating the tobacco industry’s grounds to challenge these measures. It is also consistent with the Framework Convention on Tobacco Control, an international covenant supported by 176 countries worldwide, including all TPP partners except the U.S.

The TPP negotiators will meet in Washington, D.C., starting on Sept. 8, and again later in the month. After almost four years of talks, the 12 TPP countries have reportedly made only partial progress on key issues. Acknowledging countries’ rights to adopt their own domestic regulations on tobacco is one issue where the U.S. Trade Representative can and should gracefully demonstrate statesmanship, as well as the Administration’s determination to reduce the toll of preventable deaths, and agree to Malaysia’s historic proposal to carve out tobacco from the TPP.

 

How a Cabal Keeps Generics Scarce

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According to the American Society of Health-System Pharmacists, a group that maintains a closely watched drug-shortage database, reports the New York Times, 302 drugs were in short supply as of July 31, up from 211 about a year earlier.  About a year ago, President Obama signed a law that was supposed to end chronic shortages of lifesaving drugs. But the critical lack of generic drugs continues unabated. It is a preventable crisis that is inflicting suffering on patients and, in some cases, causing needless deaths.

Trans Pacific Partnership Trade Pact Threatens Public Health

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Two recent commentaries summarize the public health objections to the Trans Pacific Partnership, a new global trade pact now in its final stages of negotiation.  An editorial in the New York Times argued that “American trade officials need to toughen their stance when Trans-Pacific Partnership negotiations resume. They should be siding with the public and those concerned about public health, not the makers of products known to be lethal and highly addictive.”  In an earlier Op Ed in the Times, New York City Mayor Michael Bloomberg asked “Why is Obama Caving on Tobacco?”. He wrote that “a deal that sells out our national commitment to public health, and forfeits our sovereign authority over our tobacco laws, does not merit the support of Mr. Obama; of the Senate, which would have to ratify it; or of the American people.”

Interview with Janelle Orsi, Executive Director of the Sustainable Economies Law Center

Posted on by Corporations and Health Watch

 Cross-posted from Eat Drink Politics

 

This time on Ask a Food Lawyer, instead of answering questions, I’m doing the asking. Numerous food lawyers across the country are working hard to improve the food system. From drafting legislation to challenging corporate misconduct to supporting sustainable alternatives, these smart lawyers are playing a critical role, yet receive little credit for the important work they do.

 

via Eat Drink Politics
via Eat Drink Politics

Janelle Orsi is an attorney in Oakland, California who practices “sharing law.” In addition to her law practice, she is executive director of the Sustainable Economies Law Center, a non-profit organization whose mission is to provide “education, research, advice, and advocacy for just and resilient economies.” She is also author of “Practicing Law in the Sharing Economy,” a guide for lawyers interested in navigating the emerging field of sharing law. I included her on my recent list of the top ten lawyers in the food movement for offering free advice sessions, or “legal cafes,” for small community-based food and other entrepreneurs through SELC. For more information about Janelle and SELC, visit theselc.org and follow them on Twitter @JanelleOrsi and @TheSELC.

 

What is “sharing law” and how does it intersect with the good food movement?

 

Sharing law is a term I use to describe legal work related to any community-based project or business formed on the basis of sharing resources, like cohousing, cooperative businesses, urban farms, and even car sharing enterprises. The law practice of sharing law includes services like advising clients and drafting agreements and bylaws to form legal entities and to define how sharing will take place.

 

If we are going to move from the current centralized food system to a local, diversified new food economy, sharing has to be part of the solution. Corporate control of our food system vests decision-making power with a very small group of people whose profit-maximizing goals often deplete resources from communities rather than strengthen them. I think the cooperative model offers a solution to this problem by distributing power among many small-scale producers, owned by community members or workers whose goals are in closer alignment with those of the community as a whole. I envision a localized, small-scale food supply chain from farm to fork, built on a foundation of sharing and cooperative ownership.

