Junk Food And Free Speech

In April this year, something remarkable happened: Several large governmental agencies got together and proposed a set of voluntary marketing guidelines food manufacturers should follow to curb childhood obesity. They say it threatens their right of free speech.

FDA + USDA + FTC + CDC = IWG

That the Federal Drug Administration, U.S. Department of Agriculture, Federal Trade Commission and the Centers for Disease Control made a joint effort and formed the Interagency Working Group (IWG) to formulate these guidelines is by itself remarkable, given the friction that usually exists between large governmental bodies.

Even more remarkable is that what they came up with to fight childhood obesity makes quite a bit of sense. In essence, it comes down to

• limiting the amounts of fat, sodium and simple carbohydrates in foods marketed to children
• setting minimum values for healthy nutrients like whole grains, fruits, vegetables etc. they have to contain

The draft version of the paper (PDF) also shows that quite a bit of care was taken to back these recommendations with a host of solid science.

A Threat To Free Speech?

Yet when it became public, the food industry was up in arms.

A loss of jobs was the least they claimed these guidelines would bring on – they actually went as far as saying that it threatens the food industry’s right of free speech. In a press release from July, food industry lobbyist group Washington Legal Foundation (WLF) writes (PDF):

In formal comments filed with the Commission, WLF argued that the FTC needs to understand that when it issues “guidance” to regulated industries regarding what they should be saying in their food advertising, in no meaningful sense of the word can its speech restrictions be deemed “voluntary.” WLF noted that the FTC has made clear that it expects the Guidance to result in significant changes in the content of food advertising. Under those circumstances, the Guidance quite clearly burdens speech and thus is subject to First Amendment limitations, WLF argued.

But, although the WLF tries to blur it, there is an important difference between voluntary guidelines and a law that is to be passed: the former you are free to follow if you choose to, adherence to the latter is mandatory. Which is also the conclusion a group of 36 highly respectable law professors came to in an open letter to the IWG (PDF):

The Free Speech Clause applies only to government mandates restricting or compelling private speech. The draft nutrition principles, which are designed “to guide industry self-regulatory efforts,” do not restrain or compel anyone’s speech. They are not, in fact, government regulation at all. Instead, they are the speech of the government itself.

The U.S. Government Admits Defeat

So all is well? No, the lobbying blitz that went on ever since April, ensured that the US government finally gave in. Never underestimate the power of a good lobbying effort – or how much legislation is affected by it.

An example for a food that might not qualify for the proposed guidelines

In that light it is interesting to note that the IWG admitted defeat in a response to an inquiry from  House of Representatives member Fred Upton. Because coincidentally Upton had some questionable involvement with campaign financing handouts from the oil industry, and the scale of that operation may shine a general light on how far various industries will go in their lobbying efforts.

In the current case we even have a member of the food industry admitting to these efforts. Tom Forsythe, Vice President, Communications, General Mills, responded with the following, when he received an inquiry from one of Marion Nestle’s readers:

Your email notes that we have lobbied against the Interagency Working Group (IWG) proposal. That is correct. We have serious concerns about the IWG proposal.

The Food Industry Is Scared Of You

What is the food industry afraid of, to go through efforts these massive? Guidelines it isn’t even required to follow? Highly unlikely.

In my opinion it’s public pressure – as soon as some companies respect these guidelines, they can become a very effective marketing tool, potentially giving new, smaller and more quality-minded players more market leverage. The behemoths ignoring the guidelines could stand out negatively.

It therefore is time for you to take action. Let the food industry know that this won’t do. Getting your concerns voiced to the right people is just a click away.

Pictures courtesy of Herry Lawford and Michele Tribe.