Assisting Personal Responsibility: Using Nudges to Reduce Sugar Consumption

The United States is experiencing as an epidemic of diet-related diseases, driven at least in part by Americans' over-consumption of sugar, especially through Sugar Sweetened Beverages (SSBs). Reducing our intake of sugar will take more than just encouraging “personal responsibility,” because the current food environment creates a powerful set of “defaults” for over-consumption. A better solution would use targeted applications of behavioral economics to change these defaults to make it easier for consumers to make choices that yield healthier outcomes.

This article, published in Harvard Law and Policy Review and written by former Food Law and Policy Clinic student and current president of Harvard Food Law Society Steven Gonzalez, details a variety of policies for lawmakers to examine that, to varying degrees, embody the behavioral approach to public health problems.

Curbing Sweets Consumption

Image from Harvard Law and Policy Review

I. Introduction

The prevalence of obesity and its related chronic illnesses has been increasing for decades and takes a heavy toll not only on individual households, but also on public health institutions. The over-consumption of sugar, especially through Sugar Sweetened Beverages (SSBs), is an important contributor to this epidemic. Curtailing Americans’ intake of sugar cannot be done effectively by only encouraging “personal responsibility,” because the food environment encompasses a powerful set of factors that create “defaults” for over-consumption. On the other hand, heavy handed policies that would ban or set legal limits on particular products are politically unpalatable. A better solution would use targeted applications of behavioral economics to correct the market-failures, nudging consumers into healthier choices, while preserving Americans’ freedom to consume sugar. This article details a variety of policies for lawmakers to examine that, to varying degrees, embody the behavioral approach to public health problems.

II. Increased Prevalence of Obesity and Related Chronic Diseases

Obesity prevalence has increased dramatically in recent years.[2] In 1990, the prevalence did not exceed 15 percent in any state.[3] By 2010, the prevalence of obesity did not fall below 20 percent in any state, and exceeded 30 percent in twelve states.[4] A wealth of studies demonstrate that “[o]besity harms virtually every aspect of health, from shortening life and contributing to chronic conditions such as diabetes and cardiovascular disease to interfering with sexual function, breathing, mood, and social interactions.”[5]

One of the most devastating chronic conditions related to obesity is type 2 diabetes. Although researchers continue to study the precise nature of the relationship between the two, obesity is undoubtedly a risk factor for developing the condition and weight management is a key treatment and prevention tool for those with or at risk of developing diabetes.[6] Between 1980 and 2014, the number of diagnosed cases of diabetes in the United States has increased fourfold (from 5.5 million to 22 million),[7] and diabetes is now the seventh-leading cause of death in the United States.[8] Ninety-five percent of those afflicted by the condition have type 2 diabetes, which is preventable in most cases.[9] Just as alarming, the CDC estimates an additional 86 million American adults have prediabetes, which, without intervention, will develop into type 2 diabetes in fifteen to thirty percent of cases.[10] While type 2 diabetes was formerly uncommon in children—even earning the moniker “adult-onset diabetes”—in has since been developing in children at alarming rates and as young as 10 years old.[11] If these trends continue, researchers estimate that up to one-third of the U.S. population will have diabetes by 2050 (up from fourteen percent in 2010).[12]

III. Sugar’s Impact on Weight and Health

A recent University of California literature review found that a substantial majority of the highest quality studies demonstrate a statistically significant link between sugar consumption and obesity.[13] During hearings about New York City’s then-proposed “Portion-Cap-Rule,”[14] an esteemed and extensive list of medical and nutritional professionals, academics, and organizations supported the regulation, noting that “soda . . . is the single most important contributor to weight gain.”[15] With every additional sugary beverage a child drinks daily, his or her odds of becoming obese increase by 60 percent.[16] In addition to contributing to weight gain and obesity, higher rates of SSBs consumption is associated with higher risks of chronic illnesses like metabolic syndrome and type 2 diabetes.[17] One meta-analysis estimates that 8.7% (1.8 million) of new type 2 diabetes diagnoses over the next 10 years will be solely attributable to SSB consumption.[18]

To reverse these trends, the World Health Organization, the Institute of Medicine, and the FDA have all recommended that people consume no more than 10% of their daily calories from added sugars.[19] At present, however, Americans consume an average of 16% of their total daily calories from added sugars[20]—an increase of 30% since 1977.[21] Reducing Americans’ consumption of SSBs and added sugars more generally is therefore critical to help combat the obesity and type 2 diabetes epidemics.

IV. Psychological Barriers to Individual Responsibility

If reducing sugar is the goal, an oversimplified policy solution might be to ban SSBs or put strict legal limits on added sugars in processed foods. But this approach would be politically untenable not only for the industry, but also to those consumers who wish to consume sweet foods or beverages in moderation. Conversely, the government could simply inform the public that sugar is bad for their health, and leave it up to individuals to act on that information. Americans are no stranger to this narrative and the logic that appears to underpin it—if we are the makers of our own fates, any negative outcome like obesity can only result from some personal failing like gluttony, laziness, or lack of discipline.[22] But this view ignores the reality that eating behaviors are not just the result of independent choices by rational actors; they are also influenced by powerful environmental factors.[23]

With regard to SSBs specifically, successful marketing, low product cost, increased portion sizes, and high availability contribute to high levels of consumption.[24] For decades, inflation has outpaced the price of SSBs, making them increasingly inexpensive for the average consumer.[25] Meanwhile, beverage companies spend $492 million annually on youth-directed marketing.[26] Additionally, sugar may also induce some of the same addictive effects on brain chemistry as drugs like cocaine.[27] Food producers exacerbate these chemical vulnerabilities with purposeful formulation of their recipes. As one food engineer integral to Dr. Pepper’s operations recounts, companies find a consumer’s “bliss point” where the product will “pique the taste buds enough to be alluring but [doesn’t] have a distinct, overriding single flavor that tells the brain to stop eating.”[28]

