9th Circuit Reviews 2017 Decision on Sugar Warning Labels

Written by Ashley Maiolatesi, Spring 2019 Food Law and Policy Clinical student.

Over the past decade, the soda industry has faced waves of opposition from the public health sphere. For example, cities around the country have passed soda taxes, California and Connecticut proposed statewide soda taxes this year, and New York previously considered warning labels on cans and bottles. San Francisco attempted to add to this list of sugar-reduction policies in 2015 by enacting an ordinance requiring warning labels on certain advertisements for sugar sweetened beverages and soda. The ordinance has since been reviewed twice in court, with the most recent review sending positive signals to the public health sector.

At the beginning of the year, all members of the Ninth Circuit Court of Appeals sitting en banc reconsidered a prior three-judge ruling of the Ninth Circuit from 2017 regarding a San Francisco ordinance (American Beverage Association v. City and County of San Francisco, 871 F.3d 884 (9th Cir. 2017). The first-of-its-kind ordinance was passed in 2015 in an attempt to inform consumer purchasing habits and would have required certain advertisements, including billboards, promoting sugar-sweetened beverages to display a warning label over at least 20% of the advertisement area, stating: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” Industry trade groups, including the American Beverage Association, California State Outdoor Advertising Association, and California Retail Association filed suit shortly after the ordinance was enacted, alleging that the warning label infringed on their right to free speech.

In a decision published on January 31, 2019, the full Ninth Circuit affirmed the prior decision of the three-judge panel and placed a preliminary injunction on the San Francisco ordinance. Both the full court and the three-judge panel used a test from Supreme Court case Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), to determine whether the warning label required by the ordinance infringed on the industry trade groups’ free speech. In Zauderer, the Supreme Court used three considerations to determine whether advertising restrictions on free speech were “unjustified and unduly burdensome.” To do this, the Supreme Court considered whether the mandated warning label was 1) purely factual and uncontroversial,  2) reasonably related to a governmental interest (which some courts have interpreted as the government’s interest in preventing consumer deception), and 3) not unduly burdensome.

In considering the San Francisco ordinance, the initial three-judge panel in American Beverage Association v. City and County of San Francisco found that the advertisement required by San Francisco could be considered controversial and that the government interest did not justify the large requirement. In assessing whether the required warning label was “purely factual and uncontroversial,” the three-judge panel called into question the scientific data linking sugar sweetened beverage consumption to health risks. Although there is a wealth of scientific studies suggesting a link between soda and negative health outcomes, there are several scientific publications that came back inconclusive. In the end, the three-judge panel concluded that the San Francisco ordinance violated the First Amendment’s right to free speech by requiring an “unjustified and unduly burdensome” disclosure that was not “factual and uncontroversial,” and issued an injunction, stopping the ordinance from going into effect.

The most recent decision by the full Ninth Circuit came to the same ultimate decision to halt the ordinance, but in a way that is much friendlier to future public health efforts. While the three-judge circuit questioned the factual accuracy of the warning, the full Court decided the case based solely on whether the label required by the ordinance was unduly burdensome. After considering the size and format of the required disclosure, the Court determined that the ordinance’s requirement was overly burdensome for the government objective. The Court determined that the requirement of a prescriptive warning covering 20% of the advertisement was excessive to achieve the purpose of adequately informing the public of the health risks associated with the consumption of sugar sweetened beverages, as a smaller warning label could achieve the same effect. The Court noted, “We do not hold that a warning occupying 10 percent of product labels or advertisements necessarily is valid, nor do we hold that a warning occupying more than 10 percent of product labels or advertisements is necessarily invalid,” signaling that an ordinance with a smaller labeling requirement may pass constitutional muster.

The Court’s determination that the 20% of total advertisement area requirement is unduly burdensome was enough to hold the ordinance unconstitutional under the First Amendment. Therefore, the Court did not reach a determination on whether the content of the warning was “factual and uncontroversial.” Because the ordinance was unconstitutional on a different basis, the Court never examined the scientific nexus between sugar sweetened beverages and health risks, and the scientific data linking the two was not called into question as it had been by the initial three-judge panel. The recent holding by the full Ninth Circuit is far more favorable than its initial decision because it is based only on the size and format of the required warning, something easily amended, while leaving the scientific data linking adverse health impacts and sugar sweetened beverages intact.

Still, San Francisco refuses to back down and local officials say they will look into whether a different wording or design could pass constitutional muster. Following the Ninth Circuit’s decision in this case, it’s possible that we’ll see more cities create ordinances requiring disclosures or warning labels, though hopefully future warnings will be a bit more unobtrusive than those San Francisco initially had in mind.

