This is a guest blog-post by  Professor Timothy D. Lytton

In my previous posts I have proposed that the FDA regulate front-of-package nutrition labels by better enforcement of existing regulations and by setting minimum standards for labels that rate the overall nutritional value of foods. By contrast, the Center for Science and the Public Interest as well as the Fooducate Blog have advocated that the FDA develop and impose on the food industry “a simple, uniform science-based system [that] would bring consistent and reliable information to the marketplace and help consumers choose more healthful diets.”

However, the high level of complexity involved in designing nutritional rating systems gives rise to two reasons to prefer a regulatory approach that merely sets minimum-standards.

First, there is little reason to suppose that government policymakers will be able to create a system that is superior to those developed by research scientists in academia and industry. Disagreement among experts in industry and academia as to the best approach to nutrient profiling—even after millions of dollars of investment and years of research—is significant and ongoing. By contrast, merely setting minimum standards is a less complex task that is more likely to generate consensus among experts, who do agree on many basic principles of nutrition. Setting minimum standards is a common regulatory tool well within the expertise of the FDA and likely to elicit few complaints about the agency acting beyond the powers delegated to it by Congress.

Second, allowing for experimentation and competition among private-sector groups is likely to advance knowledge in the area of nutrient profiling and food labeling more effectively than the development and imposition of a single, centralized government scheme. Minimum government standards will create space for genuine experimentation and competition aimed at advancing knowledge while eliminating merely profit-driven research and the use of front-of-package nutrition labels as just another marketing strategy. There is also reason to believe that market incentives, under certain circumstances, will produce high quality scientific information. While allegations of conflict of interest and “junk-science” surround manufacturer-sponsored front-of-package labels, such as Smart Choices, the same is not true of shelf labels developed by or for retail stores. The Guiding Stars and NuVal labels have been singled out for the scientific integrity of their ratings, even among critics of nutrient profiling generally. One reason may be that retail supermarkets are less interested in selling any particular type or brand of food, including their own their own store brands, than in attracting consumers into their stores. Whereas manufacturers have an incentive to adopt nutrient profiling schemes that favor their products—regardless of the product’s nutritional value—retail supermarkets draw customers into their stores by offering them reliable nutrient profile labels that, for some consumers, enhance their shopping experience.

The most effective role for government in the regulation of front-of-package nutrition labels is not to supplant private sector experimentation and competition but rather to ensure that it is not corrupted by unscrupulous companies willing to put profits ahead of scientific integrity.

Timothy D. Lytton is the Albert and Angela Distinguished Professor of Law at Albany Law School where he teaches regulatory law & policy, constitutional law, administrative law, and tort law. His article “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling” (forthcoming in Health Matrix, vol. 19, no. 2) is available online by clicking here. He is also working on an article about regulation of nutrition standards for school food. For more information, visit his Albany Law School faculty website.

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This is a guest blog-post by  Professor Timothy D. Lytton

In my previous post, I suggested that regulation of front-of-package nutrition labels should begin with better enforcement of existing standards. Existing regulations, I argued, already provide adequate tools to clamp down on misleading labels. I focused on the three most common types of front-of-package nutrition labels: (1) those that provide simple quantitative statements, (2) those that rate individual nutrients, and (3) those that present seals of approval. In this post, I suggest how existing standards might be further developed to regulate a fourth type of front-of-package label.

Rating Overall Nutritional Value: Guiding Stars & NuVal

The fourth type of front-of-package nutrition label rates the overall nutritional value of foods. For example, Hannaford Brothers’ Guiding Stars label rates foods on a scale of zero to three stars and the NuVal Nutritional Scoring System rates foods on a scale from one to one hundred.

The FDA could build on its existing regulations concerning the use of “healthy” claims to develop multiple threshold definitions for overall nutritional value, for example providing three threshold definitions that would create a four-point scale: (1) foods below the bottom threshold, (2) foods between the bottom and middle thresholds, (3) foods between the middle and top thresholds, (4) and foods above the top threshold. This could be accomplished by adding further gradation to the current FDA definition of “healthy,” as the agency has already done for some single nutrient claims (for example, “low sodium,” “very low sodium,” and “sodium free.”).

