WASHINGTON – When the U.S. Food and Drug Administration indefinitely suspended implementation of new food nutrition labeling rules last month, it showed the clout of the nation’s food lobby, which includes trade groups representing more than a dozen Minnesota companies.
It also reflects a drive in the nation’s capital to scrutinize regulations under President Donald Trump to help spur economic growth.
The announcement came a year after the rules had supposedly been finalized and a deadline for compliance set. The government said it will eventually apply the rules, and the food industry promises to eventually abide by them.
But the food industry balked at a two-year labeling deadline, told the government so, and received a reprieve that likely will last three years and perhaps longer. Concerns include confusion and cost.
The industry estimates that spreading compliance costs over five years instead of two will save companies nearly $2 billion. Meanwhile, consumers will have to wait to learn things like the amount of sugar added to foods and beverages, a process that some nutritionists believe drives the nation’s obesity and Type 2 diabetes epidemics.
The business sector has sway like it hasn’t had in decades, said Steve Billet, a former lobbyist now teaching at George Washington University. Diluting regulations by delaying them has long been a strategy for big players when they don’t get their way in Washington, Billet said.
But under the Trump administration, complaining — even after the fact — will likely yield results. “I suspect pushback by any industry is going to be well-received,” Billet said. “Companies feel empowered.”
This kind of influence raises questions, said Mehmet Konar-Steenberg, an administrative law specialist at Mitchell Hamline School of Law.
“The public should be asking who benefits from these kinds of regulatory reversals,” Konar-Steenberg explained. “Does public health benefit? Or is something else going on?”
Fighting a different labeling rule, trade groups for convenience stores have specifically invoked the Trump administration’s disdain for regulation as a reason why their members should not have to post calorie counts on menus. The FDA has extended the comment period and pushed the original May 2017 compliance date to May 2018.
Michelle Obama’s cause
The nutrition labeling rules were finalized in May 2016 after years of work. It was the first rewrite of labeling rules in roughly two decades. Portion sizes, calorie counts and large print were among the issues debated in a deliberative process. First Lady Michele Obama, who made nutrition a centerpiece of her time in the White House, took a lead role.
Food businesses objected to some of the rules. They lost the battle over revealing amounts of sugar added to products, as well as changes in what qualifies as dietary fiber. The government gave companies until July 2018 to comply with the rules.
Instead, the food industry insisted that it needed until May 2021 to comply. Lobbyists said changing labels was too expensive in the short run and that the FDA had not offered enough guidance on the issues of added sugars and dietary fiber.
“People don’t understand that this is how the regulatory process in this country works,” George Washington’s Billet said. “These industries have the resources to fight these issues. This is not sexy politics, but they get away with a lot.”
General Mills was among those petitioning the FDA. The Golden Valley-based company specifically cited the unresolved definition of dietary fiber in a letter submitted last September. The FDA initially approved just seven forms of fiber, excluding several that General Mills relies on.
Without the inclusion of certain fibers like inulin fructans extracted from chicory root, the company argued, it would need to reformulate all of its Fiber One products with an approved fiber source, or change the label to reflect a low fiber count.
For a new fiber form to be approved, food companies must prove, with published scientific research, a physiological benefit — like improved gut health or digestion, lowering of blood sugar or mineral absorption. The FDA is currently considering an additional 25 sources of fiber, said Joanne Slavin, a professor of food science and nutrition at the University of Minnesota. She expects inulin will be approved by late summer.
“FDA has received more than ample scientific support for inulin’s health benefits to finalize their fiber evaluation, so we do not anticipate the need for recipe changes,” Bridget Christenson, a General Mills spokeswomen, wrote in an e-mail.
Food lobbyists also said that companies need to coordinate new labels with a separate law that requires products to carry a notice of genetically modified ingredients (GMO).
“The FDA made a common-sense decision that will reduce confusion and costs,” said Roger Lowe, vice president of the Grocery Manufacturers Association (GMA), whose members include Minnesota mega-businesses Cargill, General Mills, Hormel, Land O’Lakes and Ecolab.
However the connection between updated nutrition facts and the GMO label is unclear. The two appear in separate locations on food packages. Several food companies, including General Mills, have already begun selling products with the GMO label while awaiting clarification for the nutrition-facts panel.
Despite supporting efforts to delay the compliance deadline, Schwan’s Co., based in Marshall, Minn., and Bloomington, said it is “well along the path to revising all package labels to meet the compliance date of July 26, 2018.” Hormel Foods Corp., headquartered in Austin, Minn., also said it is on track to hit the compliance date and several of its products will bear new labels over the next six months. Yet the company supports the delay.
FDA Commissioner Scott Gottlieb has said that he does not plan to sack the nutrition labels nor renegotiate them and will set a new compliance date soon.
GMA’s Lowe said the trade group’s members support the new labeling rules. But in 2015, during the rule-making process, GMA wrote to the FDA saying that “the majority of GMA members believes that the agency’s proposal to require ‘added sugars’ labeling and the definition of ‘added sugars’ it proposes … raise serious questions of law and policy.”
In March 2017, when the U.S. Commerce Department invited GMA to discuss the effect of federal regulations on manufacturing, the trade group chose to focus its criticism on a single issue: the new food and nutrition labeling rules.
“With nutrition facts, companies would like to delay expenses,” said Michael Jacobson, executive director of the Center for Science in the Public Interest. “Some of the companies are embarrassed by the sugar content of their products. So they postpone as long as possible. They haven’t even started writing the GMO rule. Who knows what’s going to be the time frame.”
The delay is “a serious issue,” said Dr. David Heber, founding director of the UCLA Center for Human Nutrition. “We have about 80 million Type 2 diabetics in the United States. That is 95 percent related to obesity, which results from all of the excess sugar and fat in our diets, combined with a sedentary lifestyle.”
The U’s Slavin, a nutritionist, agrees sugar intake should be monitored, but says consumers may be confused and “surprised to find natural sweeteners like honey and maple syrup will be classified entirely as added sugar.”
And while large companies wield the lobbying power, the changes will be particularly onerous to small companies, said Slavin, who helps food makers reformulate to meet nutrition standards.
“It puts small companies at a huge disadvantage,” Slavin said. “For them to figure out some of these rules is pretty difficult.”