The Waxman Report

by Henry Waxman; Joshua Green

  CHAPTER 6

  Nutrition Labeling and Dietary Supplements

  IN THE MID-1980S, A HEALTH CRAZE SWEPT THE COUNTRY. For the first time, large numbers of Americans became aware of the importance of proper diet and exercise to good health, and in an effort to prevent heart disease, strokes, and cancer, many tried to cut down on their intake of cholesterol and sodium. More than most new national enthusiasms, this one reached Congress. One reason may have been that we were always the first to see reports on public health, like the ones issued during this period linking sodium and hypertension. But my own hunch is that the profile of those most at risk bore an uncanny resemblance to the members of the U.S. Congress: paunchy, middle-aged-and-older men whose diets and health regimens would not have elicited the surgeon general’s approval.

  As someone who has always battled weight problems and dieted constantly, I was no exception. Along with some colleagues, I started making regular visits to the House gym, and over the years have tried to stick with a program. I’ve discovered that staying healthy has more in common with legislating that one might imagine: Both demand years of perseverance and effort without any assurance that the payoff will resemble anything like what you had originally envisioned. And as the chairman of the House subcommittee on health, I was more acutely aware than most of my shortcomings in this area.

  One frustration soon encountered by anyone trying to watch his diet in those days was the difficulty of finding even basic nutritional information about most foods—information like calories, sodium, and cholesterol content. Food manufacturers had a spotty record of what they chose to reveal on product labels, if they chose to reveal anything at all. No law required them to do so. Some products offered comprehensive nutritional details, some only limited information, and others nothing at all. The result was haphazard and confusing. Recognizing a marketing opportunity in the new awareness about diet, food manufacturers started including health claims on their labels (“Low Cholesterol!”), while simultaneously downplaying or ignoring important information that might discourage sales of a product, such as high levels of fat and sodium. This made life even harder for health-conscious consumers: No one could make sense of the labels. Anyone attempting to watch what he ate, including many congressmen, soon realized that he could not really do so until food makers began providing basic nutritional information.

  By the end of Ronald Reagan’s presidency, the problem of food labeling had grown acute, owing not only to the inconsistency of what was being disclosed but also to the administration’s passion for deregulation, which created the additional problem of exaggerated and misleading health claims. The trouble began with a breakfast cereal, Kellogg’s All-Bran. In 1984, Kellogg’s launched a multimillion-dollar marketing campaign for All-Bran that included the claim, printed in bold letters on the cereal box, “The National Cancer Institute believes a high fiber, low fat diet may reduce your risk of some kinds of cancer.” Kellogg’s repeated the claim in full-page ads in major Sunday newspapers and magazines. This was the first time a company had ever claimed a direct link between a food product and cancer prevention, and the implied endorsement of a highly respected governmental medical organization like the National Cancer Institute caused sales of All-Bran to skyrocket. Other cereal makers quickly responded with claims of their own.

  Since 1906, federal policy had held that any product claiming to treat or prevent disease had to be tested and regulated as a drug. All-Bran had not been, so the ad campaign appeared to violate federal rules. The Food and Drug Administration, which oversees the safety of the country’s food, considered stopping the ads and even seizing boxes of All-Bran, until Reagan appointees intervened and let Kellogg’s continue.

  This touched off a stampede among food makers to issue ever more aggressive and outlandish claims about the nutritional benefits of their products, claims that were often misleading and soon lost any grounding in scientific fact. Skippy touted its peanut butter as having “less sugar than other leading national brands,” but its label didn’t state how much sugar Skippy contained. Del Monte claimed its canned vegetables were as nutritious as fresh ones, but didn’t mention that they contain three hundred times as much sodium. Campbell’s Soup did away with specifics altogether and began referring to itself as “health insurance,” though its products, too, contained staggering amounts of sodium.

  In many cases, the clear intention was to deceive consumers. Bertolli Extra Light Olive Oil may have looked like a healthy, low-calorie product—that was certainly the idea—but its “light” claim derived not from a calorie count, but from the color of the olive oil itself. Sara Lee Light Classics French Cheesecake boasted “only 200 calories per serving,” even though a serving contained more calories than Sara Lee’s regular cheesecake. Confronted by an FDA task force, the company claimed the term “light” referred to the cheesecake’s texture. Wonder Lite Bread boasted that it contained “no cholesterol,” without noting that few types of bread contain any cholesterol whatsoever. Food manufacturers scrambling to cash in on the health trend wanted only to convince consumers that such products were good for them—even when they were not. Simply claiming to be healthy usually got people to buy them.

  JOE MOAKLEY, A MASSACHUSETTS DEMOCRAT WHOSE FAMILY HAD A history of hypertension, became the first member of Congress to try to elicit standard nutritional information when he introduced a bill requiring food makers to disclose sodium content on their product labels. Jim Cooper, a Tennessee Democrat, twice put forth a Lite Food Labeling Act that would have defined “light” as meaning “one-third the calories, fat or sodium that would be in the food without alteration.” Both measures died after manufacturers complained that the requirement would impose too great a cost, confuse people with too much new information, and, for a host of other specious reasons, could not possibly be made to work. In Congress, the most commonsense ideas are often the ones that draw the most heated protests.