Thus, food ratings in a scheme like Hannaford Brothers’ Guiding Stars would have to meet the corresponding FDA threshold definitions—a food labeled with three stars would have to meet the FDA’s top threshold definition, a food labeled with two stars would have to meet the FDA’s middle threshold definition, and so on. For schemes with a higher level of gradation, like NuVal’s one to one-hundred ranking, the FDA could use the same four-point scale. Foods rated by NuVal in the top quartile (100-76) would have to meet the FDA’s top threshold definition, foods in the NuVal second quartile (75-51) would have to meet the FDAs middle threshold definition, and so on. Calibrating nutrient profile rating schemes to graduated FDA definitions of relative overall nutritional value, using the definition of “healthy” as a starting point, would provide consistency among schemes based on the federal government’s dietary guidelines and health recommendations.

This means of regulation would also allow for variation among schemes in terms of gradation and rankings. Those who design nutrient profile labeling schemes could experiment with greater and lesser levels of gradation, and rankings could vary so long as they met or exceeded minimum FDA threshold levels. The purpose of my proposal to formulate a four-tiered definition of “healthy” is not to create an FDA nutrient profile rating system to displace private-sector rating systems like Guiding Stars or NuVal. The purpose is merely to provide an easily understandable system of minimum thresholds to prevent abuse. Thresholds should be set in such a way as to prevent high ratings for foods of low nutritional value—like Froot Loops—while allowing for variation in different approaches that are consistent with these minimum thresholds. This regulatory approach does not interfere with private sector efforts to develop more complex nutrient rating schemes, so long as those schemes satisfy minimum standards that prevent ratings that are false or misleading.

In a subsequent post, I will discuss why FDA imposition of a uniform, mandatory front-of-package labeling system—as proposed by the Center for Science in the Public Interest—might not be the best regulatory approach.

Timothy D. Lytton is the Albert and Angela Distinguished Professor of Law at Albany Law School where he teaches regulatory law & policy, constitutional law, administrative law, and tort law. His article “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling” (forthcoming in Health Matrix, vol. 19, no. 2) is available online by clicking here. He is also working on an article about regulation of nutrition standards for school food. For more information, visit his Albany Law School faculty website.

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This is a guest blog-post by  Professor Timothy D. Lytton

At the top of the FDA’s agenda for 2010 is regulating front-of-package nutrition labels.

Proponents of symbols like the Heart Check mark and the Smart Choices logo and rating systems like Guiding Stars and NuVal argue that they offer a quick way to help consumers identify foods that contribute to a healthy diet. Critics allege that the labeling schemes are confusing and misleading and have called for stricter government regulation. The Center for Science and the Public Interest (CSPI) recently released a report advocating that the FDA to develop a uniform, mandatory front-of-package labeling system.

But before the FDA gets into the business of creating its own front-of-package labeling scheme, it should first consider how existing regulations could be used to clamp down on misleading front-of-package labeling information. Better use of existing regulations would be a prudent first step in reigning in the current front-of-package free-for-all.

The FDA has promulgated extensive regulations governing the use of nutrient content claims on food labels—claims describe the level of a nutrient in a food. FDA regulations distinguish several different categories of nutrient content claims, and most front-of-package nutrition labels fall into one of three categories.

1. Simple Quantitative Statements: The Nutrition Highlights Panel

Some front-of-package nutrition labels present nutrient information in the form of simple quantitative statements concerning the amount of one or more nutrients in the food. General Mills’ Nutrition Highlights panel is an example of this type of label.

Existing FDA regulations allow for simple quantitative statements provided that they are accurate.

2. Rating Individual Nutrients: The Traffic Light Label

A second type of front-of-package nutrition label rates the level of individual nutrients on a scale. The British Food Standards Agency (FSA) traffic light label provides an example.