New Research Highlights the Promise of Food is Medicine

Food insecurity and malnutrition are major drivers for poor health outcomes, population disparities and soaring health care spending. Roughly one out of every ten households in Massachusetts struggle with food insecurity, causing the state a staggering $1.9 billion in avoidable health care costs each year. Nutrition is increasingly recognized as a key social determinant of health because poor diet and food insecurity are connected to chronic health problems and frequent use of costly medical services.

A growing body of research shows that connecting medically complex individuals to Food is Medicine interventions, such as medically tailored meals (MTMs), is an effective and low-cost strategy to improve health outcomes, decrease expenditure of health care services, and enhance quality of life for these individuals.

Leading Food is Medicine researcher, Dr. Seth A. Berkowitz, in collaboration with Community Servings and the Massachusetts Department of Public Health, has released a new study that examined the association between participation in a medically tailored meals program and health care utilization and costs. This rigorous two-year cohort study, supported by Robert Wood Johnson’s Evidence for Action Program, is the largest study to date, with 499 MTM recipients, matched to 521 nonrecipients for a total of 1020 study participants.

Key Findings:

  • Participation in the medically tailored meals intervention was associated with significantly fewer inpatient admissions and fewer skilled nursing facility admissions.
  • The study model estimated that, had everyone in the matched cohort received MTMs, average individual monthly health care costs would have been $3,838 vs. $4,591, a difference of $753.
  • This difference translates to a net reduction of approximately 16% in average monthly health care costs.

The findings from this study align with Community Servings’ 2018 study on dually eligible Medicaid and Medicare beneficiaries, which also found a 16 percent net reduction in health care costs for participants who received medically tailored meals. The new study builds upon this earlier research, which was restricted to Medicare-Medicaid dual eligibles, by highlighting the potential benefits of medically tailored meals for a broader segment of the population, including participants in Medicare, Medicaid, and private insurance.

The ability to address nutritional needs in the context of health care is becoming increasingly important for improving population health, particularly for the nation’s most vulnerable groups. Food is Medicine interventions play an important role in managing and even preventing many of the chronic diseases that drive health care costs across the nation. Medically tailored meal programs represent promising interventions and deserve further study as we seek improve both health and the value of health care in the U.S.

CHLPI will continue to monitor developments on Food is Medicine research. Please check back with us regularly for news and updates!

My Experience at the 2019 Food Law Student Leadership Summit

Written by Oliver Brown, former FLPC clinical student and president of the Harvard Food Law Society.

This April, I attended the Food Law Student Leadership Summit (FLSLS) in hopes of broadening my knowledge of emerging legal issues in food law. I came to law school with an interest in food and agriculture reform. Through my participation in the Harvard Food Law & Policy Clinic, I was able to translate that passion into practical tools for advocacy. FLSLS offered a unique opportunity to further develop that skillset alongside professors, practitioners and students from around the country. 

Hosted at Georgetown University Law Center, Washington D.C. was an ideal setting to tackle the public policy and regulatory issues at the heart of food law. Experts like Laura MacCleery and Ricardo Carvajal shared how administrative reforms are enacted and offered insights into legislative advocacy. In a powerful keynote, Navina Khanna, Director of the HEAL Food Alliance, outlined her organization’s comprehensive Platform for Real Food—a roadmap towards a more sustainable food economy. With so many knowledgeable voices in conversation, the outlook for that vision felt a little more hopeful. 

Despite the incredible panels and seminars throughout the weekend (David Vladeck’s nerve-wracking lecture on deceit in food marketing was a particular highlight), I was most inspired by the network of passionate food advocates in attendance. It was an incredible opportunity to connect with other aspiring lawyers interested in this practice area. Hailing from law schools nationwide, students came with unique backgrounds and career goals. With food law touching so many legal disciplines (from labor, to intellectual property, to environmental sustainability), each participant brought their own perspective, and weighed how particular policies might impact the issues they cared about most. It was fascinating to see where our interests aligned and where they were in tension. Since the summit, I’ve developed a better understanding of the opportunities for progress in food system reform. I can identify points of collaboration, between farmers and animal-rights advocates, between commercial producers and food-waste NGOs. And most importantly, I have partners I can call on as we work towards meaningful change. 


Challenges and Opportunities in Organics Recycling

Originally published by Supermarket News on April 22, 2019. Written by Ryan Cooper.