V. Enter: Nudges

If neither the laissez-faire approach of pure personal responsibility, nor the strong-handed approach of sugar limits is effective, what policy solutions might form an effective middle-ground? Here, the sugar crusade can borrow from “libertarian paternalism.” This umbrella of theories recognizes that truly “free choice” is illusory, because there is always some existing choice architecture influencing people’s decisions.[29] Given that reality, policy interventions that simply change the default options in that architecture can “nudge” people into more favorable outcomes, while preserving at least as much “free choice” as the original orientation.[30] Each of the policy tools that follow are, therefore, aimed at correcting some default aspect of the choice architecture for U.S. consumers to yield lower sugar consumption.

a. Taxes on SSBs

Most academic discussion on nudges tend to omit taxes because directly changing financial incentives is usually the line theorists draw between libertarian and full blown paternalism; but, they are worth mentioning here both for their emergent popularity in government attempts to curb SSB consumption and because they might still have powerful secondary effects on consumer behavior.[31] In this context, a government would place an excise tax on SSBs that is charged to manufacturers or producers, an expense that is often passed on to consumers.

A tax of this nature has three main benefits. First, it increases the currently low cost of SSBs—relative to non-sugary beverages like unsweetened teas or water—to the point that it influences consumer behavior.[32] Second, the tax leads consumers who still do purchase an SSB to internalize (through payment of the tax) the externalities (public health costs) of their consumption. Third, earmarked revenue from the tax can be put toward other efforts to reduce sugar consumption or improve health, like education campaigns or improved school meals.[33] Some argue these taxes are regressive—that they disproportionately impact low-income Americans—[34]but this account fails to recognize that obesity is regressive. If the tax succeeds in improving consumption habits, its cost would be offset by personal gains from reduced healthcare costs and increased productivity (fewer days of work missed)—not to mention the intangible benefits of increased quality of life and reduced pain and suffering. For example, in 2012, healthcare expenditures for a person with diabetes were on average 2.3 times higher than expenditures for individuals without diabetes,[35] and researchers estimated that reduced productivity from diabetes cost the U.S. $78 billion in 2014.[36] With the increased prevalence of high-deductible healthcare plans[37] and with many low-income workers stuck working part-time jobs without paid time off,[38] reducing these burdens of sugar consumption could directly benefit individuals. Additionally, the revenue earmarked for benefits can be specifically funneled into low-income communities.

We have extensive examples of excise taxes on goods at all levels of government, and some precedent for SSB taxes specifically. Some products for which the federal government imposes excise taxes include alcohol, tobacco, fuel, and vaccines.[39] All 50 states also impose their own excise tax on tobacco.[40] Even some cities have the authority to impose taxes of this kind. Berkeley, for example, successfully passed an initiative to tax sugary beverages at 1 cent-per-ounce.[41]

These taxes have proven effective not only in experimental studies,[42] but also in practice. In just the first 10 months of its tax, Berkeley saw a 21 percent reduction in SSB consumption and raised $1.2 million for its general fund, leading the city council to earmark $1.5 million for the year toward community nutrition and health efforts.[43] Mexico and France have seen similar reductions in consumption after imposing SSB taxes of their own.[44] Recent high profile SSB taxes were adopted in 2016 in Boulder, San Francisco, Oakland, Albany, Cook County, Philadelphia,[45] and the United Kingdom.[46] Public health experts can continue to examine consumption data from this diverse array of cities, counties, and countries to guide future policy efforts.

b. Size restrictions

The “Portion-Cap-Rule” in New York City, which would have banned most distributors in the city from selling sugary beverages in excess of 16 oz., would have mitigated the concerns about default options and portion sizes.[47] The regulation would have forced those considering more than 16 oz. to make a more conscious choice by making them purchase a second drink or get a refill.[48] New York’s Department of Health and Mental Hygiene produced a report citing numerous studies showing that consumers largely gravitate toward a default option.[49] Other cited studies further demonstrate that once someone has received a larger portion size, they not only consume more than if they had received a smaller portion, but also underestimate the calorie content of that portion.[50] In the existing choice architecture, most distributors either give options of 16, 24, or 32 oz. drinks, but price them so that the 32 oz. option is the best “value”, and typically default the consumer into a 24 oz. drink. The evidence cited by the DOHMH shows that the existing choice architecture has a strong impact over which size is “chosen,” how many calories of it are consumed, and how much the consumer will underestimate this calorie total. Although New York’s law was ultimately struck down in court, it was not for any substantive reason; it was invalidated only because the city inappropriately passed the law through their Department of Health, not the City Council.[51]

c. Warnings

A warning could be either graphic or textual. A graphic warning could provide some image that triggers the consumers’ attention that this product contains a high amount of sugar. A textual warning could also include language, like tobacco, that lists the risks of consuming a high-sugar product.

On August 20, 2014, the New York State Assembly introduced the Sugar-Sweetened Beverages Safety Warning Act, which would require a textual “safety warning labeling” on all SSBs, reading, “Drinking beverages with added sugar contributes to obesity, diabetes, and tooth decay.”[52] A nearly identical bill in the California Senate recently failed to make it out of committee.[53]

One model for a graphic warning is the New York City Board of Health’s recent Sodium (Salt) Warning rule, which requires chain restaurants to post a graphic image of a salt-shaker inside a “warning-triangle” next to food items on menus and menu boards if they contain more than the daily recommended limit of sodium, 2,300 mg.[54]

