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FDA Looks On As Nutrition Advocates Battle Obesity, Junk Foods

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Santa Fe, New Mexico - Consumer advocate and Legislative Activist, Stephen Fox does not take NO for an answer, when it comes to protecting children in school from junk foods and especially from artificially sweetened soda pop and coke sold widely in vending machines.

Legislation introduced in the New Mexico State Legislature in January 2005 was "killed" by heavy lobbying from the big food industry. It is being re-introduced in 2006, and the battle promises to become a memorable David-and-Goliath act. The FDA is refusing to issue national regulations or promote national legislation despite widespread obesity and problems of kids in school, that many say are due to bad nutrition. The food giants are pressuring legislators. Lobbyists and campaign contributions have swayed many, not only in New Mexico but all over the U.S.

Albuquerque, New Mexico, had signed an exclusive contract for the district's 125 schools with PepsiCo. In 2004, when schools tried to stock other vending machines with milk, PepsiCo sent a letter warning that they were in violation of the contract. Apparently the contract does indeed bind the school district to PepsiCo and only in 2007, it comes up for renewal, at which time it may be cancelled. It is far from easy to get healthier foods and drinks into schools over the resistance of the food and drinks industry.

Following below is a report by Stephen Fox, with an introduction by Leland Lehrman of Mother Media. Anyone seriously interested in bettering the nutritional situation for kids in school may find the report very interesting.

From: "Dr. Betty Martini,D.Hum."
Sent: Tue, 26 Jul 2005
Subject: Consumer Protection Advocates Pound Junk Food Corporations Nationwide

Original message from: Leland Lehrman, Mother Media

This week, Mother Media is pleased to present an update from Consumer Protection Advocate and Legislative Activist, Stephen Fox from Santa Fe, New Mexico. Stephen's analysis below reflects years of intense and grueling work on behalf of the health of Americans and all people worldwide. We all owe him an extensive debt of gratitude. Do contact him at the addresses below with questions or to help.

In New Mexico, several quantum legislative leaps are now leading to the regulation of neurotoxic aspartame (NutraSweet - found in most diet foods and soft drink) and will put new teeth into consumer protection statutes. Stephen Fox, founder of the New Mexico Nutrition Council, has authored legislation to create an official body of the same name, with express powers to reject products, especially aspartame, even if they are approved by the US FDA. Aspartame is the most egregiously harmful of food additives.

The sponsor of the bill in 2005 was Sen. Ben Altamirano, President Pro Tem of the NM Senate, and it passed the Senate 32-1. Regrettably, corporate lobbyists from Altria (i.e. Kraft/Philip Morris) hamstrung the bill in a committee, got it reported out late, and it was killed by a Republican filibusterer from Roswell on the last day of the legislative session, along with 50 other bills and memorials.

Sen. Altamirano will be the sponsor again in 2006, but the legislature expects more corporate lobbyists to hammer on this progressive and humane bill, the strongest effort at strengthened consumer protection in the United States. The bill, Senate Bill 525, can be adapted and fit into any state or national legislature, provided you print it out, cross out New Mexico, write in your state or nation, and send it to your legislators; it can be found at this site.

For more information, please contact Stephen Fox


Consumer Protection Advocates Pound Junk Food Corporations Nationwide
by Stephen Fox

The looming battle between megacorporate interests and those who protect the public's health is very clear, especially when it comes to New Mexico legislation intended to protect children's health in the schools. In the effort to create a New Mexico Nutrition Council, sponsored in 2005 by New Mexico Senate President Pro Tem Ben Altamirano (Democrat, Silver City), the prime legal goal was to create a workable standard which is higher, more protective, and more medically accurate than is possible through the US Food and Drug Administration. Too many corporations have been able to manipulate the once strong approval processes at the FDA, to the extent that such approval really doesn't mean much any more. The realm of food additives has grown to include proven carcinogens and neurotoxins, and the FDA and Congress both seem powerless and oblivious to correct it. For example, the "generally recognized as safe" list of food additives is a witch's brew of horrible chemicals which all intelligent Americans try to avoid. We are witnessingan enormous spike in the statistics for diabetes, heart disease, cancer, and numerous neurodegenerative diseases. Overall, the USA has dropped to 29th in the world for life expectancy - in spite of our wealth, political power, and military expenditures.