Harvard Law School’s Food Law and Policy Clinic and the Natural Resources Defense Council estimate that up to 40% of all food produced in the United States is lost or wasted every year.

Meanwhile, Feeding America estimates that one out of every eight Americans, or more than 40 million people, is food-insecure (almost 13 million of whom are children). According to the Food and Agriculture Organization, each year consumers in wealthy countries allow almost as much food to go to waste (222 million tons) as the entire net food production of sub-Saharan Africa (230 million tons).

While these statistics could make the most optimistic among us waver, there is cause for encouragement among the data. 

Wednesday, April 24, is Stop Food Waste Day. Described as “a day of action and awareness to focus attention on the global epidemic of food waste and the solutions to combat the problem,” the goal behind this awareness campaign is to make individuals and businesses alike aware of their surplus food by not wasting anything for an entire day. This means everything from making a grocery list and taking it to the supermarket so you’re not tempted to pick something up that you don’t have a plan for, to making sure you chop up and serve every inch of a vegetable, to, of course, finishing everything on your plate.

Source reduction must come first

The greatest challenge and opportunity for food waste is source reduction. While composting is important — we’ll get into more details on this — when your business reduces the volume of food it produces or purchases in the first place, composting gets that much easier. This has the additional benefit of saving your business money.


The Food Recovery Hierarchy, developed by the Environmental Protection Agency (EPA), is designed as an inverted pyramid that clearly prioritizes the different actions that a business or individual can take to ensure that they prevent and, when not preventable, convert, wasted food to its highest possible use.

food_recovery_hierarchy.jpgWith each tier of the Food Recovery Hierarchy focusing on a different strategy for managing food waste, this top-down approach shows that the highest tier in the food recovery pyramid is source reduction — the act of reducing the volume of surplus food being generated in the first place.

Food donation and animal feed

The second priority is food donation. Many grocers are generally very good at setting aside baked products and finding partners that can distribute these items to people in need. Donating fresh fruits and vegetables is more complicated, and even more difficult is getting perishable items such as meat, dairy and prepared foods to those who can use them. However, there are organizations that are well equipped to help with these surplus foods.

Animal feed programs and rendering are other examples of higher uses of wasted food. There can be challenges with finding local farmers who can provide reliable pickups, but, again, there are companies that make these programs efficient and manageable.

Organics is more than just food

Of course, organics recycling doesn’t only refer to food waste.

While discarded food takes up a large proportion of the organics recycling category — with this including everything from fruits and vegetables, to meats, poultry, and seafood (including bones and shells), to coffee grounds, egg shells and bakery ingredients — organics includes other organic materials, food-soiled paper, coffee filters and plant material such as leaves and stems.

While organics recycling includes much more than food waste, these programs typically have the same contamination challenges as mixed recycling (paper, plastics, metal and glass). Plus, separating food waste for collection has the added hindrance of being an unfamiliar experience, which holds back many individuals and organizations from trying it for the first time.


Organics recycling opportunities

While this may be a challenge to take up, it also presents an opportunity. Businesses can educate their employees, and themselves, on how to best deal with their wasted food and other organics to ensure they’re being separated correctly. If your waste and recycling partner doesn’t currently offer organics recycling, find out if another company can pick these materials up for you.

Technology can help to improve upon our current organics recycling efforts. For businesses looking to implement organics recycling programs either on a small scale, or across an international footprint, food waste reduction programs can first help you to uncover what you are discarding. With data that shows what is left, donation and organics recycling programs can be designed and implemented that keeps these useful resources out of the landfill.

Stop Food Waste Day is a reminder to all of us that the biggest opportunity in organics recycling, as in all other forms of recycling, is source reduction. The less we produce, the less we need to recycle. After that, we need to put in the work to make sure that we educate our employees, and ourselves, on why putting the food we produce toward a beneficial use is so important.


6 Genius Ways to Stop Wasting Food On Earth Day 2019

Originally published by Women’s Health on April 22, 2019. Written by 

There’s nothing quite like the sweet success of a good weekend grocery haul. Just one look at your fully stocked fridge has you patting yourself on the back: a week of fresh and delish dishes comin’ right up. But on Monday that broccoli gets the boot from your fam. Tuesday, you work later than planned, leaving you too tired for that new pesto-chicken recipe. And Wednesday, impromptu dinner plans with friends easily wins over DIY dining. Sound familiar?

