Congress to Kids: Drop Dead

An objec­tive approach is badly needed because Big Food’s own lame vol­un­tary rules allow such sugar atroc­i­ties as Reese’s Puffs cereal and Kool-Aid to be mar­keted to kids. But this lat­est polit­i­cal delay tac­tic makes no sense because it’s entirely vol­un­tary for indus­try to adopt any final guide­lines. As Margo Wootan, nutri­tion pol­icy direc­tor for the Center for Science in the Public Interest, noted:

Doing a cost-benefit analy­sis makes sense for reg­u­la­tions that require com­pa­nies to actu­ally do some­thing. But there is no cost asso­ci­ated with some­thing that is totally voluntary.

Where then, is this idea com­ing from? Specifically, before its report is made final, FTC must now attempt to com­ply with Executive Order 13563. What’s that? Bear with me, as some his­tory is in order.

The order derives from a nasty right-wing dereg­u­la­tion pol­icy that dates back (sur­prise!) to the Reagan admin­is­tra­tion. The Office of Information and Regulatory Affairs (OIRA) may sound innocu­ous, but over the past 30 years, it has become the best tool Corporate America has to kill pro­posed rules it doesn’t like. It acts as a gigan­tic hoop an agency must jump through to prove soci­etal ben­e­fits out­weigh eco­nomic costs, tacked on to an already strin­gent reg­u­la­tory rule-making process. Here’s how Huffington Post Washington cor­re­spon­dent Dan Froomkin explains it:

OIRA ana­lysts are sup­posed to rig­or­ously exam­ine pro­posed reg­u­la­tions and reject or revise them as nec­es­sary, based on inter­a­gency con­cerns and whether the costs of pol­icy pro­pos­als out­weigh their benefits.

This “reg­u­la­tory bot­tle­neck by design” has been a huge suc­cess for busi­ness inter­ests over the years:

Since Ronald Reagan opened the OIRA office in 1981, Republicans have used it to par­tic­u­lar advan­tage to pur­sue an anti-regulatory agenda, defang­ing envi­ron­men­tal rules on things like water runoff and cli­mate change — even block­ing attempts to col­lect infor­ma­tion that might lead to regulations.

Despite promises by President Obama to develop a new approach and some pos­i­tive efforts early on to reverse Bush-era oppres­sive poli­cies, this past January the White House, as Froomkin explains: “finally issued a limp exec­u­tive order that basi­cally reaf­firmed the prin­ci­ples that had been guid­ing the office for years.” So much for change. The effect has been that all “sig­nif­i­cant executive-branch reg­u­la­tions” must get approval from OIRA before being pro­posed or final­ized. That’s some bot­tle­neck. (For more on dereg­u­la­tion and its impacts on health and safety under the Obama admin­is­tra­tion see OMB Watch.)

Which brings us back to junk food mar­ket­ing to chil­dren. Remember, any final fed­eral rec­om­men­da­tions on nutri­tion guide­lines would be vol­un­tary. The entire process was never to result in reg­u­la­tions. This sum­mer, FTC’s David Vladeck, direc­tor of the Bureau of Consumer Protection, wrote a frankly worded and humor­ous blog post in response to a mas­sive indus­try freak-out led by the adver­tis­ing lobby warn­ing of “sup­pres­sion of unprece­dented amounts of adver­tis­ing” to chil­dren. (Wasn’t that the idea?)

Vladeck tried to calm indus­try fears by explain­ing the FTC is just report­ing to Congress, which “pro­vides no basis for law enforce­ment action.” He repeated: “This is a report to Congress, not a rule­mak­ing pro­ceed­ing, so there’s no pro­posed gov­ern­ment reg­u­la­tion.” And he added, just in case indus­try still didn’t get it: “A report is not a law, a reg­u­la­tion, or an order, and it can’t be enforced.” (my emphasis)

If you’re still with me, even if you didn’t attend law school, you may be won­der­ing by now, how could Congress require that an exec­u­tive order intended for pro­posed agency reg­u­la­tions apply to a report that “pro­vides no basis for law enforce­ment action?”

Good ques­tion. I’ve been ask­ing a few of my lawyer col­leagues the same thing and they agree it makes no legal sense. Public health attor­ney Mark Gottlieb, exec­u­tive direc­tor of the Public Health Advocacy Institute, which also fights the tobacco indus­try, told me he thinks the exec­u­tive order only applies to for­mal rule-making and “does not seem to apply to pro­mul­ga­tion of vol­un­tary guide­lines that go to great pains to avoid reg­u­lat­ing industry.”

In other words, FTC is likely on solid legal ground to go ahead and release its final report to Congress with­out con­duct­ing any cost/benefit analy­sis. But I doubt we will ever see the final report. (We do have the pro­posed ver­sion, which can still be used to stick it to indus­try, as the Environmental Working Group recently did in its damn­ing report on sug­ary cere­als.)

This wouldn’t be the first time Congress over­stepped its legal bound­aries. As I argued with the pizza-as-vegetable deba­cle, Congress hijacked the USDA reg­u­la­tory process to do the food industry’s bid­ding. Here, it’s not exactly the reg­u­la­tory process that’s been super­seded, because the report FTC is try­ing to release is vol­un­tary, but Congress is just as wrong.

Apparently, it wasn’t enough for the food, adver­tis­ing, and media indus­tries to spend $37 mil­lion lob­by­ing this year to get its way. Nor has the multi-year delay of this entire process thanks to ongo­ing cor­po­rate bul­ly­ing suf­ficed. How about mak­ing bogus “job loss” claims or (for the top Chutzpah Award) warn­ing that we’d have to import more pro­duce if kids actu­ally ate their fruits and veg­eta­bles? Still not enough.

Industry keeps right on lob­by­ing, it’s what they do best. And for Congress, it’s just busi­ness as usual. But the very real con­se­quence of main­tain­ing the sta­tus quo is that chil­dren will con­tinue to be exploited for their emo­tional vul­ner­a­bil­ity, while get­ting lured into bad eat­ing habits that can last a lifetime.

Cost/benefit analy­sis? Industry ben­e­fits, while chil­dren pay the cost.

Postscript: Thanks to CSPI’s Margo Wootan for shar­ing this take action link – tell the Obama admin­is­tra­tion, don’t let Congress and the food indus­try win this fight.

Michele Simon

Michele is a pub­lic health lawyer who has been research­ing and writ­ing about the food indus­try and food pol­i­tics since 1996. Visit her site at www.EatDrinkPolitics.com/