With the Nutrition Council Legislation, we hope to build a set of statutes in the realm of Consumer Protection based on the medical, biochemical, and nutritional needs of our citizens. Attorney General Eliot Spitzer of New York recently commented in Santa Fe that the FDA was a "joke."

Minnesota Attorney General Mike Hatch's recently filed an amicus curiae brief in a Federal case that involves a drug company essentially hiding behind its FDA approval. Hatch's amicus brief corroborates central tenets of the New Mexico Nutrition Council bill, details the reasons that the FDA is in serious trouble, and asserts that FDA approval does not preclude dangerous product liability.

In a letter supporting the Nutrition Council Bill, Attorney General Patricia Madrid and Deputy Attorney General Stuart Bluestone wrote February 11, 2005:

"The access to information on good nutrition is essential to optimal development in children, and to support a healthy life-style in our adult population. The success of this effort would be increased by the creation of a council whose members represent so many aspects of this issue. The inclusion of consumer protection advocates, the medical community, the education community, as well as farmers and ranchers, is indicative of the comprehensive and committed approach to the issue that these bills represent. Requiring basic nutritional education, not only in public elementary and secondary schools, but also in the curriculum of all health related professionals, further emphasizes the benefits to be achieved through nutritional education."

Similarly, U.S. Senator Jeff Bingaman [a former NM Attorney General], February 23:

"As a nation, we can no longer afford to ignore the increasing costs associated with obesity and unhealthy lifestyles, such as physical inactivity and poor dietary habits. According to the Surgeon General's 2001 report, the total cost of obesity was estimated to be $117 billion in 2000. This includes direct costs such as health care associated with obesity-related diseases as well as more indirect costs such as decreased productivity in our work and personal lives.... The "Nutrition Council Act" is a step in the right direction as it addresses the need for providing nutritional education to our students. Together with an active physical lifestyle, a nutritious diet is a critical component to living a long and healthy life and to reducing risk factors associated with chronic illnesses, such as heart disease, stroke, cancer, and diabetes."

Congressman Tom Udall [another former NM Attorney General], March 2:

"Our nation needs a new approach to health care; an approach that puts preventive health care and health promotion programs front and center. Nutrition is a critical component of this effort, playing a significant role in the onset and progression of six of the ten leading causes of death. The Surgeon General in his December 2001 report left no doubt where we are headed, stating that obesity may soon cause as much preventable disease and death as cigarette smoking. The health care costs to deal with these trends are overwhelming and unaffordable. If people are given the facts and alternatives, they can take charge of their health. The "Nutrition Council Act" is a step in the right direction toward providing better nutrition education and healthy choices for our youth."

The strong support in the Legislature continues to be bi-partisan.

For example, Republican Senator Sue Wilson Beffort (whose father was one of the Founders of UNM Medical School in 1961) wrote on March 12:

"This Council could eventually arrive at solutions to prevent diabetes, heart diseases, and many other systemic medical problems partially resulting from poor nutrition. Early on-set adult diabetes is being seen in 10-year-old children. New Mexico's children deserve the best future we can help to provide."

Republican Senator Steve Komadina, M.D. (OB-GYN), the only physician in the Legislature, wrote into the bill all of the professional requirements for continuing education for physicians, nurses, chiropractors, and physicians' assistants.

Democrat Senator Jerry Ortiz y Pino wrote in an Albuquerque Tribune editorial:

"In the past 60 years, New Mexico, as well as the rest of the country, and increasingly the rest of the entire developed world has been awash in a tidal wave of fast food and junk food.... [Regarding potential suits against corporations manufacturing or using neurotoxic food additives] In the early 90's, if New Mexico and other states had passed a "Freedom to Smoke Cigarettes" law, there would have been no tobacco suits, and the tobacco companies would have been able to say, 'thank you very much - we'll keep our $235 billion in the bank.'"

Former NM Senate President Pro Tem Richard Romero wrote March 5:

"The inclusion of the Assistant Attorney General for Consumer Protection, four physicians, and designees of all of the key cabinet members clearly signals that this will not be a rubber stamp for industry."

