Category Archives: Food & Beverage

Holding Food Companies Responsible for Unhealthy Food Marketing to Children: Can International Human Rights Instruments Provide a New Approach?

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Public health advocates argue that unhealthy food marketing to children infringes children’s rights, given its link to obesity, and that states have an obligation under the UN Convention on the Rights of the Child (‘UNCRC’) to protect children from such marketing. This article explains how international human rights concepts could be used to impose obligations directly on companies to modify their practices to protect children from unhealthy food marketing. We draw on the global governance framework that creates human rights obligations for businesses, and evaluate voluntary codes and initiatives on responsible marketing to children in Australia, to see whether they satisfy the obligations imposed under this framework and the UNCRC. Finding significant limitations in these measures, we set out recommendations for how the food industry could take an approach to food marketing that places children’s best interests as a primary consideration.

Citation: Handsley E, Reeve B. Holding Food Companies Responsible for Unhealthy Food Marketing to Children: Can International Human Rights Instruments Provide a New Approach?  University of New South Wales Law Journal, 2018 (41)2: 1-41.

90% of calories consumed by U.S. residents come from the commercial food sector

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Source:  USDA, 2018 from 2012-13 data.

This chart recently released by the USDA’s Economic Research Service shows that more than 90 percent of the calories consumed by U.S. residents come from the commercial food sector: supermarkets and other food stores, restaurants and other food service outlets.  Fewer than 10 percent of calories come from those sectors of the food system controlled by the public (e.g., school food), individuals or nonprofit organizations.  Since the composition of commercial sector food is highly controlled by giant food corporations, these products are more likely to be the high in fat, sugar and salt. The global food system is built on the more profitable highly processed products that are easier to store, ship and market, even though they are the primary causes of the global epidemics of diet-related diseases.

Nutrition and public health researchers and food advocates should be asking: what would it take to increase the less than 10 percent of calories that comes from sources other than Big Food to 15 or 20 percent?  And how can the non-commercial food sector—food systems controlled by public and civil society groups– serve as both a healthier alternative to and a competitive pressure on transnational corporate food producers?

In NAFTA Talks, U.S. Tries to Limit Junk Food Warning Labels

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Source: OECD Obesity Update 2017

Urged on by big American food and soft-drink companies, reports the New York Times,  the Trump administration is using the trade talks with Mexico and Canada to try to limit the ability of the pact’s three members — including the United States — to warn consumers about the dangers of junk food, according to confidential documents outlining the American position.

The Mexican government support for such restrictions “is one of the most invasive forms of industrial interference we have seen,” Alejandro Calvillo, the founder of El Poder del Consumidor, or Consumer Power, a health advocacy group in Mexico told the New York Times. Heading off pressure for more explicit warnings through the NAFTA negotiation is especially appealing to the food and beverage industry, writes the Times, because it could help limit domestic regulation in the United States as well as avert a broad global move to adopt mandatory health-labeling standards.  “It kind of kills a law before it can be written,” said Lora Verheecke, a researcher at the Corporate Europe Observatory, a group that tracks lobbying efforts. “And once you put it in one trade agreement, it can become the precedent for all future deals with future countries.”

Sustain, an alliance of advocates in the United Kingdom working for better food and agriculture policies and practices, summarizes some of the ‘”barriers to trade” that a 2017 report by the  US Office of the Trade Representative identified:

  • Additional nutritional labelling such as traffic light labels in the UK and Ireland. The US is arguing that these initiatives must remain voluntary.
  • South Africa’s plans to introduce a sugary drinks tax in 2016. The US raised concerns that the tax would effectively discriminate against sugary drinks. The move jeopardizes $5m of US sugary beverage exports
  • Proposals by six Gulf states to regulate energy drinks, including introducing labelling statements about recommended consumption. (One estimate puts this market at $2bn.)
  • Efforts by Chile to clearly label products high in sugar, salt and saturated fat and restrict junk food marketing on packaging to children. The US has referred the Chileans to the WTO saying delays and repackaging has cost the US firms ‘millions of dollars’ in lost sales
  • A food act in Peru introducing mandatory front of pack warnings for pre-packaged foods high in sugar, salt and fat and restrictions on junk food advertising to children and young people
  • Indonesia’s attempts to introduce nutritional labelling for pre-packaged and fast food along with and regulations to limit advertising and health claims aimed at children.