Under FDA regulations, any label claim that employs descriptive terms to characterize the level of a nutrient, such as “low in sodium” or “high in fiber,” may be made only for nutrients for which FDA has established a Daily Value (DV), may be used only if the food meets specified threshold requirements for the nutrient, and may employ only descriptive terms approved by the FDA. For example, a tub of yoghurt labeled “high in calcium” must contain at least twenty percent of the DV of calcium per 225 grams of yoghurt. Any front-of-package label that rates individual nutrients must conform to these strict guidelines. (Note: A daily value for sugar has not been established by the FDA.)

3. Seals of Approval: The Heart Check Mark & The Smart Choices Logo

A third type of front-of-package nutrition label combines analysis of nutrients to suggest that a food satisfies some minimum standard of overall nutritional value, such that it contributes to a healthy diet. The American Heart Association (AHA) Heart Check mark is an example.

The AHA explains on its website that the underlying nutrient criteria for the label are based on the Association’s dietary recommendations which it explains are consistent with federal dietary guidelines and health recommendations. The mark is intended to convey that a food is of high nutritional value by these standards.

Symbols like the Heart Check mark are functionally equivalent to label claims that a food is “healthy.” Under FDA regulations, foods labeled “healthy,” or any derivative of the term such as “healthier” or “healthful,” must not exceed specific thresholds of fat, saturated fat, sodium, and cholesterol and must contain requisite amounts of other nutrients such as vitamin A, vitamin C, calcium, iron, protein, and fiber, depending upon the food. “[T]he purpose of the ‘healthy’ claim,” explains the FDA, “is to highlight those foods that, based on their nutrient levels, are particularly useful in constructing a diet that conforms to current dietary guidelines.” This is precisely what symbols like the Heart Check mark are intended to convey, and this is how consumers understand them. They should, therefore, be required to meet FDA standards for “healthy” claims.

Some front-of-package nutrition labels place symbols of approval on products within a food category that have comparatively better overall nutritional value, although they may be foods of low nutritional value. The symbol is meant to indicate not that a food is healthy in the absolute sense but merely healthier in a relative sense. For example, the Smart Choices logo has appeared on cereals such as Cocoa Krispies and Froot Loops based on their relatively lower sugar content when compared to other highly-sweetened children’s cereals.

FDA regulations prohibit this type of relative healthy claim, explaining that,

“[t]he usefulness of a food labeled ‘healthy’ is not based on how it compares to a similar food, but on how it contributes to achieving a total diet consistent with dietary recommendations.”

Foods that are healthy only in a relative sense do not contribute to a total diet consistent with dietary recommendations and are, therefore, misleading. Under existing FDA regulations, front-of-package labeling schemes that make this type of relative “healthier” claim should be prohibited.

In a subsequent post, I will address how the FDA could further develop its regulations governing the use of healthy claims to regulate more complex front-of-package labels that rate the overall nutritional value of foods.

Timothy D. Lytton is the Albert and Angela Distinguished Professor of Law at Albany Law School where he teaches regulatory law & policy, constitutional law, administrative law, and tort law. His article “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling” (forthcoming in Health Matrix, vol. 19, no. 2) is available online by clicking here. He is also working on an article about regulation of nutrition standards for school food. For more information, visit his Albany Law School faculty website.

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Choose a better breakfast with CerealScan™ by Fooducate

Cereal has become, in just over a century, the quintessential American breakfast. Tens of millions of people start their day with a bowl of flakes, puffs, or crisps poured from a cardboard box .

There are over 1000 different cold cereal products one can choose from, and any given supermarket dedicates an entire aisle to these. Last year, Americans bought over Ten Billion dollars worth of breakfast cereal. This is a big business, with lots at stake for manufacturers, big and small, who fight for every sliver of market share.

Let’s remind ourselves that cereal is not the only option for breakfast. Whole wheat toast, banana, yogurt, cheese, fruit salad, a glass of milk, and eggs are a great start to a day, and don’t require much effort.  For many households, though, cereal is a morning tradition not easily broken. But can it be nutritionally improved?