Graphic and text warnings trigger people’s scarce attention and counteract the natural human tendency toward unrealistic optimism.[55] Countering the optimism that consumers feel toward health outcomes of SSB consumption is especially important when industry actors tend to mitigate concerns over the beverages by stressing “moderation in . . . consumption habits balancing calorie intake from all food and beverage sources, and the importance of exercise.”[56] Preliminary research suggests textual warnings can cause fewer parents to choose SSBs for their children and increase reported belief that SSBs were less healthy for their children.[57]

d. Front of Package Information

In 2010 and 2011 the Institute of Medicine (IOM), at the direction of the FDA, produced two separate reports examining which types of Front of Package (FOP) labeling models would best enable consumers to make healthier choices.[58] The IOM found that the best scheme would feature “negative” nutrient information: calories, saturated and trans fat, sodium, and sugars. Further, the report noted the information should be presented in a manner that was: simple – easy to understand; interpretive – put judgments in context; and scaled – indicate good, better, and best.[59] This theory could be operationalized by noting under individual nutrients whether they are “low” or “high” in a given serving. This is similar to “traffic light” schemes that have been shown effective in studies where products display the nutrient in either green or red.[60] The United Kingdom implemented a similar scheme in 2013.[61]

However, seeing that the IOM and the FDA were showing interest in overhauling FOP labeling, the Grocery Manufacturers Association released its own “Facts up front” scheme that included not only the IOM-recommended “negative” nutrients, but also “positive” information like vitamins, minerals, and fiber content.[62] Their model also omitted any visual judgments about “low” or “high” amounts of nutrients in a product.

By ignoring the IOM recommendations, this model is more complicated and serves more as a marketing tool than a public health policy. The U.S. Government has thus far avoided moving forward with the Front of Package scheme in the IOM report, but if they choose to preempt “Facts up front” by making their own scheme mandatory, they could see a drop in consumption of sugar, among other nutrients.

VI. Conclusion

Each of the above policy tools seeks to change existing defaults in our food system that currently—whether intentionally or by accident—drive overconsumption of sugar. By changing these defaults, the government would empower people to make these decisions for themselves, but in an environment that would more likely yield a favorable result. Although many of the experimental and observational results of these policies are still preliminary, they point to substantial reductions in American sugar consumption. Given the gravity of the obesity epidemic, policymakers may find it helpful to assess whether any of these options makes sense for their particular constituency by using existing models for comparison.