Physicians testified in committees and wrote letters of support. Grant La Farge, M.D., Pediatric Cardiologist and former Professor at Harvard University Medical School, wrote:

"Yes, there are some other elements of this program in place that focus on the problems of inadequate diet, yet the months and years are slipping by and our youth–and our elders, for that matter–are growing fatter, and unhealthier, and more medically burdened both by hidden poisons and bad choices. I am heartened by this proposal, and by the support that Governor Richardson appears to be lending to it.

I am tremendously hopeful that this mission will succeed and the democratic – that is "democratic " with a small "d " – Nutrition Council proposed will take the angry, obese, poisoned bull of bad nutrition by the horns and bring the beast to its knees. We really must solve the problems soon, before it is too late. Time for effective change is quickly running out in which we can turn the tide of an unhealthy life to one in favor of our children, in favor of all of our citizens, irrespective of age. I pray that you can bring this enormously beneficial program to life.

"The costs of our present path are prohibitively high, and the potential savings in life and health - even in expenditures for illness - will be equally dramatic."

George Schwartz, M.D. Toxicologist, and Editor of Principles and Practice of Emergency Medicine, wrote:

"Aspartame is an injurious excitotoxin found in thousands of products, and is ingested daily by millions of Americans as an artificial sweetener in their diet beverages and poured into their coffee every morning. The long-term neurodegenerative effects on those who use these artificial sweeteners may be devastating; it already is causing severe problems, which are ignored and swept under the rug by the industries that make them. "

"It is significant that U.S. Senator Bingaman, Congressman Tom Udall, and Attorney General Madrid have all written strong letters supporting the bills, with no reservations. Their legal opinions are essential, because at the heart of both bills is a serious legal point, that a State can create a higher standard in food quality than is possible through the federal regulatory agencies, because the federal level has not entirely preempted the regulatory matters in this realm [which is in fact the preamble of this bill]. "

"In other words, three excellent lawyers have written to the entire legislature putting the weight of their elected positions and the power of their offices behind these bills, an important conclusion, given that federal powers are usually assumed to preempt any efforts through state powers."


Children are bombarded with advertising, and marketing efforts in the schools are directed squarely at them. Food manufacturers are now attempting to convince the Federal Trade Commission to allow them to self regulate their industries and their advertising. In her brilliant commentary to the Chairman of the Federal Trade Commission, Donald Clark, Michele Simon, an Associate Professor of Law and Health Policy at the University of California Hastings College of Law, as well as Founder and Director of the Center for Informed Food Choices, wrote in June 2005:

"Industry self-regulation of food marketing to children is a 30-year experiment that has utterly failed. One only needs to turn on any children's television show to see the plain evidence of this reality. Industry-wide self-regulatory guidelines include those promulgated by the powerful trade association, the Grocery Manufacturers of America (GMA), and yet in their ads directed towards children, these companies continually violate their own guidelines!"

GMA is the world's largest association of food, beverage and consumer product companies. GMA's 140 members enjoy annual sales of more than $500 billion in the U.S. alone, and consist of major food corporations such as Kraft, Nestle, Mars, PepsiCo, Kellogg, ConAgra, Campbell Soup, General Mills, Nestle, and the Coca- Cola Company.

GMA Lobbying to Undermine Children's Health in Schools and Related Legislation

Allowing companies to self-regulate implies a certain level of trust that GMA has clearly not earned. GMA has opposed every state bill across the nation that would restrict the sale of junk food or soda in schools, and GMA does not just send letters; they send experienced lobbyists to every state capital where their members' economic interests are threatened [New Mexico legislators can definitely expect GMA opposition to the 2006 Nutrition Council Bill].

In August 2004, the California legislature was on the verge of passing a crucial children's health bill that would have set reasonable standards on food sold in schools, and it was carefully developed over a two year period by health experts. Yet thanks to last-minute lobbying by GMA, the bill failed by just five votes, despite having the support of 80 nonprofit education and health organizations.

Nutrition advocates across the nation concerned about rising rates of childhood obesity and diabetes are trying their best to get their state representatives to help them rid schools of sugary beverages and high-fat junk food. However, at every step along the way, GMA, along with its member companies Coca-Cola and PepsiCo have beat them back, because they have more lobbying resources and money to offer politicians in the form of campaign contributions.