As consumers are becoming more educated about health and nutrition, the cereal category is in flux, with each brand trying to convince us that its line of products is the nutritional Olympus. Despite small improvements here and there, most of the achievements are in marketing claims. Shoppers are now more confused than ever – with an overload of conflicting information – and no true means to decipher it all to make a good decision.

No more.

Today, we are happy to announce CerealScan™, an iPhone application that will help you choose a better, more nutritious breakfast cereal at the supermarket.

It’s dead simple to use: You launch the CerealScan application on your iPhone. It automatically scans a cereal box’s barcode (UPC).   You then see a product dashboard with concise, graphic information that helps you decide in 3 seconds if the cereal is healthy enough for you. If not, CerealScan shows 5 better choices.

Here is an example (see image). The scanned cereal scores only 2 out of 5. It is high in sugar and medium in sodium. It contains trans fats and controversial artificial colorings. Not good. Swipe your finger across the alternatives to view all 5 better options. Tap on an alternative’s image to see its nutrition dashboard.

How it works: We’ve culled over 2000 cereal boxes into the CerealScan database. The analysis and recommendations are fully automated. They are modeled on answering a simple question – “What would a dietitian recommend if she was standing there with you at the cereal aisle?” The implementation of that answer is by no means trivial. Thankfully a dedicated group of dietitians and programmers at Fooducate have been working on this project for quite some time. I think they’ve done a great job.

If you want to to learn more, there’s more information at the Cereal Scan Website. To get it on Apple’s iTunes click here.

What to do at the supermarket:

When it comes to cereal, the basics we’ve been writing about for the past 18 months have not changed. More fiber, Less sugar. No artificial colors and funny preservatives.

Now you have another option – you don’t need to remember anything, just bring your iPhone along with you to the supermarket and use CerealScan.

Try it out, we’d love to hear how CerealScan has helped you make a better choice. Comment below or email us: cerealscan at fooducate dot com.

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Breakfast cereal has been a wildly popular staple of our diet for over a century, but granola, both in a bowl or as a bar, is a much younger phenomena, dating back to the late sixties and the hippie movement. For some reason, a health halo has been shining on granola products for decades, allowing manufacturers to charge a premium. In many cases, the products sold  are not much better, or even worse than sugary cereals and candy bars.

What you need to know:

Here’s why granola’s health halo is not always justified:

1. More calories. While the average breakfast cereal is 100-120 calories, most granolas are 200-250 calories, twice as much. True, granola is much more dense than corn flakes or rice puffs, but if you are trying to cut down on your weight, beware.

2. Not so natural. Many “natural” sounding products are made up of the same ingredients as candy bars  – partially hydrogenated oils (read: trans-fat), artificial colors, and various preservatives. Quaker’s Low-Fat Chocolate Chip Granola has a megillah for an ingredient list, and includes goodies such as partially hydrogenated vegetable oil, BHT, and artificial flavorings.

3. Sugar. While many granola products names boast titles including “Honey Toasted” and “Maple Syrup”, the lead sweetener  is sugar, not the natural sweetener. And there’s lots of it. Take a look at Cascadian Farms Maple Brown Sugar Granola. Its second ingredient is sugar. Number 6 is brown sugar, and number 8 is Maple. All told, there are 14 grams of sugar per serving, or 3.5 teaspoons! That’s more than Froot Loops or Frosted Flakes.

What to do at the supermarket:

Watch out for the calorie count on your favorite granola cereal/bar. Inspect the ingredient list to make sure that sugar in its various names is not the predominant ingredient. Generally – avoid bars with long ingredient lists. A good bar or granola cereal should not be sweetened with anything but dried fruit and possibly some honey.

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Have you noticed the slough of  “quick glance” nutrition information we’ve been bombarded with this year? Whether it’s the calorie count on menu items at fast food chains, or on products or shelves at the supermarket, many new nutrition graphics, icons, and slogans have entered our vocabulary in 2009. NuVal, Smart Choices, Traffic Lights, and a host of other front of pack labels stormed into shoppers’ lives this year (some earlier).

But did they help us improve our choices?