[1] J.D. Candidate, Harvard Law School, 2017; B.A., U.C. Santa Barbara. I owe thanks to the Harvard Law & Policy Review Online team for their excellent edits and comments on the article, as well as to Emilie Aguirre for her helpful feedback on the substance of the article.
[2] Ctrs. for Disease Control & Prevention, Obesity Prevalence Maps, http://www.cdc.gov/obesity/data/prevalence-maps.html (last updated September 11, 2015).
[3] Id.
[4] Id.
[5] Harvard School of Public Health, Health Risks: Weight Problems Take a Hefty Toll on Body and Mind, http://www.hsph.harvard.edu/obesity-prevention-source/obesity-consequences/health-effects/.
[6] Robert H. Eckel et al., Obesity and Type 2 Diabetes: What Can Be Unified and What Needs to be Individualized?, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3206399/.
[7] Number (in Millions) of Civilian, Noninstitutionalized Persons with Diagnosed Diabetes, United States, 1980– 2014, Ctrs. for Disease Control & Prevention (Dec. 1, 2015), https://www.cdc.gov/diabetes/statistics/prev/national/figpersons.htm.
[8] National Diabetes Statistics Report, 2014, Ctrs. for Disease Control & Prevention 7 (2016), https://www.cdc.gov/diabetes/pubs/statsreport14/national-diabetes-report-web.pdf.
[9] Id. at 9.
[10] About Prediabetes & Type 2 Diabetes, Ctrs. for Disease Control & Prevention (July 19, 2016), https://www.cdc.gov/diabetes/prevention/prediabetes-type2/index.html.
[11] National Diabetes Education Program, Overview of Diabetes in Children and Adolescents 3 (2014), http://ndep.nih.gov/media/Overview-of-Diabetes-Children-508_2014.pdf.
[12] James P. Boyle et al., Projection of the year 2050 burden of diabetes in the US adult population, Population Health Metrics (2010), https://pophealthmetrics.biomedcentral.com/articles/10.1186/1478-7954-8-29.
[13] Dept. of Health and Mental Hygiene Board of Health, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code 3–4 (2012), http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf.
[14] Also known colloquially as the “Soda Ban.”
[15] Id.
[16] Dept. of Health and Mental Hygiene Board of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code (2012).
[17] Malik et al., Sugar Sweetened Beverages and Risk of Metabolic Syndrome and Type 2 Diabetes: a Meta-Analysis (2010), http://www.ncbi.nlm.nih.gov/pubmed/20693348.
[18] Fumiaki Imamura et al., Consumption of sugar sweetened beverages, artificially sweetened beverages, and fruit juice, and incidence of type 2 diabetes: systematic review, meta-analysis, and estimation of population attributable fraction (2015), http://www.bmj.com/content/351/bmj.h3576.
[19] Food and Drug Administration, Factsheet on the New Proposed Nutrition Facts Label (2015), http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm387533.htm; Health.gov, Dietary Guidelines for Americans: Figure 2-9 (2015), http://health.gov/dietaryguidelines/2015/guidelines/chapter-2/a-closer-look-at-current-intakes-and-recommended-shifts/#figure-2-9.
[20] Id.
[21] Obesity.org, U.S. Adult Consumption of Added Sugars Increased by More than 30% over Three Decades (Nov. 3, 2014), http://www.obesity.org/news/press-releases/us-adult.
[22] Puhl et al., The Stigma of Obesity: A Review and Update 941–64, Obesity, Vol. 17(5) (2009).
[23] Koplan & Dietz, Caloric Imbalance and Public Health Policy 683–85, JAMA, Vol. 282(16) (1999).
[24] Woodward-Lopez et al., To what Extent have Sweetened Beverages Contributed to the Obesity Epidemic? 1–11, Public Health Nutrition, Vol. 23 (2010).
[25] Brownell & Frieden, Ounces of prevention – The public policy case for taxes on sugared beverages 1805–1808, New England Journal of Medicine, Vol. 360(18) (2009).
[26] Federal Trade Commission, Marketing Food to Children and Adolescent (2008), http://www.ftc.gov/os/2008/08/P064504foodmktingreport.pdf.
[27] Serge Ahmed et al., Sugar Addiction: pushing the drug-sugar analogy to the limit, Current Opinion in Clinical Nutrition and Metabolic Care, available at http://www.ncbi.nlm.nih.gov/pubmed/23719144 (July 2013); see also Masroor Shariff, Neuronal Nicotinic Acetylcholine Receptor Modulators Reduce Sugar Intake, PLOS One, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0150270 (Mar. 2016).
[28] Michael Moss, The Extraordinary Science of Addictive Junk Food, The New York Times (Feb. 2013), http://www.nytimes.com/2013/02/24/magazine/the-extraordinary-science-of-junk-food.html?_r=0.
[29] Cass Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 2 (2014)
[30] Id.
[31] Matteo Gallizi and George Loewenstein, The Soda Tax as a Measure for Sustained Change in Consumption, Voxeu.org (June 14, 2016), http://voxeu.org/article/beyond-nudging-case-uk-soda-tax.
[32] Yale Rudd Center, Rudd Report: Sugar-Sweetened Beverage Taxes 3 (Oct. 2012), http://www.uconnruddcenter.org/files/Pdfs/Rudd_Policy_Brief_Sugar_Sweetened_Beverage_Taxes(1).pdf (“experiments show that when healthier foods are less expensive than unhealthy foods, people are more likely to purchase the healthy items”).
[33] Id. (Noting that sales of SSBs decreased an additional 18% when a tax was coupled with an educational campaign about the positive health impacts of reducing consumption).
[34] See, e.g., Bernie Sanders, A Soda Tax Would Hurt Philly’s Low-Income Families, PhillyMag (Apr. 24, 2016), http://www.phillymag.com/citified/2016/04/24/bernie-sanders-soda-tax-op-ed/.
[35] Am. Diabetes Ass’n, Economic Costs of Diabetes in the U.S. in 2012, Diabetes Care, vol. 36, 1033, 1040 (Apr. 2013).
[36] Timothy M. Dall et al., The Economic Burden of Elevated Blood Glucose Levels in 2012: Diagnosed and Undiagnosed Diabetes, Gestational Diabetes Mellitus, and Prediabetes, Diabetes Care, vol. 37, 3172, 3172 (Dec. 2014).
[37] Tracy Seipel, While Obamacare Premiums Rise, Employer-Based Health Plans Shift to Higher Deductibles, The Mercury News (Oct. 23, 2016), http://www.mercurynews.com/2016/10/23/while-obamacare-premiums-rise-employer-based-health-plans-shift-to-higher-deductibles/.
[38] Michael Madowitz et al., The State of the U.S. Labor Market: Pre-January 2017 Jobs Release, Ctr. for American Progress (Jan. 5, 2017), https://www.americanprogress.org/issues/economy/news/2017/01/05/295945/the-state-of-the-u-s-labor-market-pre-january-2017-jobs-release/.
[39] D. Becker, U.S. Master Excise Tax Guide Sixth Edition “Introduction”, CCH Editorial Staff Publication (2008).
[40] American Cancer Society, State Cigarette Excise Tax Rates, http://www.acscan.org/tobacco/taxes/#map.
[41] Mike Esterl, Berkeley Voters Approve Tax on Sugary Drinks, The Wall St. J. (Nov. 2014), http://www.wsj.com/articles/berkeley-voters-approve-tax-on-sugary-drinks-san-francisco-ban-falls-short-1415189224.
[42] Allison Aubrey, Could a 6-Cent Tax Sour Us On Soda and Sugary Drinks?, NPR (June 3, 2014), http://www.npr.org/sections/thesalt/2014/06/03/318223640/could-a-six-cents-tax-sour-us-on-soda-and-sugary-drinks (suggesting that a tax as low as $0.04 per-ounce could lead to a reduction in SSB consumption).
[43] Emilie Raguso, Council Approves $1.5M to Fight Soda Consumption, Berkeley Side (Jan. 2016), http://www.berkeleyside.com/2016/01/20/berkeley-council-approves-1-5m-to-fight-soda-consumption/.
[44] Id.
[45] Bruce Y. Lee, 5 More Locations Pass Soda Taxes: What’s Next for Big Soda?, Forbes (Nov. 14, 2016), http://www.forbes.com/sites/brucelee/2016/11/14/5-more-locations-pass-soda-taxes-whats-next-for-big-soda/#4af41bf8193f.
[46] Nick Triggle, Sugar Tax: How Will it Work?, BBC News (Mar. 16 2016), http://www.bbc.com/news/health-35824071.
[47] Article 81 of the New York City Health Code, available at http://www.nyc.gov/html/doh/downloads/pdf/about/healthcode/health-code-article81.pdf.
[48] Dept. of Health and Mental Hygiene Board of Health, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code 7–8 (2012), http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf.
[49] Id. at 6.
[50] Id. at 5.
[51] Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (N.Y. 2014).
[52] New York State Assembly, Bill A2320B, Sugar-Sweetened Beverages Safety Warning Act, available at https://www.nysenate.gov/legislation/bills/2015/a2320/amendment/b (in committee).
[53] California State Senate, SB-203, Sugar-Sweetened Beverages: Safety Warnings, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB203.
[54] Dept. of Health and Mental Hygiene Board of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code (2012).
[55] Sunstein, supra note 29, at 5.
[56] American Beverage Association, Comments in response to the 7th Meeting of the DGAC (Dec. 2014).
[57] Christina Roberto et al., The Influence of Sugar-Sweetened Beverage Health Warning Labels on Parents’ Choices, Pediatrics (Jan. 2016), http://pediatrics.aappublications.org/content/early/2016/01/13/peds.2015-3185.
[58] Ellen Wartella et al., Front-of-Package Nutrition Rating Systems and Symbols: Promoting Healthier Choices, National Academies of Sciences (2012), http://www.nap.edu/catalog/13221/front-of-package-nutrition-rating-systems-and-symbols-promoting-healthier.
[59] Id.
[60] Anne Thorndike et al., A 2-Phase Labeling and Choice Architecture Intervention to Improve Healthy Food and Beverage Choices (July 2011), http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2011.300391.
[61] National Health Service, Food Labels, http://www.nhs.uk/Livewell/Goodfood/Pages/food-labelling.aspx.
[62] Facts up Front, Grocery Manufacturers Association and Food Marketing Institute, http://www.factsupfront.org/.

