My new report, Whitewashed: How Industry and Government Promote Dairy Junk Foods, shines a light on the shifting patterns of consumption away from plain milk toward dairy products laden with sugar, fat, and salt. For example:

• About half of all milk is consumed either as flavored milk, with cereal, or in a drink;
• Nearly half of the milk supply goes to make about 9 billion pounds of cheese and 1.5 billion gallons of frozen desserts–two-thirds of which is ice cream;
• 11 percent of all sugar goes into the production of dairy products.

It’s bad enough for the dairy industry to promote junk food in the name of health, but making matters worse, Uncle Sam is propping up the effort. The federal government mandates the collection of industry fees for “checkoff programs” to promote milk and dairy. Far from being just a privately-funded program, U.S. Department of Agriculture employees attend checkoff meetings, monitor activities, and are responsible for evaluation of the programs. The U.S. Supreme Court has upheld the legality of the checkoff programs as “government speech”, finding: “the message … is controlled by the Federal Government.”

Checkoff money is also only supposed to be used for “generic” marketing activities. However, the program gives a huge boost to leading fast food chains. For example:

• McDonald’s has six dedicated dairy checkoff program employees at its corporate headquarters who work to ensure that dairy plays an important role in McDonald’s product development;
• The dairy checkoff program helped Taco Bell introduce its double steak quesadillas and cheese shreds, which resulted in a four percent increase in the chain’s dairy sales;
• The dairy checkoff program helped Pizza Hut develop a 3-Cheese Stuffed Crust Pizza and the “Summer of Cheese” ad campaign;
• Dominos benefitted from a $35 million partnership with the dairy checkoff program, resulting in the company adding more cheese, with other pizza makers following their lead;
• Domino’s “Smart Slice” program brought the pizza to more than 2,000 schools in 2011, with help from the checkoff.

Speaking of schools, the dairy industry, with a government assist, is heavily promoting chocolate and other sugar milks to schoolchildren, desperate to maintain its presence in a lucrative market with a captive audience. For example:

• USDA’s milk checkoff program promotes “Chocolate Milk Has Muscle” and “Raise Your Hand for Chocolate Milk” campaigns to defend chocolate milk;
• Dean Foods’ TruMoo is a popular brand sold in schools; one serving of TruMoo strawberry milk contains an incredible 21 grams of sugar;
• Milk checkoff educational materials were even used to change the mind of one school official who was planning to remove flavored milk.

Finally, many federal checkoff-funded dairy organizations make dubious health claims to market their dressed up junk foods. Would you believe that:

• “Cheese can fit into almost any eating plan”;
• “Process cheese is made from natural cheese”;
• “Cheese contributes essential nutrients for good health”;
• “Chocolate milk is the perfect balance of vitamins, minerals, carbohydrates and protein—a combination that can’t be found in any other beverage”.

At a time when our nation is suffering from an epidemic of diet-related health problems, we cannot allow the decades of whitewashing by the dairy industry to continue. The assumption that eating dairy is essential to the diet has obstructed our ability to criticize federal government support for unhealthy forms of dairy.

It’s time to stop dancing around the federal checkoff programs by pretending they are privately-funded. As this report demonstrates, federal government administers, oversees, and approves almost every aspect of the dairy checkoff program. These funds are directly used to promote junk foods, which are contributing to the diseases our federal government is allegedly trying to prevent.

Andy Bellatti is a registered dietitian who contributed to the report by calling out the many misleading health claims made by the dairy industry. He says:

In our cultural glorification of dairy, we often forget that many of these products are directly contributing to our current public health epidemic. Even more troubling, due to the dairy industry’s deep pockets and political connections, federal authorities are giving these foods a stamp of approval, rather than raising a nutritional red flag.

Read the executive summary here.

Read the full report here.

Last year in this space I asked if it was time for the Food and Drug Administration to define how food makers can and cannot make “natural” claims on their labels. With Americans looking for healthier options, more food companies are jumping on the natural bandwagon, despite many overly processed products being anything but.

While the FDA continues its hands-off approach on the confusing term, lawyers are filling the gap left by federal regulators. Several lawsuits have been filed challenging food companies for using the natural label, for example, on products containing genetically modified ingredients (aka, GMOs).

In recent months, two cases reaching the settlement stage have important implications for the natural food industry.

In one case, Barbara’s Bakery was sued for making the natural claim on many of a wide array of products containing either GMO ingredients, or artificial or synthetic ingredients, including the company’s cereals, fig bars, cheese puffs, granola bars and cookies.