Complexity and conflicts of interest statements: The Case of Coca Cola

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Statements on conflicts of interest provide important information for readers of scientific papers, write David Stuckler, Gary Ruskin and Martin McKee in the Journal of Public Health Policy in a case study of emails exchanged between Coca-Cola and the principal investigators of the International Study of Childhood Obesity, Lifestyle and the Environment. There is now compelling evidence from several fields that papers reporting funding from organizations that have an interest in the results often generate different findings from those that do not report such funding. The authors describe the findings of an analysis of correspondence between representatives of a major soft drinks company and scientists researching childhood obesity. Although the studies report no influence by the funder, the correspondence describes detailed exchanges on the study design, presentation of results and acknowledgement of funding. This raises important questions about the meaning of standard statements on conflicts of interest.

Voices from Newtown: Doctors, Lawyers and Gun Makers

Excerpts from Amici Curiae Briefs filed in Newtown parents vs. Bushmaster Firearms

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Advertisement by Bushmaster, the company that made the weapon Adam Lanza used in Newtown, Connecticut. Appeared in Huffington Post on Dec. 17, 2012. Credit.

A lawyer for families who lost loved ones in the 2012 Sandy Hook school shooting told Connecticut’s highest court this week, reports Reuters,  that Remington Outdoor Co, the maker of the AR-15 Bushmaster rifle,  should be held responsible because its military-themed marketing was designed to appeal to young men like killer Adam Lanza. “They knew they were hitting their mark and Lanza was responding to their marketing,” said lawyer Joshua Koskoff. Lanza, 20, used a Remington AR-15 Bushmaster rifle, a semi-automatic civilian version of the U.S. military’s M-16, to kill 20 school children between the ages of 6 and 7, as well as six adult staff members, at Sandy Hook Elementary School in Newtown, Connecticut, on Dec. 14, 2012.   To take CHW readers behind the headlines, we excerpt from three of the requests to appear as amicus curiae that were submitted to the Connecticut Supreme Court earlier this year.

From request to appear as amici curiae by physicians Katie Bakes M.D., William Begg M.D., Barbara Blok M.D., Kathleen Clem M.D., Christopher Colwell M.D., Marie Crandall M.D., Michael Hirsh M.D., Stacy Reynolds M.D., Jeffrey Sankoff M.D., and Comilla Sasson M.D.

Amici curiae are emergency physicians and trauma surgeons. Many have been responsible for the treatment of patients who have been shot or affected by the AR-15 or similar military assault weapons, including at Newtown, Aurora, San Bernardino, and Columbine.  Their brief elaborates on the reasons why the trial court erred in failing to recognize a Connecticut common law cause of action for negligent entrustment against the makers and sellers of the intrinsically dangerous AR-15 when plaintiffs alleged defendants knew or should have known that entrusting the AR-15 to civilians created an unreasonable risk of harm to the public. The trial court’s holding, if upheld, may have very significant consequences.

The right to be free from the violence and carnage of military weapons, and from the fear of such carnage, is central to our society and our way of life. Connecticut recognized this, as a matter of public policy, when it enacted its semiautomatic assault weapons ban. But this right will be continually threatened if the accountability that a common law cause of action provides is not allowed.

From the request to appear as amici curiae by Trinity Church Wall Street, Attorneys Howard Zelbo, Evan Davis and Elizabeth Vicens of Cleary, Gottlieb, Steen & Hamilton.

The operative complaint alleges that each of the defendants was required to take the “most careful precautions” in the conduct of their business of manufacturing, distributing, and selling firearms to consumers. The complaint details the many respects in which the Bushmaster AR-15 is an especially dangerous firearm. It is Trinity’s position that the AR-15 is so dangerous that it should not be sold in the civilian market….