Americans throw out more than 400 pounds of food per person annually, according to the Natural Resources Defense Council (NRDC). But it’s not just about the neglected noshes. “When we toss food, we waste natural resources—energy, water, air, soil—all of which are required for production,” says Katherine Miller, vice president of impact at the James Beard Foundation. And, ugh, more cons: Leaving grub to rot in landfills produces the same amount of greenhouse gases as 37 million cars. Whoa. This can also wreak havoc on your wellness. Amped-up emissions make it harder to breathe by aggravating asthma. What’s more, rising temps (courtesy of global warming) can lead to stress, anxiety, and depression and increase your risk for cardiovascular issues such as stroke.

The good news? There are ways to prevent climate change. The even better news? Reducing your food-waste output is an easy place to start, says Miller. It’s totally doable on any diet from allergen-free to keto. So, master these strategies to go green while still eating your greens. PSA: Mother Earth—and your health—will thank you.

1. Focus on Storage


Of course you don’t mean to toss all that food, but truth is, the majority of food waste happens in homes (not restaurants). Here’s step one: Figure out how much you’re wasting.

“For one to two weeks, put all the food you’d typically discard into a bin in your fridge or on your counter. Then take stock of what you’ve collected to start making better decisions,” says Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic.

Next: Create “eat me first” areas for edibles that need to be used quickly, like berries or dairy products—no shame in labeling as a reminder!—and practice reorganizing your fridge post-shop. As you unpack your bags, move older goods to the front so you grab ’em before recent buys. This will also make it easier to “shop your fridge” later—i.e., see what you still have before heading to the market, says scientist Dana Gunders, formerly of the NRDC and author of Waste-Free Kitchen Handbook.

Read the rest of “6 Genius Ways to Stop Wasting Food On Earth Day 2019” at Women’s Health.


New Federal Interagency Strategy Provides Opportunity to Advance Food Waste Reduction Efforts

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste. As FLPC wrote in an earlier blog post, this strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. This post outlines several actions that the federal agencies can take within these priority areas to maximize food waste reduction.

Priority Area 1: Enhance Interagency Coordination

The strategy’s first priority area calls for improved coordination between EPA, FDA, and USDA in order to maximize resources and avoid redundant efforts. FLPC has long advocated for improved interagency coordination on the issue of food waste. Food waste is often left out of the calculation when policies are developed simply because it is not on the radar of decision makers. Better coordination among agencies can ensure that measures to address food waste are included in relevant federal programs, such as conservation programs and food assistance programs.

FLPC has also been an advocate for enhanced coordination across the food system more broadly. In February 2017, FLPC and the Center for Agriculture and Food Systems at Vermont Law School published a report proposing a national food strategy that would require a coordinated approach to policymaking and regulation of the food system. We are pleased to see the federal agencies recognize the need for improved coordination and hope that their efforts around food waste can serve as a template for other areas of the food system.  

Priority Area 2: Increase Consumer Education and Outreach Efforts

Recognizing that many consumers do not know about the issue of food waste, the second priority area proposes the development of a consumer education campaign by the federal agencies in partnership with public and private sector entities. According to ReFED, consumer education campaigns are one of the top two most cost-effective food waste solutions and have the greatest overall diversion potential at 584,000 tons. In the United Kingdom, a similar national education campaign led to a 21% reduction in consumer food waste over five years and had a 250 to 1 benefit-cost ratio.

Several national consumer education campaigns, such as the Save the Food campaign created by NRDC and the Ad Council, already exist in the U.S., as do various local, state, and regional campaigns. Federal government support can build on existing campaigns like Save the Food and utilize their research and materials to help ensure that the information is disseminated more widely and better incorporated into other relevant federal programs and materials.

Priority Area 3: Improve Coordination and Guidance on Food Loss and Waste Measurement

Priority Area 3 proposes enhanced coordination and guidance on food waste measurement in order to help refine food waste reduction goals and better report on progress. Data on food waste trends can help government entities, businesses, and other stakeholders identify the most effective solutions and track progress over time.

States and localities have been at the forefront of efforts to measure food loss and waste. For example, the Oregon Department of Environmental Quality, in partnership with Portland State University’s Community Environmental Services, is conducting a five-part Wasted Food Measurement Study that will look at the amount of food waste generated in the state and seek to identify drivers of food waste. In addition to coordinating among federal agencies and developing voluntary guidance on best practices, the federal government can advance food waste measurement efforts by providing funding to support state studies and initiatives to measure food waste.   