As part of the settlement, in addition to creating a $4 million fund, Barbara’s agreed to modify its labeling and advertising, and most significantly, to remove GMO ingredients and obtain independent verification from the Non-GMO Project.

In an attempt to rewrite history, about a month after the settlement agreement was announced, Barbara’s put out a press release saying their new GMO-free path was thanks to consumer demand, claiming they “always listened closely to our loyal fans.” Not to mention court orders.

In a similar development, several cases filed against PepsiCo-owned Naked Juice will likely be settled for $9 million. The company has also agreed to stop using the “all-natural” claim and work with a third-party, non-GMO verifier.

That class action took Naked Juice to task for making “all natural” claims despite containing substantial amounts of artificial substances such as synthetic fiber and numerous other chemicals found only in labs, not in nature. (Even FDA says natural claims should not be used on products containing synthetic ingredients.)  Perhaps even more damning, Naked Juice protein products labeled as “non-GMO” actually contained GM soy. (Doesn’t PepsiCo have a legal department?)

As of this writing, the settlement in both cases is still pending court approval.

Will FDA step in?

These cases are significant because while lawsuits over deceptive claims may result in the company changing labels to remove the deception, it’s rare to have a food company take the additional and more expensive step of reformulating its products. No doubt increasing concerns over GMOs and consumer demand for GMO-free food is another driving factor, demonstrating the power of legal action combined with education and advocacy.

Meanwhile, numerous other natural claims lawsuits are making their way through the court system. In two such cases, the judge has placed the matter on hold pending any FDA action to define natural. The legal concept here is called “primary jurisdiction,” the theory being that FDA, not the court, is the expert on what natural means and should decide. Only one problem: FDA isn’t going to do that anytime soon, if ever.

Steve Gardner, litigation director for Center for Science in the Public Interest, which has sued several food companies, was quoted in the media that court deference to FDA makes sense only “when there is a chance in hell of FDA acting” but here the agency “has repeatedly confirmed” there is no such chance.

Fortunately, not all judges are falling for this ruse. In a case against Smucker for its Crisco product labeled “all natural” despite containing GMO ingredients, the judge rejected Smucker’s request to defer to FDA, noting how the agency “has declined” to define natural “because of its limited resources” and “other priorities.”

Processed food companies should take note of this trend in the courts: Judges are showing hostility toward bogus natural claims and offending companies are realizing that settling is the best way to go. And even when courts put a case on hold waiting for FDA to act, the litigation is just temporarily postponed.

Why take a chance on becoming the next target of a class action? The negative publicity alone isn’t worth the headache, not to mention the legal fees and real chance of losing or being forced into an expensive settlement. Why not just play it safe and stop making natural claims altogether? Also, it’s the right thing to do.

In all fairness, I think it’s a good thing for defense lawyers to share information and best practices about how food companies can and should comply with the law. Adhering to laws and regulations, as feeble as those rules can be, is a good thing and corporations should strive for it. And I am happy to report that’s what most of this meeting was about: to help food companies (in legalese) “mitigate risk,” as opposed to how to get away with skirting the law.

For example, in a session called “Minimizing the Risk of Deceptive Health Claims Post-POM Wonderful” an attorney with the Federal Trade Commission tried to explain what sort of “substantiation” a food company would need to back up any health claims. (POM Wonderful has been embroiled in quite a fight with the feds over its exaggerated claims.)

A similar presentation was called “How to Use Clinical Studies, Data, and Results without Violating FTC Regulations: A Case Study on Omega-3 Claims.” You see, the feds are OK with making certain types of health claims on food products as long as you can back it up with actual science. Just how strong the research needs to be however, was never made very clear. When I tried to ask one government lawyer, What if the science is funded by industry?, the answer was also unsatisfactory: that might be considered as a factor but not a disqualifying one. Generally the feds like to consider these matters on a case by case basis.

The most unbalanced and frustrating panel was called: “Maintaining the Delicate Balance of Marketing to Children‚ Obesity and the Integrity of your Product.” The main speaker was Elaine Kolish, director of the Children’s Food & Beverage Advertising Initiative, a fancy name for the food industry’s sad excuse for voluntary self-regulation. Numerous groups have criticized CFBAI for its ridiculously generous nutrition guidelines and self-serving loopholes.