 

New Resource from CHLPI and Feeding America for Food Banks as Partners in Health Promotion

The Center for Health Law and Policy Innovation of Harvard Law School (CHLPI), together with Feeding America, the nation’s largest network of food banks and pantries, announce the release of Food Banks as Partners in Health Promotion: How HIPAA and Concerns about Protecting Patient Information Affect Your Partnership.

Health care providers and payers are increasingly realizing that food insecurity and unmet nutrition needs play a large role in the health outcomes of their patients and beneficiaries. When a patient is hungry, worried about running out of food, or unsure of where her or her family’s next meal will come from, that patient is less likely to be able to follow the medical advice of her health care provider. Food insecurity is also correlated with an increased risk for Type 2 diabetes, and worse outcomes related to diabetes among patients who live with limited financial resources. Children in households that are food insecure fall ill more frequently, are hospitalized more often, and take longer to recover after becoming ill. In short, food insecurity is a key social determinant of health.

Food banks and health care providers and payers are forming innovative partnerships to address the nutrition needs of these patients, from providing diabetes-appropriate boxes of food to people with type 2 diabetes to being on site at a clinic in order to actively reach out to families identified as food insecure and give both immediate help accessing healthy food.

However, the efficacy of some of these partnerships is tested by concerns about the ability for health care providers to share relevant patient information with food banks due to HIPAA obligations. The new resource from CHLPI and Feeding America provides an overview of HIPAA rules and regulations and how they affect the activities that food banks and the health care system conduct together. It also helps food banks understand how some of their new health care-related activities might make the food bank itself obligated to comply with HIPAA and looks at the types of resources food banks will need to invest if they hope to adopt information management practices that are HIPAA-compliant.

This resource gives food banks and other community-based service providers the critical HIPAA information they need to become routine health care partners in the effort to address social determinants of health.

Round-up of Media Coverage for FLPC’s Blueprint for a National Food Strategy

On March 13, 2017, the Harvard Law School Food Law and Policy Clinic (FLPC) and the Center for Agriculture and Food Systems (CAFS) at Vermont Law School released the Blueprint for a National Food Strategy. The report marks the culmination of an 18-month collaborative project to conduct an in-depth examination of the potential for creating a national food strategy in the United States. The report finds that the United States could reap significant rewards from a strategy -- a strategy provides a rare opportunity to account for the totality of the U.S. food system and identify concrete goals and action steps for strengthening this vital system overall. In addition, the report identifies policy mechanisms to aid the United States in the creation of such a strategy. Below is media coverage of the report.


The Daily Intake, March 15: More Calls for a National Food Safety Strategy

Vermont Public Radio, March 15: Vermont Law School, Harvard Release 'Food Strategy Blueprint

Growing Produce, March 15: Group Wants To Streamline Food Safety Regulations

The National Law Review, March 15: More Calls for a National Food Safety Strategy

FoodNavigator.com, March 16: The US food system is inefficient, researchers say, so they created a strategy blueprint

Food Politics by Marion Nestle, March 22: Blueprint for a National Food Strategy

Reflecting on my work with the Food Law and Policy Clinic

Originally published by Harvard Law School's Office of Clinical and Pro Bono Programs on March 24, 2017.

Written by Drake Carden, J.D. ’17

I have always taken an interest in food and how our food system operates, but had not done anything pertinent to the field outside of some light reading and Netflix documentary binge-watching. In the Spring of 2016, I had the pleasure of taking Emily Broad Leib’s Food Law class. This prompted my interest in enrolling in the clinic the next fall. I was placed on two projects: The Farm Bill Consortium and the Blueprint for the National Food Strategy.

The Farm Bill project was just taking off, and I specifically got to work on the Crop Insurance Title (Title XI) of the Farm Bill. My role consisted of written and interview-based research (which included a trip to rural Iowa!) to help formulate policy recommendations for the next Farm Bill with respect to Title XI. I worked closely with another teammate to coordinate our recommendations around commodities as well.  I also got the chance to travel to the Food Law Student Leadership Summit in Des Moines, Iowa, where I met a lot of students and faculty from the Consortium partner schools. The project is now moving in an exciting direction, where they will combine recommendations among all coordinated groups working on other Titles of the Farm Bill. I look forward to seeing the final product!

In a bit of contrast, the National Food Strategy project was nearing its completion. This project entailed a white paper written in conjunction with Vermont Law School, and I came on board to help with final edits to both the paper and the appendices of supporting national and international strategies. Just last week, I received a copy of the final paper. It was great to be able to see a finished product, and I was very proud of the work of the entire team!

The Food Law and Policy Clinic provided me a valuable lesson in project management and team-building. I enjoyed working with Emily, the fellows (shout out to Lee and Emma!), and my classmates. I also enjoyed focusing on policy-making, something that is rarer in black letter law classes. And I got to work with interesting, smart, kind and patient people. Mission accomplished: I cannot say enough good things about the clinic staff!