Priority Area 4: Clarify and Communicate Information on Food Safety, Food Date Labels, and Food Donations

The fourth priority area seeks to reduce confusion by providing guidance on food date labels, food safety, and liability protections for food donation. Federal action to streamline and provide clarity on each of these topics is consistent with longstanding FLPC recommendations.

Date Labels

Confusing date labels result in unnecessary food waste among consumers and in the retail sector. Because of a lack of federal law standardizing date labels, date labeling language varies from state to state and across food products, and date labels generally have no relation to a food’s safety. Yet 84 percent of consumers report discarding food close to or past the date on its package. Federally-standardized date labels are the most cost-effective solution to food waste according to ReFED and have the potential to divert an estimated 398 thousand tons of food waste.

Important steps have been taken in recent years to reduce consumer confusion by encouraging the use of standard date labeling terms to indicate quality and safety. In particular, FLPC applauds USDA’s industry guidance, which encourages manufacturers to use the standard term “Best if Used by” to indicate product quality. We have also been excited to see industry action to standardize date labels, most notably the voluntary Product Code Dating Initiative. Launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA), this initiative encourages businesses to use only one of two standard phrases on any food product: “BEST if used by” for products where it is an indicator of quality, and “USE by” on products that may have a safety risk over time. However, due to conflicting state laws and the voluntary nature of this initiative, universal adoption of these voluntary standards cannot happen without federal action. Therefore, the federal agencies should work with Congress to support federal legislation to standardize date labels; alternatively, FDA and USDA can require the use of standard date labeling language on products within their jurisdiction through regulations. Once labels are standardized, the three agencies can work to educate consumers to make better decisions and waste less.

Liability Protections

The Bill Emerson Good Samaritan Food Donation Act provides strong liability protection to food donors and nonprofit organizations that distribute donated food. Yet many food retailers, restaurants, and manufacturers still cite liability as a barrier to food donation. The federal agencies can promote food donation by raising awareness of the liability protections available under the Emerson Act. Additionally, USDA can provide clarity on ambiguous terms in the Act by developing guidance on the scope of the available protections. These actions are consistent with provisions in the 2018 Farm Bill instructing USDA to create guidance on elements of the Emerson Act and to raise awareness of the liability protections provided by the Act. With the focus on this topic as part of the interagency food waste strategy, FLPC hopes to see agency action to clarify and raise awareness about this important protection so that donors are encouraged to donate safe, surplus food. We also hope that the agencies will support efforts to enhance Emerson Act protections to better align with the modern food recovery landscape, such as the Food Donation Act of 2017 or similar efforts.

Food Safety

Another key barrier to food donation is confusion about what safety procedures are required for food donation. A fifty-state survey of state food safety officials, conducted by FLPC and the Food Safety for Donations Working Group, found that one reason for this confusion is that most states and localities do not have regulations or guidance on this topic. Most states and localities use the FDA Food Code, a model code developed by the Conference of Food Protection, as the basis for their food safety regulations for restaurants and retailers. Because the FDA Food Code does not include information about food donations, very few state or local regulations address this topic. The agencies, particularly FDA, can support safe food donation by creating guidance for restaurants and retailers on food safety practices for food donation; this guidance could be part of the FDA Food Code or separate. FDA can also create similar guidance for food facilities.

Priority Area 5: Collaborate with Private Industry to Reduce Food Loss and Waste Across the Supply Chain

The fifth priority area calls for collaboration between the federal government and the private sector. Food businesses have been leaders in food waste reduction efforts, with many adopting food waste reduction goals and implementing practices to reduce food waste in their operations. Yet limited data exists on the scope of these goals and the impact they have made. The federal agencies can help advance private sector initiatives by working with food businesses to collect, analyze, and report information about their efforts and their progress towards their goals.

Priority Area 6: Encourage Food Waste Reduction by Federal Agencies in their Respective Facilities

The final priority area seeks to position federal agencies as leaders by example, by encouraging federal agencies to reduce food waste in their own cafeterias and events. The Federal Food Donation Act of 2008 represented an important first step in this direction; the Act encourages executive agencies entering into food service contracts above $25,000 to donate excess food. Agencies must include clauses in their contracts encouraging the contractor to donate surplus food to the extent possible. However, the Act does not actually require the agencies or their contractors to donate, or even to report on the amount of food that is donated. FLPC has made recommendations to strengthen this Act by requiring federal agencies to report on the amount of food they donate and requiring contracts to include language mandating that contractors take steps to donate surplus food.