But to hear Kolish tell it, CFBAI was the best way to protect children, far better than government regulation. She claimed that all by itself, industry “has created robust rules, and changed them twice” and that “in a five-year period, self-regulation has done more than government.” Of course it has, because that same industry lobbied like hell to stop government from doing its job in setting better guidelines. Throughout her presentation, which at times bordered on shrill, Kolish showed her utter disdain for the feds, along with numerous public interest groups. She disparaged Center for Science in the Public Interest, saying they engaged in “litigation by press release.” She also attacked other groups including the Campaign for a Commercial-Free Childhood and Berkeley Media Studies Group for daring to complain about food industry exploitation of children.

Now reasonable people can disagree on this controversial topic and I realize I was attending an industry-friendly meeting, but Kolish said several things that should not have gone unchallenged. For example, she misrepresented the current science on how marketing to children is deceptive. If someone from the other side had been on that panel, the audience would have heard a far more balanced take. It was in fact a disservice to the industry representatives in the room to downplay the issue. I had this feeling at numerous other times during the event: that including a public interest perspective would have allowed for a more nuanced and stimulating discussion.

Another notable presentation was called “Update on State Food Labeling Laws: How GMO Labeling Initiatives Impact your Business Strategies.” Obviously industry is very concerned about the growing movement to label genetically-engineered foods. This panel was a good overview of current efforts, and mentioned several advocacy groups, including Food Democracy Now! for its role in the state bills. (Unlike Ms. Kolish, the speakers on this panel  – both with the sponsoring law firm – were factual and respectful.) It was interesting, though not surprising, to see how much industry lawyers were staying on top of advocacy efforts.

Finally, as would be expected, there were several presentations on the current threat of private class action litigation over deceptive food marketing claims, some offering tips on how to defend against such lawsuits. (I recently wrote about this trend in class actions.) The “natural” cases were clearly a huge concern. One attorney in the audience suggested food makers stop using natural labeling at all, which was very sound advice and refreshing to hear. Also discussed was emerging case law in which judges are deferring to FDA ruling on whether or not “natural” labels should be allowed on products containing genetically-engineered ingredients. But no one in the room expected FDA to do so anytime soon.

Over the three-day event, I had several constructive conversations with food industry attorneys who really don’t want their clients to get into legal trouble. But it was also clear that their good advice can sometimes come into conflict with the marketing department. So next time you see a food product making a deceptive claim, it’s probably either because the company received bad legal advice, or the marketers overruled the lawyers.

Nutrition Facts for Land O Lakes “Fresh Buttery Taste” Spread

Serving Size: 1 tbsp (14g)

Amount Per Serving

Calories 70
Calories from Fat 70

Total Fat 8 g 12%

Saturated Fat 2 g 10%

Trans Fat 0 g

Ingredients: Liquid Soybean Oil, Water, Partially Hydrogenated Soybean Oil, Buttermilk*, Hydrogenated Soybean Oil, Contains Less Than 2% of Salt, Hydrogenated Cottonseed Oil, Cream*, Distilled Monoglycerides, Soy Lecithin, Potassium Sorbate (Preservative), Lactic Acid, Natural and Artificial Flavor, Vitamin A Palmitate, Beta Carotene (Color).

Short Answer: Because FDA says it’s OK to lie to you.

Labeling is one of the more complex areas of food law, full of statutes, regulations, exemptions, and exceptions. In 1990, Congress updated food labeling law with the Nutrition Labeling and Education Act, which gave the Food and Drug Administration authority to require specific types of nutrition labels on most food products. The handy Nutrition Facts panel you see on foods today displaying calorie, carbohydrate, fat, protein, and other nutrient amounts is the result of FDA implementing this law.

Originally, trans fats were not on the list of nutrients required to be labeled. In 2003, prompted by health concerns over the increased risk of coronary heart disease linked to lab-created partially hydrogenated oils, FDA issued a rule adding trans fats to the list of items required on food labels. (The rule was finalized in 2006.)

But, here’s where thing get a little tricky. FDA regulations also contain an exception for what the agency calls “insignificant amounts” that are “dietetically trivial and physiologically inconsequential.” This allows manufacturers to fudge the numbers. That’s why food manufacturers will often display “0 grams” when the food contains an “insignificant amount” of that ingredient. Exactly what FDA deems “insignificant” varies. (Here’s a chart in an FDA guidance document that breaks it down.)

Specifically, for all fats (trans, saturated, and unsaturated), the threshold is 0.5 grams per serving. So, if a food contains less than half a gram of trans fat per serving, the nutrition label will almost always say “0 grams” next to trans fat. This is how we get inconsistent food label that lists “0 grams” trans fat on the Nutrition Facts panel (or even worse, call-outs on the front of the package like on this fake butter from Land O Lakes) when the product is actually made with partially hydrogenated oils, which contain trans fat.