That’s the billion dollar question, which unfortunately does not have a simple answer. Hannaford, a grocery retailer that introduced Guiding Stars several years ago, claims that products marked with at least one “star” showed an uptick in sales. The system provides a score of zero, one, two, or three stars to each an every product sold in Hannaford supermarkets, based on its nutritional value.

NuVal, on the other hand, scores products from 0-100, and is currently offering nutrition information in less than 1000 supermarkets, mostly in the midwest. Anecdotal evidence shows that people are slightly improving choices.

In New York, where calorie labeling in fast food chains such as McDonald’s and Pizza Hut went into effect last year, no changes in people’s habits were recorded so far. And in the UK, where the Traffic Light System has been in use for several years on packaged foods, the verdict is mixed. One study, published by the Food Standards Agency (FSA), the British equivalent of the FDA, showed an improvement in people’s choices. But a recent study by Oxford University researchers showed no correlation between the traffic light symbols and people’s choice of a ready to eat sandwich.

What you need to know:

While the quick glance label may give you quick info, the “information” may not always be in your best nutritional interest. You need to understand that many times the front of pack (FOP) nutrition info is just another marketing tool used by food manufacturers and retailers to get you to think that a product is healthy, when in fact it’s not. The best example is Froot Loops, which received a “Smart Choice” accolade by a consortium of manufacturers and fig-leafs scientists from top universities. This for a cereal with 40% sugar by weight, controversial artificial colors, and trans-fat. Luckily the Smart Choices program was nixed several months after it launched.

There is one very important effect that front of pack nutrition labeling has had though. It has caused food manufacturers to take a look at their products and reformulate them to some extent in order to qualify as many as possible as nutritious. Even Froot Loops lost a bit of sugar and gained a bit of fiber. Granted, these are baby steps, but at least they are in the right direction.

What to do at the supermarket:

Since the front of pack labels have not been approved by the FDA and are not really regulated, there is a lot of wiggle room for manufacturers to sell you a “healthy story” rather than a healthy product.

We recommend that you read the nutrition label itself, along with the ingredient list. It will take another moment of your time, but you will know exactly what you’re getting. And if you need advice or help in choosing a product, Fooducate is always here to help.

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We posted a few days ago about how 80% of Kids Commercials on Nickelodeon are for junk food. Junk cereal is also in the mix. If you were wondering how bad the situation is, watch the spot below for Froot Loops and Apple Jacks [Hat tip to Change.org]. Anyone still believe that the food industry isn’t manipulating kids?

For decades, advertisers sold kids cereals as fun, but now they are appealing to a 5 year old’s health and nutrition concerns. Thank you, Kellogg’s, for misinforming our children, creatively, once again.

What you need to know:

Let’s forget for a minute the sexist role play (Male doctor, female receptionist..)

The cutesy commercial fails to mention that Froot Loops includes trans fat, is 44% sugar by weight, and contains controversial artificial colorings that may prevent  any of these kids from being able to concentrate long enough to learn about nutrition. Apple Jacks is not much better.

What to do at the supermarket:

Breakfast cereals should contain much more fiber (5 grams and up) and much less sugar (6 grams or less). A kid oriented cereal will usually not be up to par. But you can buy a “grownup” cereal and sweeten it at home with a teaspoon of honey or sliced bananas.

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USA Today has two stories out about a recent research project by Yale University’s Rudd Center for Food Policy and Obesity. The findings were presented in Washington DC as part of the annual meeting of the Obesity Society. Here’s what they found:

Cereals marketed to kids have 85% more sugar, 65% less fiber and 60% more sodium than those aimed at adults!

Some more interesting facts:

•The least nutritious cereals are  the most heavily marketed to children – Reese’s Puffs, Corn Pops, Lucky Charms, Cinnamon Toast Crunch and Cap’n Crunch.

•Some of the products with the poorest nutrition ratings have health claims on the boxes.

•The average preschooler sees 642 TV cereal ads a year; most are for types with the worst nutrition ratings.

•Cereal companies spend more than $156 million a year marketing to children.

This study shines an even brighter light on the ludicrous Smart Choices Program, terminated this weekend, which elevated candy breakfasts such as Froot Loops and Apple Jacks to a “nutritious” status.