 

Besides having your own law practice, you co-founded the Sustainable Economies Law Center. You must be busy. What’s a typical day like for you?

 

I don’t think there is such a thing, that’s what makes it so interesting! When I started my practice, I spent most of my time with individual clients. When I realized I needed to address some of the bigger issues in sharing law, I co-founded SELC and stopped seeing as many clients. Now, I spend most of my time teaching workshops on sharing law to other lawyers, mentoring legal apprentices on their way to becoming lawyers, writing, and doing interviews about a variety of sharing law subjects. I really don’t practice law all that much anymore, except for when I provide legal advice to clients at our Resilient Communities Legal Cafes. I’m on the computer a lot!

 

SELC recently championed the California Homemade Food Act, which makes it legal in California to sell certain food products made at home. Why did SELC take this on and how does this law benefit the public?

 

One major strategy for SELC is to whittle away at the legal barriers we think unreasonably prevent people from starting small-scale food businesses. Before the California Homemade Food Act passed, California law prohibited anyone from selling food produced in his or her home kitchen. A couple years ago, we noticed several other states had passed laws allowing people to produce and sell non-potentially hazardous foods out of their home kitchen. On the premise that some foods made at home didn’t pose a health safety risk and that face-to-face interactions between buyer and seller would incorporate higher levels of trust and accountability, we decided to push for a change in the law. It was the first piece of legislation we successfully carried through the state legislature and we’re glad to see so many cottage food operations starting up as a result.

 

What other legislation is SELC working on?

 

The Neighborhood Food Act is the next step in our drive to change the law regarding food production. Currently, zoning ordinances in most cities and counties in California restrict or prohibit commercial agriculture in urban areas, making the sale of food produced in one’s backyard, community garden, or on an empty lot illegal. Even if it isn’t illegal, the required permits and soil tests are often cost-prohibitive. Our proposal will make it easier for people living in urban areas, including people in housing governed by homeowners associations and tenants on leased property, to grow and sell food regardless of the zoning classification of the property.

 

As the sharing economy grows, what will prevent it from cooptation by corporate interests?

 

That’s a good question. I suppose that risk always exists, but I think that the cooperative model is our best bet against cooptation. There are two distinct features of a cooperative model that make it hard to fake. First, cooperatives are democratically controlled by their members, each having equal decision-making power. This tends to maintain high workplace standards and increase accountability within the cooperative and in relation to the public, features that don’t exist in the corporate model. Second, profits distributed to cooperative members are based on patronage dividends, which reward each member according to their involvement in the coop. So, in a potential sale to a corporation, the incentive to sell to make a big profit doesn’t exist for any single individual.

 

What role do you think lawyers play in building and supporting the good food movement?

 

Anybody starting a new food enterprise should talk to a lawyer. It’s not that I want to increase business for lawyers, it’s that many legal issues inevitably arise when starting a new food business, and some can make or break the business. So, it’s important to have a lawyer to spot potential issues at the start, before investing a lot of time, energy, and money.

 

In addition to representation, I think lawyers can provide valuable insight in forming new policy. Lawyers often come up against legal barriers when representing clients and can anticipate problems in the law’s application or interpretation. I think lawyers should be advising policymakers as well as leading food policy reform.

 

Lastly, I think lawyers must be promoters of the good food movement as well as participants. It’s necessary for the public to invest in a new food business to make it viable; for that to happen, there must be a relationship of trust between the community and the business. I think lawyers can help foster that relationship.

 

What, as a lawyer, is most exciting to you about the good food movement?

 

Well, as a human being, I just really like food! As a lawyer, I think the food movement is, and will continue to be, the testing ground for many of the changes we need across sectors to move towards a new economy. Cooperatives, community supported enterprises, local currencies, and local investment are all already playing out in the food sector, so I think it is very fertile ground for new legal models. Part of the reason I think food is attracting so much attention is because it directly affects everyone. Unlike say, energy or finance, people make choices about food every day, several times a day! The more times people have to think about their choices, the more potential exists for change.