I asked registered dietitian Andy Bellatti if this is really such a big deal. Yes, he says, because it’s easy to “rack up one or two grams of trans fat in a day in a few servings. It may not sound like much, but research shows that tiny amounts inflict severe cardiovascular damage.” Yikes. Thanks a lot, FDA.

So don’t fall for the “0 grams trans fat” trick. Just skip the front-of-the-box hype and check the nutrition label plus the ingredient list on the back to see what’s really lurking inside. And always try to minimize your intake of processed food.

Thanks to Neil Thapar for research and drafting assistance for Ask a Food Lawyer. Got a question? Email me: Michele@EatDrinkPolitics.com. (Sorry, but I can’t answer all questions.)

1) Janelle Orsi, executive director of the Sustainable Economies Law Center, which hosts regular “legal cafes” to offer free advice for small farmers, food entrepreneurs, and others creating positive alternatives. While their work is localized to California, it’s a wonderful model to follow. (See her book, Practicing Law in the Sharing Economy.) @JanelleOrsi

2) Harvard Food Law and Policy Clinic: On the other side of the country, a similar project is happening at a little place called Harvard; the clinic offers free legal advice to individuals as well as communities seeking to make policy change.

3) Jason Foscolo is a food law attorney based in New York, providing “legal counsel for farmers and food entrepreneurs.” Jason is on the cutting edge of a burgeoning legal specialty. His blog, co-authored by other up-and-coming food lawyers, is always informative and provocative. @FoodLawAttorney

4) Jean Terranova, based in the Boston area, is also forging new ground bringing attention to the practice of food law while working with the Harvard clinic. Be sure to follow Jean’s list of food lawyers on Twitter, since I can’t even fit them all here. @JeanTerranova

5) Fare Grange Law is providing legal services in Minneapolis to “sustainable, local, non-GMO and organic farm businesses, independent food entrepreneurs, and good food advocacy groups.” @FareGrangeLaw.

6) Ted Mermin is executive director of an innovative firm called Public Good Law Center in Berkeley. Ted is my go-to expert on First Amendment law and advertising. Last year, he co-authored an important article on regulating junk food marketing to children.

7) Reese Richman is a small but powerful law firm based in New York City that is suing the likes of Coca-Cola, General Mills, and PepsiCo’s Frito-Lay over deceptive marketing practices. As I wrote about recently, many of these cases are gaining momentum. Stay tuned for more cutting-edge litigation holding industry accountable.

8) George Kimbrell is senior attorney at Center for Food Safety, one of very few advocacy groups that uses litigation as a tool to improve the food system. Kimbrell’s legal team recently won an important victory when a federal court ordered the Food and Drug Administration to release delayed food safety regulations as required by statute. @TrueFoodNow

9) Attorneys General and City Attorneys: An often overlooked but powerful tool is that of state attorneys general and city attorney offices, both of which can file consumer deception cases against companies engaging in misleading advertising. For example, the City of San Francisco is suing Monster for marketing energy drinks to kids, while several attorney general offices (including New York) are also investigating this issue.

10) Baylen Linnekin, executive director of Keep Food Legal. While I disagree with most of his agenda, I respect Baylen’s philosophy, which is refreshingly not motivated by economic self-interest. We do agree on supporting small-scale and local food alternatives such as food trucks. @BaylenLinnekin

The funny thing is, the official evaluation, funded by the Robert Wood Johnson Foundation, is not actually out yet, and won’t be until sometime this fall. Instead of waiting for what could be a negative, and certainly more scientific take, industry instead jumped the gun. The alleged data to back up its claims is contained in a vague document, posted here under the heading of “Preliminary Report,” even though industry is not even conducting the actual analysis. Instead, that effort is being done independently by Barry Popkin, a researcher at University of North Carolina at Chapel Hill, who confirmed with me that his results won’t be available until the fall.

Meantime, what to make of this industry spin? I asked Bruce Bradley, a former food industry executive turned blogger and author. He was skeptical, to put it mildly. Here are his thoughts about industry’s claims of calorie reduction:

First off, measuring something like this at such a high level is recipe for bias. There are just so many ways to manipulate the data to say what you want. Then when you consider who is issuing the report (HWCF) and their self-interest in appearing as responsible, I am very suspicious.