The nation's largest trade association of food manufacturers has proven that it cannot be trusted to self-regulate. GMA and its members are clearly more interested in promoting their products in schools, no matter what the consequences to children's health. The goals of a corporation and those of public health are diametrically opposed. In the 2005 Legislative session, two of the prime lobbyist opponents of the Nutrition Council Legislation were representing Altria Corporate Services, the parent company of Philip Morris and Kraft. Why does Kraft not want to see a New Mexico Nutrition Council? A look at Kraft's recent history explains all:

In January 2005, Kraft promised to scale back junk food ads to children, a move that earned the company much free positive media. But the potential impact of Kraft's promises isn't entirely clear. For example, only certain products, including regular Kool-Aid, Oreo cookies, several Post children's cereals, and some varieties of Lunchables will no longer be advertised to children under age 11. However, according to its press release, "products that the company will continue to advertise in media aimed specifically at the 6-11 age group include: Sugar-Free Kool-Aid, Half the Sugar Fruity Pebbles cereal, and Chicken Dunks Lunchables Fun Pack." Kraft claims that these products offer "beneficial nutrients or a functional benefit" as part of its new "Sensible Solutions" program, a self-defined labeling program. Thus, Kraft defines what is and isn't healthy. Is sugar-free Kool-Aid (made with Splenda, another controversial and dangerous artificial sweetener) healthy for kids just because Kraft says so?

Less than two weeks after its announcement of improved marketing practices, Kraft joined with other major food companies and ad agencies to create a new lobbying group, the Alliance for American Advertising. Together, Kraft and fellow members General Mills and Kellogg comprise the top three advertisers of packaged food to kids with combined annual spending on kids' ads of close to $380 million in the U.S. alone.

Susan Linn, author of Consuming Kids and instructor in psychiatry at Harvard Medical School is appalled at this industry power grab. "Marketing to children is not an absolute right. Food companies and the advertising industry should be thinking about their responsibilities to children, not about their 'right' to exploit them. Whether we rely on research or common sense, we know that children are more vulnerable to marketing than adults and that they should be protected because of their vulnerabilities," she said.


Coca-Cola lobbying undermines school nutrition policy right along with GMA. Here are just a few examples of states where bills were compromised or completely killed as a result of Coke's actions:

Kentucky: In March 2005, the Kentucky state legislature finally passed a compromise bill that gets rid of soda in elementary schools. Veteran dietician Carolyn Dennis, chair of the Kentucky Action for Healthy Kids Taskforce, has battled Coca-Cola lobbyists for four years. Allowing soft drink companies to continue to sell soda in middle and high schools was the only way the bill could possibly pass. The bill's original language called for "healthy beverages " to replace soda, but Coca-Cola balked, worried about the implications for its flagship product's reputation. Dennis explains: "The Coke lobbyist wanted the language, 'school-day appropriate beverages.' We debated it for hours, and finally my colleagues said Look, if this will get them off our backs, let's do it. So we compromised on school-day approved."

Washington: In 2004, the state of Washington tried to pass legislation that would have banned selling junk food and soda in schools. But, according to Seattle School Board member Brita Butler-Wall, 17 revisions later, the bill was watered down significantly: "It's pretty weak. It just requires that by the fall of 2005, all schools have some sort of policy around junk food and soda." She suspects Coke had an influence on the outcome: "All I know is, just a few days after we sat down with our state senator to talk about it, Coca-Cola sent two representatives to meet with her. That certainly didn't help matters," she said.

Indiana: At the Summit on Obesity hosted by Time magazine and ABC News in June 2004, Charles Brown, state representative from Indiana and chairman of that state's Public Health Committee asked then U.S. Secretary of Health and Human Services Tommy Thompson why, if Coca-Cola was such a responsible corporate citizen (as Thompson had just been claiming), had the company sent a team of five lobbyists (including a regional vice president) to defeat his bill that would have reduced soda sales in schools by a mere 50 percent?