EPA, FDA, and USDA can model the federal government’s commitment to food waste reduction by including provisions in their own food service contracts that require the contractors to enter into agreements with food recovery organizations to donate excess food. The agencies can also commit to taking steps to reduce the amount of food waste generated in their cafeterias, and to sending excess food that is not edible to organics recycling facilities to the extent possible. Finally, the agencies can commit to collecting and publicizing data on the amount of food that they donate and recycle. 

FLPC is thrilled to see the agencies begin to take coordinated action on food waste, and we hope to work with the agencies and other stakeholders to implement some of these next steps.


The Truth About Expired Food: How Best-Before Dates Create a Waste Mountain

Originally published April 18, 2019 by The Guardian. Written by Dale Berning Sawa.

It started in October 2016, when Scott Nash, founder of the Mom’s Organic Market chain of grocery stores, wanted to make a smoothie. He likes his with yoghurt. As he was at his holiday cabin in Virginia, though, the only pot he had to hand was one he had inadvertently left behind on his last trip there, six months earlier. He opened it. No mould, no smell. He decided to take the plunge and dumped the yoghurt in the blender. “I drank and waited,” he wrote on his blog. And nothing happened.

Nash had always been averse to wasting food, but now he started documenting his experiences. He whipped up cream to use, uncooked, almost four months past the date on the carton, and stirred artichoke lemon pesto through pasta seven and a half months in. There was also minced beef (15 days old), smoked trout (24 days past sell-by), smoked turkey (six weeks past use-by), chicken broth (more than three months past best-before), roasted tomatoes (seven months past sell-by) and tortillas (practically a year old). Still nothing happened. It raises the question: were the dates just wrong? Have more compliant people the world over been binning perfectly good food this whole time? Should we be eating expired goods?

The first thing to point out is that Nash is based in the US, where regulations on food dating differ significantly from those in the UK. While British foods carry just one date – either “use by” or “best before” – Nash was confronted by “expiration, use by, best by, sell by, best if used by …” He sells food for a living, and even he doesn’t understand the system. And while fresh chicken and fish went bad exactly when the dates suggested they would, dates on everything else seemed arbitrary. “I don’t think any of them are rooted in reality,” he says.

Nash points out that even things that aren’t food – baby wipes, toothpaste, soap, lotion – are dated, as are jarred and canned goods. A specialist from the US Department of Agriculture’s food safety and inspection service (FSIS) told the food website the Takeout in February that as long as a can is kept in good condition (ie, it is not swollen, rusting, leaking or heavily dented), its contents are safe to eat, for ever. “They will never make you sick,” she said. The FSIS’s own website, however, appears to contradict that advice, stating in its shelf-stable food-safety guidance that there are limits to how long canning will preserve food.

Clearly, this lack of clarity has implications for both the health of the environment and the health of the nation. What you don’t eat, you’ll end up binning, even if you could have safely eaten it; and what you don’t know not to eat could make you sick.

A joint report from the Natural Resources Defense Council and Harvard Law School in 2013 said that 40% of American food goes uneaten each year, and the disorienting effect of the US date labelling system is in large part to blame. At the same time, said the report, that system fails to convey important food safety information, “despite the appearance of doing so”.


Yet date labeling has been accused of generating both confusion and food waste in the UK, too, or of simply being ignored. As recent research by the makers of the food-waste app Too Good To Go shows, British home cooks threw away a whopping 720m eggs in 2018, with one in three saying they will bin any carton that is out of date. Yet eggs in the UK carry a best-before date, not a use-by.

All those discarded eggs show that most people still don’t understand the difference. If 74% of respondents to a 2016 Women’s Institute (WI) survey knew that “use by” was about safety, only 45% knew that “best before” wasn’t. The waste reduction charity Wrap has found that as much as 30% of the food binned for being “past date” had a best-before; ie, it probably didn’t need to be binned. And we throw away an awful lot of food in the UK: upwards of 7m tonnes a year. Clearly, understanding dates is crucial.

Andrew Parry of Wrap says that a lot of thought goes into how a business decides on a date: what something is made of; where and how it is made; how hygienic the space in which it is made is; how consumers will treat it; how cold (or not) their fridges will be. Wrap’s research has found that only one in three of our fridges is cold enough (at 5C or lower); a degree can shave a day off the life of something. And then there is the question of liability. The microbiological risk assessment that products have to go through is hefty; businesses have to provide “robust evidence”, says the Food Standards Agency (FSA). So, sometimes a very conservative use-by date is, as Parry puts it, just a business being overly cautious. Nash thinks businesses might be being more than cautious: “At best [those dates] are a neurotic, cover-your-ass thing; at worst, it could be planned obsolescence.” The food industry is in the business of selling you food, after all: the more you throw away, the more you’ll need to buy. Parry agrees that manufacturers’ main job is to sell food, but says that for the most part they actually want the longest shelf-life possible.