One big question I have about the data is the economic times we live in. Pre-recession habits are reflected by 2007 data. Certainly lots of families have had to cut back their food expenditures with the harder times of 2012. Again, this is certainly convenient for the sake of HCWF’s calculation. One big caveat to this is that while harder times may have required people to cut down their grocery expenditures, it also required them to cut down their “eating out” spending and make more meals at home. I don’t know restaurant trend data as well as grocery data, but I’m guessing that given how this recession has hit lower/middle income households harder than upper middle/upper income households, the impact of restaurant/foodservice consumption trends is somewhat muted, especially since this data is for 2007 and 2012.

Another big question is how Walmart was accounted for in the data. Since about 2001 Walmart refused to release any sales data. They changed that policy in 2012 and again started to share their sales information going back three years (to 2008) [Source: MediaPost Publications Nielsen Adds Walmart Data To Sales Product 03/15/2012]. Since this report goes back to 2007 what I’m imagining HWCF had to do to equalize this number was to remove Walmart from the calculation since no data was available for Walmart from that period. This would be a very convenient “have-to” for HWCF since sales volume continues to shift from more traditional grocery formats to Walmart.

Another trend that could distort this data is the increased consumption of private label foods. Since the economic downturn, private label has grown significantly. Although private label has made inroads into healthier categories, it still packs a bigger punch in traditional, high fat/salt/sugar categories. I’m guessing growth in private label is yet another way that disproportionately took high calorie volume away, hence making the HWCF’s number look better.

Finally, the beverage category is for sure one that is “helping” HWCF’s numbers. Lower/no calorie drinks is a huge trend, but it’s a crime that low/no calorie beverages are considered “healthy.”

Let’s see if the analysis due out this fall paints a more accurate picture.

With the federal government all but ignoring the numerous ways food companies deceive shoppers with dubious health claims, the courts are becoming a more popular alternative for action.

As you may recall from civics class, we have three branches of government, and when two of them – the executive and the legislative – have essentially checked out, that leaves only one place to turn for a legal remedy: the judiciary. Despite years of brainwashing by the right wing about the evils of trial lawyers, litigation is a critical and yet underutilized tool for obtaining justice under a broken and compromised political system.

Under both federal and state law, it’s illegal to engage in deceptive marketing. This is a broad concept that applies to any entity that advertises. The idea is that consumers should not be swindled into buying a product; they deserve the straight facts to make informed purchasing decisions. And while such laws do help deter shady activities, deceptive marketing statutes get violated all the time, mostly due to lack of enforcement.

It may be unsettling to realize that on grocery store shelves right now are likely hundreds of food products that contain illegal deceptive claims. While the federal government does have specific definitions for some phrases such as “low fat” or “low salt,” otherwise almost anything goes on the front of a food package because the feds have turned a blind eye. Without proper government oversight, the only recourse is for private law firms to set these companies straight.

Here are some examples of deceptive food marketing cases currently gaining traction. (Full disclosure, I am a consultant for Reese Richman, one of the law firms bringing such cases.)

Natural Claims

The Food and Drug Administration is unwilling to provide useful guidance on the definition of “natural,” resulting in ubiquitous use of the word by marketers, no matter how nutritionally deficient the product. Factor in the growing interest in organic along with consumer confusion over that label’s meaning and you have a marketing bonanza in “natural” food.

Some lawsuits are being filed over products sporting the natural label that contain genetically-engineered ingredients. Two such examples are ConAgra’s line of Wesson cooking oils and Frito-Lay’s snack products. To back up their claims, lawyers are even relying on Monsanto’s own definition of genetically-modified organisms: “Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”

In a positive development in the ConAgra case last November, the judge found that that the plaintiffs adequately described “why genetically-modified products cannot be considered natural” and “they understood that the phrase ‘100% Natural’ meant that Wesson Oil was not made from genetically modified organisms, and that they purchased the product based on this false understanding.” This is a huge step forward for these types of cases.

In a similar action against Frito-Lay, the court recently made a preliminary ruling in favor of the plaintiff allowing the case to move forward. In its defense, Frito-Lay argued that no reasonable consumer would expect the phrase “all natural” to actually refer to all of the ingredients in the product. The court disagreed, since a reasonable consumer could interpret “all natural” to mean, um, all natural.

Such cases have tremendous potential to rock the processed food world, given how many products containing GMO ingredients are currently touting the meaningless natural label. Moreover, with increasing calls for mandatory GMO labeling at both the federal and state levels, along with voluntary retailer actions from the likes of Whole Foods, this issue is not going away anytime soon.

Other cases challenging the natural label are over products containing ingredients that are obviously not natural. One such lawsuit is against the Kellogg-owned Kashi GoLean brand of products. From the complaint:

For example, Kashi’s ‘All Natural’ GoLean Shakes are composed almost entirely of synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, thiamin hydrochloride, potassium iodide, and other substances that have been declared to be synthetic substances by federal regulations.

