Why the FDA is Considering a ‘Healthy’ Icon for Food Packaging

Originally published by Pacific Standard on April 2, 2017. Written by Emily Moon.

For years, consumer advocates have complained that food packaging misleads American consumers by conflating nutrient content with health. The Food and Drug Administration has proposed yet another message to help clear up this confusion: an agency-approved icon signifying that an item is indeed “healthy.”

Last week, the agency’s outgoing Commissioner Scott Gottlieb said the FDA was still debating how to define “healthy” and would likely issue a rule this summer, in an interview first reported by Politico. According to Gottlieb, the icon’s look remains unclear. “There’s sort of rigorous debate going on about whether or not we include the FDA logo in the logo,” he said on Thursday, according to the agriculture news service The Hagstrom Report. What do we know about debate over this proposal, aside from the design challenges?


Consumer advocacy groups like the Center for Science in the Public Interest have long argued that lack of regulation has enabled “food labeling chaos.” They say companies have been allowed to market their products using words like “natural” or “heart healthy” without providing evidence, thereby misleading and even deceiving the public.


Many public-health experts argue that blind faith in labels is a bad thing. Under the existing regulatory approach, the FDA distinguishes between claims about an item’s health, its nutrient content, and its function, requiring varying amounts of evidence for each. For example, a company can claim that “calcium builds strong bones” on a gallon of milk, but it can’t claim that the calcium in that milk would remedy a health-related condition without “significant scientific agreement.”

But as a study published this month notes, consumers do not evaluate these messages in the same way the FDA does, often giving more credence to the least regulated claims. “Research indicates that consumers cannot differentiate among different types of claims or distinguish the level of evidence supporting them, and consumers actually find structure/function claims more convincing than health claims,” New York University public-health lawyer Jennifer Pomeranz wrote in the study, which lists the Center for Science in the Public Interest’s president as co-author.

Before announcing his resignation, Gottlieb was overseeing the FDA’s most recent efforts to update this system. In June of 2018, he announced that the agency would focus on closing what some consumer advocates see as a regulatory gap: the definition of “healthy.”

Currently, the FDA bases its definition on a food’s nutrient and fat content, according to guidelines first established in 1993, giving rise to what New Food Economy staff writer Sam Bloch has called a “famously nebulous definition.” Gottlieb admitted as much in a statement announcing plans to revisit “healthy” last year: “People don’t eat nutrients,” he said. “They eat foods. And foods need to be assembled into diets that give people proper nutrition.”

In a bid to make the definition of “healthy” more science-based—and communicate that evidence to consumers—the agency issued a new guidance to food manufacturers in 2016.

Both industry groups and public-health experts weighed in: Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, wrote in a 2017 comment in the Federal Register that the current approach “leaves room for food companies to argue that their use of ‘healthy’ should not be regulated.” The Center for Science in the Public Interest has already criticized some of these arguments, including an organic egg company that petitioned the FDA for its products to be considered “healthy.”

The FDA has taken little action since extending the comment period to this guidance in 2017, but its efforts will undoubtedly outlast Gottlieb, who has said he will be departing this month.


Unwelcome Surprises: Despite Law, Mississippians Still Receive Unexpected Medical Bills

Originally published by the Northeast Mississippi Daily Journal on Sunday, March 31, 2019. Written by Michaela Gibson Morris.

Across Mississippi and the country, people are finding unwelcome surprises in their mailboxes.

Medical bills they expected to be largely covered by their health insurance arrive with a much bigger payment due. They find out that the emergency physician, pathologist, anesthesiologist or radiologist that cared for them was not in their insurer’s network even though they sought care at an in-network hospital and often had no control over who provided the care.

“From a consumer standpoint, there’s the physical trauma and then the financial trauma,” said Roy Mitchell, executive director of the Mississippi Health Advocacy Program. Mississippians have more legal protection than many across the rest of the country. If the health care provider accepts payment from their insurer, it is illegal for them to seek payment from the patient beyond their copayments and deductibles, a practice called balance billing. But some medical providers are ignoring the law, Mitchell said. Many consumers don’t compare the medical bills to the explanation of benefits they receive from their insurer and never realize they were paying more than required.

Mitchell suspects his agency, which offers free assistance to consumers on balance billing, is seeing only a fraction of the actual balance billing cases. A Mason-Dixon poll of Mississippi voters found that 40 percent had received a surprise medical bill for themselves or within their family. “It’s the tip of the iceberg,” Mitchell said. “This is happening, and consumers aren’t aware of their rights.”