 

Many thanks to attorney Neil Thapar for assistance with this interview.

Corporations and Health Watch Goes Back to School: 10 Recent Articles for Fall 2013 Courses

Posted on by Corporations and Health Watch
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source: Flickr

 

As the summer draws to an end and the start of a new semester looms, those of us in the health teaching and learning business consider how best to make sure how our Fall courses prepare students to meet their professional responsibilities.  To assist CHW readers who believe that public health professionals ought to understand more about how business practices influence health, I suggest 10 articles that can be added to a variety of Fall courses, including courses on health behavior, epidemiology, global health, health policy, public health history, health ethics, or health equity. To suggest others, send a message to newsletter@corporationsandhealth.org and we’ll post a compilation of your responses. The goals of these readings are to encourage students to analyze corporate practices as a modifiable social determinant of health and consider public health strategies to change harmful corporate practices. They can also help readers to assess the similarities and differences among the strategies these different industries use. 

 

Ten Recent Articles to Add to Health Courses on the Impact of Corporate Practices on Health

 

Baum FE, Sanders DM. Ottawa 25 years on: a more radical agenda for health equity is still required. Health Promot Int. 2011 Dec;26 Suppl 2:ii253-7.  pdf

 

Brandt AM. Inventing conflicts of interest: a history of tobacco industry tactics. Am J Public Health. 2012 Jan;102(1):63-71.  Abstract

 

Douglas MJ, Watkins SJ, Gorman DR, Higgins M. Are cars the new tobacco?  J Public Health (Oxf). 2011 Jun;33(2):160-9.  pdf

 

Freudenberg N. The manufacture of lifestyle: the role of corporations in unhealthy living. J Public Health Policy. 2012;33(2):244-56. Abstract

 

Igumbor EU, Sanders D, Puoane TR, Tsolekile L, Schwarz C, Purdy C, Swart R, Durão S, Hawkes C. “Big food,” the consumer food environment, health, and the policy response in South Africa. PLoS Med. 2012;9(7):e1001253.  pdf

 

Labonté R, Mohindra KS, Lencucha R. Framing international trade and chronic disease. Global Health. 2011 Jul 4;7:21.  pdf

 

Monteiro CA, Cannon G. The impact of transnational “big food” companies on the South: a view from Brazil. PLoS Med. 2012;9(7):e1001252. pdf

 

Moodie R, Stuckler D, Monteiro C, Sheron N, Neal B, Thamarangsi T, Lincoln P, Casswell S; Lancet NCD Action Group. Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries. Lancet. 2013 Feb 23;381(9867):670-9. Abstract

 

Siegel M, Dejong W, Naimi TS, Fortunato EK, Albers AB, Heeren T, Rosenbloom DL, Ross C, Ostroff J, Rodkin S, King C, Borzekowski DL, Rimal RN, Padon AA, Eck RH, Jernigan DH. Brand-specific consumption of alcohol among underage youth in the United States. Alcohol Clin Exp Res. 2013;37(7):1195-203. Abstract

 

Steinman MA, Landefeld CS, Baron RB. Industry support of CME–are we at the tipping point? N Engl J Med. 2012;366(12):1069-71. pdf

 

And for those of you planning to teach on this topic in the Spring 2014 semester, here’s a shameless self-promotion.  My new book Lethal but Legal Corporations, Consumption and Protecting Public Health will be published by Oxford University Press in January 2014.  It’s available for pre-order at Oxford and at Amazon.  More details in future posts on CHW.

Conflicts of Interest in Approvals of Additives to Food Out of Balance

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A recent article in JAMA Internal Medicine concludes that between 1997 and 2012, financial conflicts of interest were ubiquitous in determinations that an additive to food was generally regarded as safe (GRAS). The lack of independent review in GRAS determinations raises concerns about the integrity of the process and whether it ensures the safety of the food supply, particularly in instances where the manufacturer does not notify the Food and Drug Administration of the determination.