Not sounding very natural. The judge has allowed this case to move forward.

Products Aimed at Children

Marketing to children qualifies as illegal deception because a child cannot understand how marketing works. What could be more deceptive than taking advantage of a child’s emotional vulnerability? Unfortunately, we have zero enforcement of this obvious legal violation due to weak-kneed government officials, once again leaving it up to the court system.

To date only one lawsuit has been filed directly challenging marketing to children— against McDonald’s over Happy Meals—an obvious target. The case was brought by the Center for Science in the Public Interest, the only nutrition advocacy group with a litigation department. (This helps explain why this tool is so underutilized.) Unfortunately, the judge dismissed the case last year. While suing over marketing to children does face certain procedural challenges, with the right venue and strategy, I am hopeful we can gain traction in time.

In lieu of directly challenging food makers for targeting children, another strategy emerging is suing over child-oriented products that make deceptive health claims. One such example is the General Mills’ product, Fruit Roll-Ups.

Also filed by Center for Science in the Public Interest, this case took the company to task for its claims their products were “fruit flavored,” “naturally flavored,” a “good source of vitamin C,” and low in calories, fat, and gluten. (Seriously, low in gluten?) In December, this case was settled when General Mills agreed to stop using the most egregious practices; for example, no longer putting images of strawberries on a product that contained none. Duh.

Chutzpah Claims

Taking the prize in the chutzpah line of cases is Coca-Cola’s vitaminwater brand. This lawsuit alleges deceptive marketing for positioning the product as a health tonic, when some varieties contain a whopping 33 grams of sugar (in 20 ounces), among other unhealthful ingredients such as dyes. That case has also been allowed to move forward, despite Coca-Cola’s desperate argument that “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage,’ a claim that was skillfully ripped apart by John Robbins and as well as hilariously pilloried by Stephen Colbert.

Another product deserving a chutzpah award is Chobani yogurt, a brand that has taken on near-iconic status in the most health-washed category of all. Chobani is being sued over its “all-natural” claim (among other statutory violations) because the label lists “evaporated cane juice,” which is just a fancy way of saying sugar. This, despite the FDA’s explicit warning to food makers not to use the phrase because the accurate description of the ingredient is actually “dried cane syrup.” But juice sounds so much more “natural” than syrup.

In a recent Twitter exchange, I had some fun with the poor social media person at Chobani. Despite the lawsuit, the company continues to use the phrase “evaporate cane juice.” When I asked why not just call it sugar, the reply was: “It’s specifically the form we use. Not all sugars are created equal.” But I got no response when I next tried to ask exactly how their sweetener was any different from sugar. (Maybe the lawyers got hold of the Twitter account.)

Rounding out the chutzpah category is Nutella, which got in legal trouble for advertising its dessert-like product as healthy breakfast. Although the case was settled for $3 million, it was also the subject of some ridicule by those who thought it was obvious that Nutella is a treat. But that critique misses the point: Under the law, companies are not allowed to market its junk food products as healthful. In a seminal case against Gerber for deceptively marketing children’s “fruit snacks,” the company tried to use the Nutrition Facts label as a defense, since the ingredients and amount of sugar are clearly listed there. But the judge explained that information being available elsewhere (like on the back of the package) does not make it OK for a company to deceive consumers in other ways, such as on the front of the package or in ads.

Litigation Challenges

While litigation represents an important tool for holding food companies responsible, there are also numerous challenges. For example, the strategy requires targeting one product or line of products at a time, which is not the most efficient approach for sweeping change. However, strategic selection of the worst (and largest) offenders can send a strong message to an entire industry.

Another limitation is how long the court process can take: often several years just to get through the preliminary phase. And, corporate defense lawyers are skillful at dragging out the process in hopes the plaintiffs will give up. Finally, the results are sometimes less than ideal. Most cases end in settlement because they are too costly to bring to trial, and negotiation necessitates compromise.

But given the widespread health-washing by a desperate food industry at a time when the American public is starting to realize that actual fruit may be a healthier option than Fruit Loops, litigation is a critical, if imperfect, tool.

Why Get Involved in Litigation?

Advocacy groups engaged in the good food movement should take notice. While major foundations may be too skittish to fund litigation, organizations can still team up with private lawyers to bring more of these sorts of cases. Nonprofits can play different roles such as: 1) offering specific expertise as consultants; 2) asking their members to serve as plaintiffs; 3) being a named plaintiff themselves in certain types of actions; or 4) serving as co-counsel.