Nationally, a report by United Healthcare estimated more than a quarter of emergency visits at in-network facilities resulted in out-of-network physician charges in 2017. The Mississippi Insurance Department’s consumer division is interceding in balance billing cases where they can, said Commissioner Mike Chaney. They’ve found that most providers are willing to resolve the issue when contacted by their office. “The insurance companies are not the bad guys,” Chaney said. “Most of the doctors aren’t either.”

In the crossfire

Patients are getting caught between the lines. Insurers have been tightening reimbursements to rein in health care costs to keep rates low and maximize value for shareholders. Hospitals and physicians are pushing back to have adequate resources to provide care now and in the future.

Stacy White is among those caught in the middle. Her husband was injured in an lawnmower accident in August. The Lee County woman took him for emergency care at NMMC, which is in-network for the insurance her employer provides through United Healthcare. What they initially thought was a dislocated shoulder turned out to be a broken bone that required surgery to repair and physical therapy to rehabilitate. A data company working with United Health alerted White that the emergency physicians who cared for her husband were out of network, and she should be at risk of being billed for more than she was responsible for. “There were so many bills rolling in from so many different places, I wouldn’t have been vigilant without the letter,” White said.

When the bill came from the Relias emergency physician group, it asked for $2,700; United said she was only responsible for about $250. That began a frustrating round of calls with Relias’ billing company and United Health. White was told to call her insurer to address the inadequate payment. She tried to pay her portion, but the payment was rejected. She filed a formal dispute in January “I don’t want this to go into collections,” and jeopardize her family’s credit scores, White said. The case was resolved this week after it was brought to the attention of the Relias group’s administration office in Tupelo. “We are incredibly appreciative,” White said Thursday. “Relias has gone above and beyond to make sure this is handled.”

Relias is working through protocols with its billing and coding contractor to better identify those with potential balance billing problems. In the meantime, anyone with balance billing issues should contact Relias’ Tupelo office directly at (662) 432-4106 or via the “contact us” tab on reliashealthcare.com. “We want what is best for the community,” Luke West, chief executive officer of the Tupelo-based Relias group. “It’s never our desire for the patient to carry the burden.”

Relias has resolved every case of balance billing brought to the attention of the group’s administration in Tupelo; they’ve heard from fewer than 20 patients. “We’ve made it right for every patient we know about,” West said. “We’re having to do it on a patient by patient basis.” Since forming in 2015, Relias has been able to secure contracts with all of the insurer networks that include North Mississippi Medical Center except one, West said.

“We’ve been unsuccessful with United,” West said.

United Healthcare, which has a network of nearly 100 hospitals and more than 11,000 physicians in Mississippi, acknowledged it is in active discussions with Relias in hopes of bringing them into the network. The insurer said it is very concerned about the national problem of surprise medical bills and price gouging by a small number of physicians exploiting their out-of-network status.

“We support policy solutions in other states and at the federal level that will end surprise billing and take consumers out of the middle, including use of a benchmark rate based either on Medicare rates or the median contracted rate in a defined geography to determine the amount paid to out-of-network providers,” said United Healthcare director of communications Sarah Bearce in a written statement.

In the dark

Health care providers in Northeast Mississippi point to the complexity of health care reimbursement. If they are out of a patient’s network, providers say they don’t receive any information about portion of the bill a patient is responsible for. They receive an electronic payment from the insurer or third party administrator that may or may not cover the cost of care. “It’s not our intention to balance bill anyone,” West said. “We only know about it after the fact.”

Blue Cross & Blue Shield of Mississippi, the state’s largest private insurer, said it is doing what it can to protect its members from the confusion of out-of-network providers at in-network hospitals. “A requirement of being a Blue Cross & Blue Shield of Mississippi network hospital is all professional services, to include emergency room professional services, must also be (in) network,” said Dr. Tom Fenter, Chief Medical Officer in a written statement. “This has been our requirement, as we see it as the network hospital’s responsibility to ensure our Members receive full network services when they use a network hospital.”

Northeast Mississippi hospital leaders say they are doing what they can to protect consumers. North Mississippi Health Services requires the medical groups it contracts with to provide emergency care, anesthesia, pathology, radiology and neonatal intensive care to seek in network status with the insurers that include NMHS in its networks, said system president Shane Spees. The system is in the process of strengthening those requirements.