As Expected, the major cereal manufacturers have an answer though:

General Mills spokeswoman Heidi Geller says kids who eat cereal more frequently, including pre-sweetened cereals, “tend to weigh less than kids who eat cereal less frequently — and they are better nourished.”

The Rudd center put together a great website called Cereal Facts, that lets parents search cereals by name or manufacturer, and then receive a nutrition ranking, including information about the product.

What to do at the supermarket:

Look for cereals that are high in fiber (3 grams and up per serving), low in sugar (less than 6 grams), and low in sodium (less than 120mg). If your kids complain that they are not sweet enough – you can always add a spoonful of honey, maple syrup, or sugar to the milk.

Click here for a list of the top 10 cereals according to Cereal Facts. In the list are shredded wheat products from Kashi, Barbara’s Bakery, Nature’s Path and the big players too.

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Update [Wednesday morning 10/27]: General Mills has thrown in the towel as well. Just last week, at the annual ADA conference, Susan Crocket, PhD, RD the company’s Senior VP of Health and Nutrition defended the program’s integrity with deep fervor.

Update [Monday night 10/26] : Unilever just announced that it will be phasing out the Smart Choices logo from its food and beverage products now that the Food and Drug Administration plans to standardize criteria for food nutrition labels.

The Smart Choices Program will cease Front of Pack food labeling effective immediately. Bowing to pressure from the public as well as warning letters from the FDA and Connecticut’s Attorney General, the industry led organization announced

it will voluntarily postpone active operations and not encourage wider use of the logo at this time by either new or currently enrolled companies. more…

The American Society for Nutrition, which served as the “objective, scientific” cover for the nutrition criteria set by the food industry, sent out a letter to its members:

ASN commends the FDA on its announcement of intent to develop standardized criteria on which front-of-pack nutrition and shelf labeling could be based. In addition, ASN fully supports the decision of the Smart Choices Program Board of Directors to postpone their active operations as FDA works to address both front-of-pack and on shelf labeling. “ASN will continue to provide nutrition science expertise within the dialogue on front-of-pack labeling in order to best serve the interests of the health of Americans,” said ASN President Jim Hill in a statement to media.

Interestingly, the statement by the Smart Choices Board of Directors does not appear on their website homepage. It was also issued late Friday afternoon, a time slot usually reserved for bad news by PR professionals, assuming the upcoming weekend will help soften the blow.

What you need to know:

This is a great piece of news to kick off the weekend.

Despite explanations by top nutrition experts and as to why the Smart Choices program was scientifically sound, anyone with a bit of common sense will tell you that Froot Loops cereal is not a “Smart Choice”.

What to do at the supermarket:

Make your own Smart Choice by learning to read nutrition facts panels and ingredient lists. Here’s an easy piece of advice to follow: in many cases, the shorter the ingredient list, the better the product.

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In perfect timing with ADA’s nutrition and food conference, The FDA issued a “letter to manufacturers” on Monday, informing them (and us) that it will begin an investigation into Front of Pack (FOP) nutrition labels.

Here are some interesting tidbits from the regulatory body in charge of what is mentioned on the food labels of virtually every product we buy at the supermarket.

FDA recognizes that point of purchase labeling can be a way of promoting informed food choices and helping consumers construct healthier diets in accordance with the Dietary Guidelines for Americans.

… If voluntary action by the food industry does not result in a common, credible approach to FOP and shelf labeling, we will consider using our regulatory tools toward that end.

Hopefully the Smart Choices / Froot Loops fiasco will lead to some good – a standardized, objective, and trustworthy front of pack label that consumers will be able to rely on. That way you wont’t be buying a cereal whose first ingredient is sugar, contains trans fat, and has 4 different kinds of artificial colorings to it thinking it is a healthy choice for your child.

What to do at the supermarket:

Don’t hold your breath until FDA regulations kick in. The government is slow to move… In the meantime, don’t gather any nutrition information from health claims or nutrition labels on the front of a product package. The only information relevant is the nutrition facts panel.

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