Perhaps the best motivator for a nonprofit group to get involved in litigation is the potential for being awarded part of a “cy pres” fund: money set aside in a settlement for nonprofits doing good work that is sufficiently related to the case. Several good projects got their start with cy pres money, including a California-based group called CANFIT, which works with adolescents around health and nutrition. That settlement fund was from a deceptive marketing case against Kraft Foods, and some 20 years later the group is still going strong.

We have our work cut out for us with so much deception in the marketplace, but with better coordination and teamwork, we can make real progress through the legal system. It’s a shame that we have to turn to the courts at all, but that’s the political reality right now. Someone has to hold the food industry accountable.

New York City
March 20: CUNY School of Public Health at Hunter College
• Force Fed: How Food Industry Disinformation Undermines Public Health
For details, see PDF flyer.

Boston
March 21-23
Consuming Kids Summit: Reclaiming Childhood from Corporate Marketers
• Is This Even Legal? Demystifying the Laws on Marketing to Children (panel)
• Slowing Down the Clown: Policy Tools to Protect Children from Fast Food in Your Area (workshop)

Southern California
April 9: Urban and Environmental Policy Institute, Occidental College, Los Angeles
• Force Fed: Deconstructing Food Industry Lies
Class begins at 1:30pm; Room: Lower Herrick.

June 18-20: 7^th Biennial Childhood Obesity Conference, Long Beach
• Marketing healthy foods to children: Do the ends justify the means? (panel discussion)

I received the following email from registered dietitian Tara Marino who says she was recently “deleted” from the Academy of Nutrition and Dietetics LinkedIn group after expressing support for my report on the organization’s questionable corporate sponsors. (See previous post on a similar silencing attempt.)

Another member of the AND LinkedIn group had posted the Forbes article discussing your report and I commented saying things such as, I was happy others were speaking out and how upset I was about the choice of corporate sponsors. I also commented about my 2012 correspondence with the California Dietetic Association’s President, Nicole Ring and how she sounded like a McDonald’s spokesperson rather than a dietitian. I also said, I don’t know what I could do at this point aside from withdrawing my membership from the AND, which might have been what prompted them to delete me. Regardless, I am still a member of AND and to be deleted from the LinkedIn group for voicing my opinion was quite disturbing. I have tried to message the AND LinkedIn group manager, Lauren Fox, but I’m not able to email others unless I upgrade to a paid account.  

And here is the email exchange that she references:

(Sent by Tara 3/23/2012 to ca_dietetic@dietitian.org)
To Whom it May Concern,

I was all set to attend this conference when I realized lunch is served by McDonald’s. Seriously? What is this about? As a registered dietitian that encourages people every day to make healthy food choices, avoid fast food and improve their eating habits, how big of a hypocrite does that make us to be served McDonald’s at our conference? 

I’m also disturbed by certain talks being sponsored by the beef council and dairy council. What does that mean? How is a talk on Meatless Monday sponsored by the beef council? My work was willing to pay for my flight, hotel and registration but I cannot bring myself to attend a meeting that can’t even offer a more nutritious lunch to a bunch of health professionals. 

I am saddened and disheartened by the influence of these powerful organizations permeating the CDA and I wish that I was able to attend a conference I could feel good about being apart of. We live in California, surely there are better options for lunch sponsors and means to put on a conference without financial support from organizations that support exactly what we are trying to guide people away from.

Sincerely,

Tara Marino, RD

(Response received 4/19/2012)
Hello Ms. Marino,

I appreciate that you’ve taken the time to reach out to us and I would like to address your concerns. When it comes to sponsorships we look to organizations and associations who support the mission and vision of the California Dietetic Association, which includes a variety of non-profits and corporations. The purpose for Annual Meeting is to provide educational opportunities for our members to be able to stay abreast with all that is going on related to our field of expertise.

With regards to your questions regarding McDonald’s – as dietitians, we are trained to educate our patients/clients on moderation, balance and variety as a means to develop healthy eating habits. With that said, we typically don’t label foods as bad or good – but rather better-for-you choices, or those you should limit. Many people consider fast food “bad” because in the past, these types of restaurants had limited selections of better-for-you choices. Times have changed and many of these restaurants (especially McDonald’s) now offer a plethora of salads, fruits and even whole grains on the menu. How can we say that fast food is bad when these options are certainly available? If you have a client who is determined to go to McDonald’s everyday for lunch wouldn’t you prefer that they are informed of these better choices?