OCH Regional in Starkville employs physicians providing emergency care, which means they fall under the hospital’s network agreements. The other physician groups contracted with the hospital are typically in network for the same insurers as the hospital. “There have been rare instances when this has not been the case,” said Susan Russell, OCH chief financial officer. In those instances, the hospital will contact the contracted group to request that the group accept the insurance as if they were in network.

When a patient has out-of-network insurance, Baptist Memorial Health Care typically bills the insurer first. “We … expect them to make a fair and reasonable payment for the services rendered,” said Baptist director of public relations Ayoka Pond in a written statement. “Once a fair and reasonable payment is received from the insurance company, then we bill the individual for the member cost share according to their benefit plan.” Like other hospitals in the region, Baptist does require contracted physician groups to participate in the same insurance networks as the hospital. “However, because they are independent organizations, we’re not familiar with how they handle balance billing,” Pond said.

None of the hospitals have the authority to require participation of private practice physicians who have hospital privileges to care for patients, but are not employed or contracted.

Magnolia Regional Health Center in Corinth did not submit answers to Daily Journal questions for this story.


Mississippi’s balance billing law was groundbreaking in 2013, but needs to be updated, according to a report from the Harvard Law School Center for Health Law and Policy Innovation.

The report, issued in March, offers three recommendations:

  • Clarify enforcement authority over balancing billing,
  • Prohibit providers from reporting surprise medical bills to creditors,
  • Establish transparent, reasonable payment standards for out-of-network providers that operate at in-network facilities along with a clear, fair process for resolving payment disputes between providers and insurers.

There’s been tremendous push back against amending the balance billing law, Mitchell said. A bill proposed this year didn’t even get out of committee. “Our current law needs updating,” Mitchell said. “As advocates, we are very concerned about the situation.”

Allowing the state or federal government to set reimbursement rates is not a good solution, Spees said. Insurers and health care providers do need to be on more even footing. “The current (balance billing) law favors payors,” Spees said. In some cases, out-of-network insurers are avoiding contracts, so they can unilaterally set payments, Spees said. If the hospital or medical provider rejects the payment as too low, the insurer sends a check to the insured, making it their responsibility to pay the entire bill.

“They’re gaming the system,” Spees said. “There’s no incentive for the insurer to negotiate.”

Spees would like to see insurers’ networks more closely scrutinized for adequacy by federal regulators, who oversee the Medicare Advantage plans.

The reality is that private insurers cannot continue to carry the load for the entire health care system, Chaney said.

Yet if hospitals and providers aren’t adequately funded, they can’t keep their doors open.

“As insurers and providers continue down this road, there’s going to have to be more collaboration,” West said. “There has to be middle ground to do what’s best for the patient.”


Boston City Council Passes Good Food Purchasing Program

Last month, the Boston City Council unanimously voted to adopt the Good Food Purchasing Program (GFPP). GFPP requires the city to meet certain requirements for nutrition, sustainability, animal welfare, and labor, when making food purchases. This policy applies to purchases made by all city agencies, and will have the greatest impact on the Boston Public Schools, which spends approximately $18 million per year on food. GFPP helps ensure that this money is used to purchase healthy food and to support sustainable and responsible producers.

GFPP was developed by the Center for Good Food Purchasing, which helps manage the adoption and implementation of GFPP by cities and institutions. According to the Center, seven GFPP policies have been passed to date at the local or institutional level.

Boston’s ordinance goes beyond the other cities, and includes particularly strong language around racial equity. The ordinance seeks to support vendors that invest in disadvantaged communities — for example, vendors that hire disadvantaged community members, are women- or minority-owned, and pay all workers living wages — by awarding these vendors bonus points in the review process for purchasing contracts.

Boston’s policy also includes robust provisions to increase transparency in the food purchasing process. FLPC worked with a coalition of local advocates to strengthen the language in order to increase opportunities for the public to have their voices heard during the procurement process. We were thrilled to see the Boston City Council adopt language to establish public hearings on purchasing recommendations and require the public release of certain materials related to purchasing, such as vendor proposals and the agency’s evaluations and recommendations of these proposals. The Boston ordinance also creates a Community Advisory Council that will assist with the implementation process.

FLPC looks forward to continuing to work with local stakeholders and with the City of Boston towards implementation of the GFPP, and applauds Boston City Council for this exciting new legislation!

For more information about Boston’s adoption of the GFPP, see the press release.


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