Specialty Care Policy Analysis and Development in Action: An Update

On March 1, CHLPI staff and students traveled to Louisville, KY to facilitate the Tackling Lung Cancer in Kentucky Policy Workshop, a discussion among experts and advocates on what could be done at the state level to improve lung cancer prevention and treatment. Participants in the workshop from across the Bluegrass State developed concrete action plans around two policy priorities identified by KY stakeholders: (1) increasing the tobacco excise tax and (2) supporting active legislation that would improve access to tobacco cessation medication and counseling. Over the course of the day, workshop attendees phoned legislators to voice their support for the bill, activated their personal and professional networks to support the bill, and networked with other bill supporters to plan for effective implementation of the future law. CHLPI is thrilled to report that Kentucky S.B. 89:  An Act relating to health benefit coverage for tobacco cessation treatment, passed 35-2 in the Senate, 90-1 in the House, and was signed into law by the Governor on March 21, 2017!

This means that health insurer operating in the state, including Medicaid, MUST cover all FDA-approved tobacco cessation medications and all tobacco cessation services recommended by the United States Preventive Services Task Force, including individual, group, and telephone cessation counseling. These medications and services must be covered by every insurer without annual or lifetime limits, and without requiring co-payments, co-insurance, or deductible.

This law will ensure that more people across the state will be able to access critical services and medications to help them quite smoking, which is the number one risk factor for lung cancer. Kentucky has the highest rate of lung cancer in the country.

Congratulations to all of our on-the-ground partners in the state on a big win in the fight for every Kentuckian to live cancer-free!

New York City Food Policy Center
 Interviews FLPC Director Emily Broad Leib

Alexina Cather, MPH, Deputy Director and Managing Editor at New York City Food Policy Center recently interviewed FLPC Director Emily Broad Leib for their blog.  Read the interview, published March 22, 2017, below.

Policy Analysis and Development in Action: CHLPI Co-Sponsors the Kentucky Cancer Summit

This blog post was written by Jacob Barrera, a current student in the Health Law and Policy Clinic. Jacob is pursuing his Masters of Public Health from the Harvard T.H. Chan School of Public Health.

 

Nothing like a tornado watch to kick off the Tackling Lung Cancer in Kentucky Policy Workshop! Whether it was falling trees or flooded roads – nothing could stop the 75 participants from coming together on March 1 in Louisville to talk about next steps for those with and/or at risk of developing lung cancer in the Bluegrass State.

The workshop opened with an overview of the rapidly shifting federal health care landscape, delivered by Center for Health Law & Policy Innovation (CHLPI) of Harvard Law School students Jacob Barrera (Harvard T.H. Chan School of Public Health ’18) and Mike Cunniff (Harvard Law School ’18). Presenters focused on what’s at stake for Kentuckians if the Affordable Care Act (ACA) is repealed. A particular area of concern for potential ACA-repeal is the fate of the barrier-free insurance coverage for critical tobacco cessation services and medications and lung cancer screening that many Kentuckians currently have access to under Obamacare.

After an overview of federal health policy, Emily Beauregard of Kentucky Voices for Health presented an overview of the Kentucky health policy landscape, with a focus on the fate of Kentuckians enrolled in Medicaid if ACA repeal and replace proposals were successful. Kentucky expanded Medicaid in 2014 under the leadership of then-Governor Steve Beshear. Changes to the Medicaid program proposed at the federal level and at the state level by Governor Matt Bevin could impact all of the 1,220,788 people currently enrolled in Medicaid and the Children’s Health Insurance Program (CHIP) in Kentucky.  Ms. Beauregard emphasized that because Medicaid expansion has been so successful in reducing the number of uninsured individuals in Kentucky, the state has been able to divert funds previously reserved for supporting charity care for the uninsured to other uses. This means that if and when Medicaid excludes more individuals under new rules, the newly uninsured will fall back on a safety net that is significantly weaker than it was prior to 2014. Efforts to repeal the Affordable Care Act will therefore have quite a large impact on Kentucky.

Workshop participants then heard from Erica Palmer of the American Cancer Society Cancer Action Network (ACS CAN) and Heather Wehrheim of the American Lung Association on active bills relevant to lung cancer in the current legislative session. Ms. Palmer and Ms. Wehrheim coordinate the grassroots efforts to urge state legislators to support measures to: require insurers to cover tobacco cessation medications; require daycares to test for elevated levels of radon (exposure to radon is a major risk factor for lung cancer); and require all public school campuses throughout the state to be 100% tobacco-free.

Following a quick break to stretch our feet and to browse the exhibits in the LeRoy Neiman Gallery, participants listened to a panel discussion of five experts in their respective fields,  comprised of representatives from Freedom from Radon Exposure and Smoking in the Home (FRESH), ACS CAN, the Campaign for Tobacco Free Kids, and the University of Louisville’s Kentucky Cancer Program. These individuals highlighted priority areas for policy change relevant to lung cancer in Kentucky. They spoke about increasing the tobacco excise tax, directing funding from the excise tax to tobacco prevention and control activities in the state, reducing exposure to secondhand smoke and radon, combatting the stigma associated with smoking and lung cancer, and encouraging primary care providers to learn more about lung cancer through continuing medical education.

Following lunch and a presentation about how to organize around a policy priority, workshop participants were split into groups for a facilitated discussion about the priority areas for policy change outlined by the panel experts. The group was charged with narrowing the policy priorities down to two in an effort to delve into concrete next steps around advocating for immediate legislative change on these issues. In the end, requiring insurers to offer barrier-free coverage of cessation services (supporting the active Senate Bill 89) and increasing the tobacco excise tax surfaced as the two issues that the group democratically voted upon, with stickers, of course!

The table that I was seated at affectionately called Senate Bill 89 Bobbye’s Bill, after Bobbye Gray from the KY Tobacco Prevention and Cessation Program, who was seated at my table. Bobbye has been working to get the bill passed for the last six years, working with her legislative champion, Kentucky Senator Julie Raque Adams (R-36th District). Senator Adams has been working tirelessly to get the bill passed before the close of the legislative session on March 8. As of March 7, the bill had passed the Senate, moved out of Committee in the House, and was waiting for a hopefully favorable House vote before moving onto Governor Bevin’s desk for his signature.