  There is an inherent tension to the subject of government regulation that centers on knowing when it is necessary for the government to intervene and when it is not. How does Congress know if it has gone too far or hasn’t gone far enough? My own belief is that people always deserve whatever information is necessary to make responsible decisions, especially about important matters of health. If government decides not to regulate such matters, it ought to provide the information and let consumers decide for themselves. Food labeling was clearly an area where government needed to play a role, first in establishing a way for consumers to get basic nutritional information, and second in stopping the spread of dangerous and misleading health claims.

  By the time Reagan left office, even some food manufacturers had begun to realize the need for federal labeling standards. By the late 1980s, the FDA had descended into chaos, the result of a toxic combination of factors, including severe budget cuts under Reagan imposed even as the agency’s responsibilities were multiplying and pressure on it mounting to approve drugs faster, due largely to the exploding AIDS epidemic. Agency morale was at a historic low. The Reagan administration had undermined enforcement of many basic food and drug laws, and then, in 1989, the FDA was rocked by scandal and Commissioner Frank Young forced to resign after several officials were convicted for falsifying safety and effectiveness data for drugs that the agency had approved. The crisis was such that President George H. W. Bush, encouraged by Republican senator Orrin Hatch, nominated as his FDA commissioner Dr. David Kessler, a tough, enforcement-minded pediatrician and lawyer (and former Hatch aide) who had taught food and drug law at Columbia Law School.

  The trouble from an industry standpoint was that when the Reagan administration stopped enforcing the laws, many state attorneys general stepped into the void, suing companies like Campbell’s, for claiming its soup decreases the risk of heart disease, and Kellogg’s, for claiming that Frosted Flakes made a healthier snack than bananas, oranges, or apples. The threat that any number of states could take action fostered enormous uncertainty among food manufa
cturers. No one was entirely sure about what was or was not permitted under the law.

  It fell to me, as chairman of the subcommittee responsible for overseeing public health, to try and remedy these shortcomings. In July 1989, I introduced a bill proposing the Nutrition Labeling and Education Act (NLEA), which required all processed foods to carry labels listing the amount of calories, saturated and unsaturated fat, cholesterol, sodium, complex carbohydrates, sugar, protein, and dietary fiber. The bill also established uniform federal definitions of terms like “light,” “lean,” and “low fat,” and stipulated that any claims of disease prevention had to be backed by “significant scientific agreement” rather than just the wishes of the marketing department. Our intention was to make the law as comprehensive as possible, so that ultimately every food product, including fresh fruit, vegetables, meat, and poultry, would carry nutritional information.

  Unlike many other legislative efforts, this one did not sort out neatly along party lines. Food industry trade groups like the Grocery Manufacturers of America and the National Food Processors Association opposed the bill, particularly its curb on health claims. And though Republicans are usually attentive to what industry desires, here some were not. Louis Sullivan, the secretary of health and human services in the new George H. W. Bush administration, declared, “The grocery store has become a Tower of Babel, and consumers need to be linguists, scientists, and mind readers to understand the many labels they encounter.” Ed Madigan of Illinois, the health subcommittee’s ranking member, also liked the idea and agreed to work with us on legislation.

  Having the support of the committee’s top Republican created a collaborative, rather than an adversarial, process that limited what industry groups could do to stop the bill. At an August hearing on the legislation, food industry representatives argued against a new law on grounds that it would be too costly and difficult to implement. The real reason they opposed it, which they couldn’t air publicly, was that many of the products touted as “healthy” were clearly not so, and they worried that educated consumers would stop buying them. But Madigan’s inclination toward the idea prevented them from pressing this claim too strongly even in private, since they required his goodwill in many other areas. In October, the bill passed the subcommittee on a voice vote.

  Sensing that they could not kill the legislation, the industry groups switched tactics and instead sought to use the bill as a vehicle to escape state food safety requirements, a longstanding desire of their members. Their primary focus became ensuring that any new federal law would preempt a California measure known as Proposition 65, which required warning labels to be placed on any foods that contain a carcinogen. California voters had passed what was formally the Safe Drinking Water and Toxic Enforcement Act of 1986 as a ballot initiative to protect themselves from toxins. Food manufacturers hated the law because it presented them the choice of eliminating, at some cost, even trace amounts of carcinogens or else slapping a label on their product that read, “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.” The less than robust sales potential for carcinogenic foods prompted most manufacturers to ensure that whatever they sold in California was free of hazardous substances—in other words, Proposition 65 worked exactly as intended.

  Not every legislative battle is decided in a dramatic showdown on the House floor. Some are won quietly through the clever drafting of a bill, and victory seized before the matter can ever come to a vote. This became our strategy. Despite the country’s newfound interest in health and fitness, there was hardly a public clamor for better nutrition labeling, and none at all to preempt state food safety laws, except among industry trade groups. Consequently, few congressmen or senators felt strongly enough about the matter to spend political capital defending these laws—they simply didn’t resonate with their constituents in nearly the same way as issues like clean air and tobacco. No groundswell was going to arise in our defense.