Additionally, McDonald’s is leading their industry when it comes to offering better-for-you options as other chains are starting to follow in providing more salads, fruits and whole grains. They also have an entire team of dietitians on staff who are helping the company lead the charge in offering these better items. I think that is something we as dietitians should be applauding. Further, why should fast food be considered bad? I have worked with all types of restaurants for over 8 years conducting nutrition analysis for menu items and I can attest that there are many other types of establishments (from family restaurants all the way to high-end) who are inferior to McDonald’s and “fast food” when it comes to offering better-for-you options.

In terms of our lunch offering, yes, we allow McDonald’s to sponsor the lunch because we want to be able to inform attendees of the healthier choices that are available and allow dietitians the opportunity to taste first-hand what these better-for-you choices are. And, having a sponsor allows us to keep the attendance fees lower. During these tough economic times, it is difficult for us to generate interest in sponsors for our lunch, but McDonald’s was able to do so.

I am sorry that you have made the decision not to attend based on the proposed agenda. I think if you are able to come, you may be surprised with all that we have to offer.

Again, I do appreciate your feedback and I would encourage you volunteer with us next year as we plan for the 2013 Annual Meeting.

Thank you,

Nicole Quartuccio Ring, RD
President, 2011 – 2012
California Dietetic Association
president@dietitian.org

(Sent from Tara 4/23/2012)
Dear Ms. Ring,

Thank you for your reply and the time you’ve taken to address my concerns. I truly wish your words justified the CDA choosing McDonald’s as a sponsor for the 2012 conference. I expected this would be the response I would get—that McDonald’s now offers healthy options; that we should educate people on low-cost, healthy choices, etc. However, the reality is that McDonald’s is the only one benefiting from this opportunity (aside from the monetary support the CDA is receiving). The impact of their sponsorship is that registered dietitians, such as myself, who are attending the conference are put in the position of endorsing McDonald’s. This not only flies in the face of the education we offer our clients, but also severely damages the integrity of the California Dietetics Association and the Academy of Nutrition and Dietetics.

I have worked in community nutrition, among low-income people of all ages, for over 10 years. I have seen first-hand the impact that fast food restaurants have on these populations. More often than not, low-income neighborhoods are full of fast food restaurants, with no grocery store in sight. Yes, we’d like to think that now that McDonald’s has healthy options that people will choose the healthy salads, but oftentimes those salads are more expensive, and it’s not realistic to assume that people will choose the healthier option just because it’s provided. Do you believe a person with limited income and health education (especially children and young adults) is going to walk into a McDonald’s and choose a salad and apple slices while being embraced with the scent of french fries and burgers? McDonald’s is not a health leader of any sort, and they have only begun to offer “healthy options” as an effort to deflect the negative press they continually receive as a result of the role they’ve played in contributing to our population’s obesity epidemic. McDonald’s has been a leader in getting Americans to eat as much high-fructose corn syrup, fat, and salt as they possibly can. I could quote one article after another citing the impact fast food restaurants have on obesity rates, but I’m sure you, as well as our fellow dietitians, are aware of these facts. 

From your response, it sounds like you’re advocating more for McDonald’s rather than the CDA. Good for McDonald’s that they are striving to offer more “better for you” options, but it is not our place, as advocates for our clients and patients, to promote them as a healthy choice.

I agree with you about moderation, but serving McDonald’s at a conference for registered dietitians is making a mockery of our profession. We are continually striving to be taken more seriously by the medical community and this is exactly the kind of decision-making that causes us to take steps backward. Each and every person I’ve mentioned this to, whether in the nutrition profession or not, has seen the absurdity of this choice of sponsorship. As one person said, it’s like having Marlboro sponsor an American Heart Association conference. I think that’s a pretty fair comparison. 

I would love to attend next year’s conference should there be a more responsible choice of sponsors. I’d be happy to offer my time to help acquire more suitable sponsors as well. 

Sincerely,

Tara Marino, RD

(Response received 4/23/2012)
Hi Tara,

I hope it’s ok that I use your first name. We are having an Executive Board meeting this Wednesday (before the Annual Meeting) and I will be sharing your points of view with the board as we will be evaluating our sponsorship policies during the meeting. So, thank you for sending this second email.

We would love for you to participate in the planning process next year, and I will pass along your contact info to the committee so they can contact you.

Respectfully, 

Nicole Quartuccio Ring, RD
President, 2011 – 2012
California Dietetic Association
www.dietitian.org 
President@dietitian.org

(Sent by Tara 4/24/2012)
Thank you, Nicole. I appreciate you passing my feedback on to the board.