Being part of the Kentucky Cancer Summit allowed me to not only learn a new state’s health care landscape, but it also allowed for me, as an outsider, to observe potential challenges that these lung cancer champions face in this uphill battle. The room was filled with passionate people ready to fight for the rights of lung cancer patients. Participants put forward many excellent and creative ideas about how to approach these policy priorities and engage with stakeholders on these issues throughout the state.  However, one of the challenges that arose is the need to coalesce under an evidence-based political strategy to help overcome many of the obstacles to policy change, especially around increasing the tobacco excise tax. Although a challenge, it is also an opportunity for further connection and coordination as a group. A next step in the fight for health equity for all those who are low-income and are considered vulnerable, including those who have or are at risk of developing lung cancer, may be the hiring of a political strategist who can help move lung cancer into the issue-attention cycle for Kentucky legislators, turning the increase of the tobacco excise tax into a more urgent issue that requires immediate attention.

FLPC Calls for a National Food Strategy with the Release of New Report

The Harvard Law School Food Law and Policy Clinic (FLPC) and the Center for Agriculture and Food Systems (CAFS) at Vermont Law School are excited to announce release of a groundbreaking report, Blueprint for a National Food Strategy. Today’s release marks the culmination of an 18-month collaborative project to conduct an in-depth examination of the potential for creating a national food strategy in the United States. The report finds that the United States could reap significant rewards from a strategy -- a strategy provides a rare opportunity to account for the totality of the U.S. food system and identify concrete goals and action steps for strengthening this vital system overall. In addition, the report identifies policy mechanisms to aid the United States in the creation of such a strategy.

The Blueprint’s argument for greater coordination and efficiency within the food system is timely. Last month, the Government Accountability Office (GAO) released a congressional report calling for the creation of a national food strategy in order to reduce fragmentation in the federal food safety oversight system. Four senators then called on the Trump Administration to implement the recommendations of the report in order to safeguard public health and reduce the health costs associated with foodborne illness (nearly $36 billion annually). Their letter also drew attention to the regulatory chaos that pervades our food system: “The safety and quality of the U.S. food system is governed by a highly complex system that has evolved on a piecemeal basis over many decades….[t]the result is a fragmented legal and organizational structure.” Indeed, one of the Blueprint’s key findings is that a national food strategy could reduce regulatory overlap and inefficiency, a priority of the new Administration.

The Blueprint examines two sets of important precedents for a U.S. food strategy: national food strategies from other countries and U.S. national strategies for a variety of other issues. The report finds that other countries have developed national food strategies in response to food systems challenges similar to those faced by the United States. Such challenges include ensuring access to healthy food; promoting economically and environmentally sustainable food production; and harmonizing the work of numerous agencies that touch the food system. Domestically, the federal government has created a number of national strategies to promote greater collaboration and coordination across government in order to effectively tackle a range of complex, interdisciplinary issues. Examples of these strategies can be found on the Blueprint project website.

The project also seeks to spark dialogue and debate around the concept of a national food strategy. In November, FLPC co-hosted an event with the Union of Concerned Scientists to discuss the potential for a national food strategy. FLPC Director Emily Broad Leib offered her insights, alongside panelists Mark Bittman, Ricardo Salvador, and Kat Taylor. Over the course of the project, researchers at FLPC and CAFS conducted interviews with more than 30 food system thought leaders and videos of some of these interviews can be found on the project website. The report itself has been released in an interactive format that includes feedback prompts for readers such as “What objectives would you prioritize if the United States were to develop a national food strategy?” Responses will be collected and posted to the site so readers can view the perspectives of others and begin a national dialogue.

The full, interactive report is available for download on the Blueprint for a National Food Strategy website and in FLPC's publication library.

Helping Consumers in a Changing Health Policy Landscape: A Report from Health Action 2017

Last month, CHLPI attended Families USA’s annual health advocacy conference, Health Action 2017, in Washington D.C.  Given the tumultuous path of health policy in today’s world, the conference’s goal was to prepare health care advocates as they seek to defend and bolster progress that has been made since the implementation of the Affordable Care Act.  CHLPI brought along student Seán Finan, who is pursuing an L.L.M. from Harvard Law School and working in the Health Law and Policy Clinic to gain insight into the ideas and strategies that health advocates are using to protect access to affordable care. He prepared brief blog posts detailing their perspectives on workshops they attended during the conference.


“I can sign my dog up for Medicare now, right?”

The laugh spread through the room. But there was pain too and a grimace on the face of the health care navigator from Tennessee. “I get consumers coming in to me all the time, saying things like that.” He wasn’t the only one. The room was full of navigators and health care advocates and all of them had heard similar things. In the age of alternative news, fake news, alternative facts and even fake facts, consumers (and advocates) can find it difficult to spot the truth. Other gems included:

“The CHIP program? How can you support having children microchipped?!”

“I heard that signing onto Medicaid will make me a target for deportation”

And the perennial favorite:

“I love the ACA but I’m so glad we’re finally going to repeal Obamacare”.

I was at the “Helping Consumers in a Changing Health Care Policy Landscape” workshop at Health Action 2017. Sheili Quenga, Director of Programs for the Palmetto Project in South Carolina and Doug Goggin-Callahan, Vice-President of Compliance & Regulatory Affairs at Independence Care System were on hand to share strategies for fighting the gush of false information.

The speakers acknowledged that many of these soundbytes are easily dismissed by advocates. Advocates have the knowledge and the experience to sort the crazy ramblings from the serious threats. However, the health care landscape is changing so rapidly that the average consumer finds it very difficult to keep up. When something pops up on their Twitter or Facebook feeds, they may lack the tools to analyse and understand what they’re seeing. This can lead to confusion and panic. The first step in the fight, the speakers emphasized, it is to equip consumers with the tools to “diagnose” what they’re seeing.