The question thus presented — whether the defendants exercised due care in the context of marketing an especially dangerous weapon — is a question for the finder of fact, here the jury. Notably, knowledge of the absence of precautions need not be actual, it may be constructive, i.e., what the defendants should have known in the exercise of due care. Equally significant, the question of precisely what precautions due care mandates be taken so that an especially dangerous weapon does not fall into incompetent hands also is a question for the jury to decide. In that regard, it is fundamental to the law of torts that the greater the magnitude of the potential harm, the greater the duty of care… Mass slaughter unquestionably ranks at the top of the magnitude of harm spectrum.

In sum, there is a basic question of negligence in this case, and “the trier of fact is, in [Connecticut], given a wide latitude in drawing the inference of negligence.” Unless the Court is willing to hold as a matter of law that sellers of weapons that deliver high-speed death have no duty to take any reasonable precautions to safeguard against those weapons falling into the hands of incompetent and even criminal users, then this case presents the basic, unremarkable jury question of just what due care required.

From the amicus curiae brief of National Shooting Sports Foundation in Support of Defendants-Appellees (Bushmaster Firearms LLC)

These lawsuits have most typically assigned blame to firearm industry members for damages caused when criminals misuse lawfully sold, non-defective firearms. The burden of litigating these lawsuits poses a threat to the hunting and shooting sports industry and to the constitutionally-protected right of access to firearms by law-abiding citizens… The basic tort alleged in this case is negligent entrustment. Contrary to Plaintiffs’ claims, this tort is not predicated on unbounded foreseeability such that the manufacturer of a lawful product may be subject to liability whenever that product goes through a daisy chain of exchanges and ends up in the hands of someone who uses it in a violent and unlawful manner. Rather, as this brief shows, the tort is properly limited to situations in which the person or entity entrusting a product to another actually knows or has reason to know that a specific recipient is likely to use the product in an unlawful or dangerous manner… Plaintiffs’ argument is, at bottom, an effort to have a firearm manufacturer internalize the costs of gun violence because the mother of the perpetrator of a mass shooting happened to lawfully purchase that company’s particular firearm product. This contravenes both well-reasoned tort law and an express purpose of the PLCAA to “prohibit causes of action against manufacturers . . . for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.”

Ultra-processed food: a useful concept for public health?

A recent commentary in the American Journal of Clinical Nutrition offered a “critical appraisal” of NOVA as a system of classifying foods. NOVA (a name not an acronym) classifies all foods and food products into four clearly distinct groups: unprocessed or minimally processed foods, processed culinary ingredients, processed foods and ultra-processed food and drink products. The authors of the AJCN commentary challenge many of the basic arguments of using the NOVA food classification system to examine the link between food and health.

In a response to this commentary in Public Health Nutrition, Carlos Monteiro and other developers of the NOVA system, correct inaccurate statements made about NOVA in the ‘appraisal,’ rebut points raised, and discuss the larger issue of scientific responsibility for publishing opposing views on controversial topics.  They conclude, “the NOVA classification system challenges a much older and dominant system of classifying foods based on nutrient composition. Of course, it should be appraised. But scientific advances come from the exchange of well-reasoned and supported arguments, and from balanced debate. We invite further discourse on the topic of ultra-processed foods, for the sake of science and public health. We also respectfully suggest that all journals take on the responsibility of encouraging the informed and constructive exchange of ideas in controversial areas.”

Too Big to Feed

Mega-mergers are sparking unprecedented consolidation across food systems, and new data technologies represent a powerful new driver. For decades, firms in the agri-food sector have pursued mergers and acquisitions and other forms of consolidation as part of their growth strategies. However, the recent spate of mega-mergers takes this logic to a new scale. Since 2015, the “biggest year ever for mergers and acquisitions”, a number of high-profile deals have come onto the table in a range of agri-food sectors – often with a view to linking different nodes in the chain. These include the $130 billion merger between US agro-chemical giants,

Dow and DuPont, Bayer’s $66 billion buyout of Monsanto, ChemChina’s acquisition of Syngenta for $43 billion and its planned merger with Sinochem in 2018. These deals alone will place as much as 70% of the agrochemical industry in the hands of only three merged companies. A new report Too Big to Feed Exploring the impacts of mega-mergers, consolidation and concentration of power in the agri-food sector from the International Panel of Experts on Sustainable Food Systems analyzes this issue.