He, along with WI vice-chair Ann Jones, the British Nutrition Foundation and the FSA are categorical: as a consumer, you don’t ignore a use-by date. The pathogens that cause food poisoning, from listeria (which the NHS states is found most commonly in things such as butter, cooked meats, smoked salmon and certain soft cheeses) and salmonella (meat and poultry, eggs) to campylobacter (raw milk, raw chicken) and E coli (meat, raw dairy, raw leafy vegetables) are undetectable without a microscope. Even when these bacteria have grown to dangerous levels, food could still look and smell just fine.

Wrap surveys businesses to check whether they’re “absolutely sure” (as Parry puts it) that their products need to carry a use-by date. It has had notable success with hard cheeses and fruit juices – more than 95% of each now have best-before dates after the tech guys in each sector did new tests and realised they didn’t need use-by dates. Which means, as a harried home cook, you are no longer on the clock to use them up quickly or face sending them to landfill. You can just use your nose.

Harvard University Implements New Food Standards to Promote Sustainability and Health

In April 2019, Harvard University officially implemented Harvard’s Sustainable Healthful Food Standards. The Standards were led by the Office for Sustainability, with input from a multi-disciplinary faculty committee (including FLPC Director Emily Broad Leib), the Council of Student Sustainability Leaders, and experts in the field.

The Standards are informed by research and designed to measurably increase access for students, faculty, and staff to more sustainable and healthful food offerings. The creation of the Standards focused on multiple issue areas: climate and ecosystems, consumer well-being, education and food literacy, reduction of wasted food, the welfare of animals, and the well-being of communities throughout the value chain. In addition, they aim to enhance food literacy and to optimize the impacts of food choices on people, animals, and the planet. With these standards, Harvard University seeks to:

  1. Align food providers around a shared vision and common set of evidence-based aspirations and principles.
  2. Quantify the environmental and health impacts of the campus food system through reporting.
  3. Optimize the campus food system for well-being, climate and community.
  4. Drive changes in the marketplace through partnerships and by leveraging purchasing power.
  5. Enhance food literacy across the Harvard community, and beyond.

FLPC applauds Harvard University for its commitment to improving the health of its students, staff, and the planet, and was happy to lend its expertise to the development of the standards, and to the creation of the standard for food waste reduction. The Standards recommendations for the reduction of wasted food, based on a research project by FLPC staff and students, include implementation of practices to motivate patrons across the Harvard campus to divert wasted food from the landfill and incineration; reduction of food waste at the source; diversion for consumption by humans (e.g., food donation); diversion for agricultural and industrial uses; composting, land application, and digestion; the creation of a system to track wasted food with report at least twice a year; and the creation of an on-going, formal relationship with a local food donation partner.

FLPC looks forward to supporting the University in implementation of these standards, both through future student research and work, and through Prof. Broad Leib’s ongoing membership in the Standing Food Standards Committee, which will monitor implementation.

Learn more about Harvard’s Sustainable Healthful Food Standards in a recent Harvard Gazette article.

Federal Agencies Announce Interagency Strategy to Address Food Waste

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste.  This strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. Several of these priorities align closely with longstanding FLPC recommendations, including clarifying information on food safety, date labels, and liability protections for food donations; increasing consumer education; and encouraging food waste reduction by federal agency facilities. The agencies developed this strategy based on information and recommendations from several resources. Notably, the strategy mentions among the resources used in its creation Don’t Waste, Donate: Enhancing Food Donations through Federal Policy, a report published by the Food Law and Policy Clinic and the Natural Resources Defense Council in 2016.

FLPC applauds the federal agencies for taking this important step to coordinate efforts on reducing food waste. We have been excited to see momentum forward in the past few years on food waste reduction; for example, the 2018 Farm Bill passed in December 2018 includes food waste resources and funding for the first time ever, and the Trump administration recently announced that April will be “Winning on Reducing Food Waste Month.” In addition to the federal momentum, FLPC tracks state legislation and found more than 100 bills introduced in 30 states in the 2017-18 legislative session. All of this forward progress is promising, as there is much work to do. We look forward to working with the USDA, EPA, FDA, and with other stakeholders, as they implement this strategy.