First, consumers need to be able to distinguish between the half-baked idea of a lone nut with access to the internet and a serious policy proposal from a credible source. Advocates should try to help consumers understand the hierarchy of health policy. First comes the idea, then the Tweet, then the Facebook post, then the serious opinion. After that comes the considered political position, the policy proposal and the draft bill. Very little that shows up in the first, early stages of debate will make it into a final enacted law, and even when it does, the legislative process can take years. Advocates should try to reassure consumers that yesterday’s tweet will not be tomorrow’s ACA replacement package.

Second, when something that looks like a genuine proposal does come along, consumers need to be able to determine how seriously they should take it. There are a few simple rules of thumb for this. Length is a good one: something that seems too short to have any substance probably doesn’t. The speakers pointed to the Patient Freedom Act of 2017 as an example. The draft bill was proposed by Republican Senators Bill Cassidy and Susan Collins early this year, as a full replacement for the ACA. The ACA was one of the longest and most complicated piece of legislation in Congressional history. It clocked in at almost 1,000 pages. Its implementing regulations were three times that. The Patient Freedom Act comes to a grand total of 73 pages.

Similarly, consumers can look at the predicted time to implementation for a replacement proposal. The ACA was signed into law in 2009 but, because of its complexity, it was scheduled to enter into force gradually, one piece at a time. The last piece didn’t come into force until 2014. Replacing the ACA would require major changes at every level of State and Federal government. A proposal that does not take the magnitude of this task into consideration in its timeline is unlikely to gain traction.

Finally, when evaluating proposals, advocates should be keenly aware of the difference between the “stated intent” of a law and the actual effect. The titles and headlines thrown around can be extremely misleading. The speakers pointed out that despite the headline being one of “patient freedom”, the proposal of Senators Cassidy and Collins focussed primarily on reforming the insurance market from the point of view of the State.

Advocates and consumers alike should to remember that a position is not a policy, much less a law. Careful analysis, patient evaluation and calm in the face of chaos is what we need now, more than ever.

Food Law and Policy Clinic of Harvard Law School and Natural Resources Defense Council Offer Federal Policy Recommendations to Increase Donation of Wholesome Food and Reduce the 40% of Food Wasted in the U.S.

Today, the Food Law and Policy Clinic of Harvard Law School (FLPC) and the Natural Resources Defense Council, released Don’t Waste, Donate: Enhancing Food Donations through Federal Policy presenting actions the federal government should take to better align federal laws and policies with the goal of increasing the donation of safe surplus food. Such food recovery has the potential to address the coupled issues of food waste and food insecurity in the United States, reducing the 40% of food that is wasted by instead getting edible food onto the plates of those in need.

In 2015, the federal government made reducing food waste a national priority through the announcement of a national goal of reducing food waste by 50 percent by 2030. In this report, FLPC and NRDC lay out a variety of policy opportunities that help the federal government meet this goal. The report identifies a number of federal laws and policies that strive to enhance food recovery, but fail to address the evolving needs of the food donation landscape or reduce unnecessary barriers to donation. For example, under current laws, if an entire manufacturing run of yogurt has a misprint with the incorrect net weight, the manufacturer would not benefit from the liability protections or tax incentives meant to encourage food donation unless every container were re-labeled with the correct number of ounces. These types of hurdles do nothing to protect consumers and everything to discourage food donations. Fortunately, simple and targeted changes to federal policy can reduce these senseless barriers.

Don’t Waste, Donate offers 16 actionable recommendations spanning five key areas of federal policy that can increase the amount of safe, wholesome food donated to those in need. The report recommends policy changes that would:

  1. Enhance liability protections for food donations
  2. Improve federal tax incentives for food donations
  3. Standardize and clarify expiration date labels
  4. Better monitor and encourage food donation by federal agencies
  5. Modernize and clarify food safety guidance for food donations

The report also includes an appendix targeting specific recommendations directly to Congress, the U.S. Food and Drug Administration, and the U.S. Department of Agriculture. If even a quarter of the recommendations in the report were embraced and implemented, millions of pounds of wholesome food would make it to those in need, rather than clogging up our landfills.

While an abundance of food is produced in the U.S., 40% of this wholesome, healthy, and safe food ultimately ends up in the landfill. At the same time, nearly 45 million individuals, including 13 million children, are food insecure, meaning that at some point during the year they lack access to a sufficient amount of food to lead an active, healthy lifestyle. Food donations provide a mechanism for immediate relief of food shortages and are an essential resource that food insecure individuals rely on to feed themselves. The recommendations in Don’t Waste, Donate can help the federal government better align federal laws and policies with the objective of increasing donation of safe surplus food to those in need.

Legislators and industry have already taken significant steps to implement some of the recommendations in the report. For example, the Food Marketing Institute and the Grocery Manufacturers Association, the two largest grocery industry trade groups, recently launched a nationwide voluntary standard for retailers and manufacturers to streamline date labels on consumer-facing food packages. Don’t Waste, Donate explains how standardizing date labels can impact donations of safe past-date foods and why federal action is needed to support and enshrine these voluntary standards, as well as ensure that safe past-date food is allowed to be donated. Additionally, recently introduced bipartisan federal legislation (The Food Donation Act of 2017) would enhance the liability protection for food donations in several ways that mirror the key policy changes recommended by the Food Law and Policy Clinic and NRDC in Don’t Waste, Donate.

Over the past few years, FLPC has released various reports with policy recommendations for reducing food waste targeted at various actors and levels of government. While this report focuses on federal policy, a previous report released in fall 2016, Keeping Food Out of the Landfill, proposed policy tools specific to states and localities. Additionally, FLPC plans to release another report next month on a range of opportunities to reduce food waste through the next U.S. Farm Bill, the largest piece of U.S. food and agriculture legislation. Given the strong bipartisan support for measures to reduce food waste, the emerging discussions around the 2018 Farm Bill are an exciting opportunity to include food waste in broader policy debates about the food system.

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