Additional Examples of Industry Undermining School Nutrition

In addition to the specific lobbying tactics of the GMA and Coca-Cola, other companies such as PepsiCo and trade associations such as regional soft drink associations have been lobbying hard against improved school nutrition policies. For example:

Connecticut: A bill that would have allowed only water, juice, and milk to be sold during the school day, K-12 has been heavily lobbied against by the soft drink industry in recent weeks. As a result, a compromise was reached that allows diet soda and sports drinks to be sold in high schools after the lunch period. At one stage of the extremely contentious battle, lawmakers debated for eight hours while junk food lobbyists swarmed the state capital in hopes of killing the bill altogether. Under-handed tactics included how Coca-Cola lobbyists shared data regarding school income from soda sales with lawmakers behind closed doors, so advocates couldn't refute the information. This was the third attempt to get a bill passed in Connecticut. Last year, advocates attempted to set nutrition guidelines on food and beverages, but ended up with a gutted law. According to Lucy Nolan, executive director of End Hunger Connecticut, "Pepsi just worked that bill to death. We thought we had really good votes on it, but then we just watched the count go down. I was surprised at how hard the soda companies really went after it," she said. In mid-June, 2005, Connecticut Governor Jody Rell vetoed the most progressive and strongest school nutrition bill in the nation, deferring control to "the local level. "

Oregon: In Oregon, what was a relatively strong piece of legislation was completely gutted thanks to soda industry lobbying. The bill would have banned carbonated soft drinks, candy, and fried pastry products while setting strict nutritional and calorie requirements for other snack items sold in schools. But the bill that passed called only for schools to have "wellness policies." An Oregon newspaper editorial squarely places the blame with politicians bowing to corporate pressure: "Sen. Vicki Walker's reconstituted bill resembles the position favored by the Oregon Soft Drink Association, which, coincidentally, has made hefty campaign contributions to Walker and to two other members of the Senate Education Committee: Sen. Ryan Deckert, D-Beaverton, and Sen. Jeff Kruse, R- Roseburg. The three lawmakers each received $2,000 of the $91,000 the soft drink lobby poured into legislators' coffers last fall."

New Mexico: In Albuquerque, New Mexico, PepsiCo has an exclusive contract with the district consisting of 125 schools. In 2004, when schools tried to stock other vending machines with milk, PepsiCo sent a letter warning that they were in violation of the contract. Jennie McCary, a registered dietician with Albuquerque Public Schools explains: "We scrambled to get a hold of the contract and learned that Pepsi had exclusive rights to vend all beverages throughout the district. I was shocked to learn that the beverage companies have more rights than the schools. I find it unbelievable that the principals, who were trying to improve the beverage options, were treated this way. It was very frustrating," she said. The school advisory council plans to fight the renewal of the contract but that's not until 2007.

When it comes to educating our children about good nutrition the last people we should rely on are the very companies who are marketing unhealthy products. We should not be fooled by companies who are so eager to provide schools with education curriculum and even send their own representatives into schools. [In New Mexico, we are told that the largest school lunch programs are contracted out to McDonald's, Burger King, and Pizza Hut. The Secretary of Education and the Department of Education, however, profess to have very scant statistics to no statistics at all on what these numbers are precisely.]

Nutritionist Melinda Hemmelgarn, a Food and Society Policy Fellow with the Thomas Jefferson Agricultural Institute: "Their goal in going into schools is, in a word, branding. If Ronald McDonald was truly an ambassador of health, he would promote organic, sustainably-produced foods," she said.

Author Susan Linn agrees that McDonald's has no place in school. "This is just another marketing ploy. The notion that children need Ronald McDonald to get them to enjoy exercise is bogus. Given the opportunity, kids naturally like to be active," she said.

Nutrition experts agree that health claims by most of these megacorporations boil down to nothing more than marketing gimmicks. Melinda Hemmelgarn says the goal is not to actually promote health, but rather simply "to increase sales by health-conscious parents." Marion Nestle is more blunt: "Food companies are desperate for sales and growth and if they can use 'health' to sell junk food, they will," she said.

Given the overwhelming evidence that the food and beverage industries cannot be trusted to self-regulate, Michele Simon and her organization, Center for Informed Food Choices, do not endorse any policy proposal that would allow self-regulation. "We have tried that approach and it has failed, miserably. Instead, the government must act to protect the public's health and especially that of vulnerable young children."

What do you think? Please talk with your legislators and write to Governor Richardson and to Attorney General Madrid about your views on these vital matters. It truly is a matter of life and death!

Letters to David Contarino, Governor Richardson's Chief of Staff will be particularly effective. The address to send them to is:

Governor Bill Richardson
Attention: Chief of Staff David Contarino
490 Old Santa Fe Trail
Room 400
Santa Fe, NM 87501

For more information, contact
Stephen Fox
Founder, New Mexico Nutrition Council

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