For more information, see this press release. Read the full interagency strategy here.

Battle Over Affordable Care Act Resurfaces

Originally published by Healio on April 9, 2019. Written by Janel Miller.

Legal and political battles have put the fate of the Affordable Care Act, and health care for millions of Americans, back into the spotlight and ensure that it will play a pivotal role in the 2020 elections.

Last week, the Justice Department submitted a two-sentence letter to United States Court of Appeals for the 5th Circuit in which it stated that the Court of Appeals should affirm a December 2018 Texas District Court opinion holding the entirety of the Affordable Care Act to be unconstitutional. In 2018, under then-Attorney General Jeff Sessions, “the Department of Justice declined to defend the ACA in this case but did not go so far as to argue the entire law is unconstitutional,” Amanda C. Pustilnik, JD, a law professor at the University of Maryland, told Healio Primary Care Today.

“Now, under current-Attorney General William Barr, the Justice Department has endorsed the 2018 decision and will file a brief urging the appellate court to affirm the lower court’s complete invalidation of the ACA,” she continued.

The consequences of the circuit court concurring with the district court could be dire, according to Michele Goodwin, JD, the University of California Irvine School of Law Chancellor’s professor.

“The ACA would be completely eliminated, which would also remove some of the constitutionally-protected principles within the ACA. For example, the term ‘pre-existing’ would become whatever insurance companies want it to be, such as a second pregnancy, a recurrence of cancer, or other similar medical scenarios,” she said in an interview.

Robert Greenwald, JD, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School, concurred with Goodwin on the consequences of the ACA repeal.

“If the lower court’s decision is affirmed, it would topple the entire ACA, including provisions entirely unrelated to the individual mandate such as the expansion of the Medicaid program. This would do untold damage to our health care system. It would leave over 20 million additional people uninsured,” he said in an interview.

Goodwin said historically United States Court of Appeals for the 5th Circuit usually leans conservative when rendering decisions, but that does not necessarily mean history will repeat itself.

Greenwald said he was “cautiously optimistic” the United States Court of Appeals for the 5th Circuit will keep ACA in place, since the district judge’s ruling has no legal footing to stand on.

“The Texas decision flies in the face of the severability doctrine that requires judges to leave what Congress did as undisturbed as possible. Congress could have eliminated any other part of the ACA in addition to the mandate or all of the ACA, but chose not to. The ACA has survived many challenges. This brief is not going to be the instance that takes the ACA down,” he said.

Many conservative legal analysts and the Republican Attorneys General of Montana and Ohio have criticized the legal underpinnings of the Texas District Court ruling, and have filed amicus briefs with the United States Court of Appeals for the 5th Circuit opposing the decision, according to NBC News.

However the Court rules, appeal to the Supreme Court is likely, where the ACA would face a more conservative bench than it faced in previous decisions.

“Chief Justice John Roberts has already presided over two cases in which a majority of the court held the individual mandate to be constitutional. Neither Justice Roberts nor the two new justices, Neil Gorsuch and Brett Kavanaugh, believe it is the role of judges to legislate from the bench,” Pustilnik said. “Perhaps these justices will resist being used as a tool in the political strategy of repeal and replace, which is the job of Congress, not the courts.”

Medical societies respond

The Justice Department’s action prompted many medical societies to renew their concerns about the potential fallout from a complete repeal of the ACA without replacement legislation in place.

The AMA, American Academy of Family Physicians, ACP, AAP and the American Psychiatric Association collectively filed an amicus brief with the Court of Appeals “in defense of significant coverage gains and key patient protection provisions of the ACA,” according to a press release.

Barbara L. McAneny, MD, AMA president, said that the district court ruling being upheld “would wreak havoc on the entire health care system, destabilize health insurance coverage, and roll back federal health policy to 2009.”

These societies argued that the District Court decision would no longer allow children to remain on their parents’ insurance plans until they turn 26 years of age, would allow insurance companies to generate higher profits at the expense of coverage and payments for services, would eliminate need-based subsidies as well as federal funding for Medicaid expansion and Medicaid eligibility expansion and would reinstitute annual and life-time dollar limits.

The American Cancer Society Cancer Action Network, American Heart Association, American Liver Foundation, American Lung Association, Arthritis Foundation, COPD Foundation, Crohn’s & Colitis Foundation and National Psoriasis Foundation were among 26 societies that issued their own statement that expressed concern if the district court decision was upheld.

Read the full article online.

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