  This meant that while many members were inclined toward our bill, they would also be willing to give away a great deal to achieve compromise. What food makers most wanted was to preempt Proposition 65, and there was reason to believe they might get their wish. Though Ed Madigan supported our push for uniform nutritional labeling, he made clear that he would support the industry’s desire to override Proposition 65. So from the outset we anticipated that Madigan, or some other Republican, would put that option before the committee by introducing an amendment—and we doubted our ability to defeat it.

  But winning a vote is not the only way to stop an amendment. Should a chairman determine that an amendment is not germane to the bill before his committee, he will rule the amendment out of order and dismiss it. With the nutritional labeling measure headed to full committee, its chairman, John Dingell, would be the one to decide.

  Once we had identified the likeliest threat, we set about plotting to avoid it. Here was a situation where a thorough knowledge of the rules and deft use of language could work wonders. When Bill Corr, from the subcommittee staff, had sat down to draft the bill, he had in mind the possibility that there might arise a germaneness argument over an amendment to preempt Proposition 65, and had devised a clever linguistic trick to counter it. He wrote the Nutrition Labeling and Education Act to pertain specifically to “nutrients” rather than “food.” The distinction might at first appear puzzling—until one remembers that “food” can contain both “nutrients” and “carcinogens,” and therefore an amendment concerning carcinogens, such as any that would repeal Proposition 65, might not be germane to a bill dealing only with nutrients. In effect, the bill set a trap for our opponents.

  The authority on germaneness, and other matters of rule and precedent, was the House parliamentarian. The job of parliamentarian is believed to have originated in 1857, when Speaker James L. Orr of South Carolina appointed a “messenger” named Thaddeus Morrice whose knack for remembering Orr’s decisions made him an invaluable repository of institutional knowledge. Over the decades, others filled the role, and in 1927 Congress formalized the nonpartisan Office of the Parliamentarian, and later published a multivolume compendium of House precedents. Today, the parliamentarian is the figure who sits just to the right of the speaker whenever the House is in session, and holds enormous power in this capacity. It is the parliamentarian who reads the thousands of bills, resolutions, and executive communications introduced in the House each year; who decides which committee or committees those bills are referred to; and who commands unrivaled authority as an expert on all matters of legislative procedure and detail—including whether or not a nutrition bill could be drafted in such a way that a chairman might find cause to dismiss an amendment concerning carcinogens. With chairmen, as with everyone else, the opinion of the House parliamentarian carries great sway.

  The value of having this nonpartisan arbiter was not, I must confess, initially clear to me. When, as a new congressman, I first encountered some obstacle in a rule, I appealed to Tip O’Neill, the ultimate authority as House speaker, to decide in my favor. In the California Assembly, the speaker determined the rules, and Jesse Unruh had maintained power by routinely using them in exactly the partisan fashion I envisioned. But O’Neill deferred to the parliamentarian and declined my entreaty. It came as a surprise to me that Tip O’Neill, the leader of my own party, couldn’t just make the decision. But later on, when the Republicans gained control of the House, I came to appreciate the importance of having an honest broker to follow the rules. In the meantime, I drew a lesson from what I’d observed. Since having the speaker on your side is a great advantage, and the speaker always consulted the parliamentarian on issues of rules, it occurred to me that the parliamentarian held tremendous power that I might use to gain an edge. My staff and I became devoted students, consulting the parliamentarian on all matter of law and procedure, mastering the rules in our own right, and eventually pioneering, with his guidance, all sorts of legislative tactics and ma
neuvers.

  When consulted about the drafting of the NLEA, the parliamentarian agreed that the distinction between nutrients and carcinogens was a meaningful one, and he ruled in our favor. This was a great advantage, for it enabled us, if the expected amendment on Proposition 65 materialized, to introduce a point of order and seek to have the amendment dismissed on grounds that it wasn’t germane. But invoking such a ruling can sometimes involve an elaborate pas de deux. Though influential, the parliamentarian’s ruling is an advisory opinion that ultimately takes a back seat to the decision of the chairman or speaker. While it’s important to have, letting it be known that you have it is something of a delicate matter. I couldn’t very well announce it before the committee, since doing so would openly challenge Dingell’s authority, with whom we were then in the midst of the heated final stages of the Clean Air Act struggle and not on the friendliest of terms. Instead, my staff discreetly conveyed to his that we’d raised the question and the ruling had gone our way.

  In May, Dingell called the bill for markup, and, sure enough, Madigan introduced an amendment directed at Proposition 65. I immediately made a point of order and explained the crucial distinction between nutrients and carcinogens. I never found out whether Dingell himself learned of the parliamentarian’s ruling, but he gave every outward appearance of making up his own mind on the matter, right there before the committee. With theatrics befitting a powerful chairman, Dingell called for a dictionary, and an aide wheeled out one of the largest I had ever laid eyes on. Dingell looked up “nutrient” and read the definition aloud to the committee, then riffled through the pages until he got to “carcinogen” and did the same. That seemed to satisfy him. He dismissed the amendment after a brief debate, and our bill, thankfully intact, moved out of committee by another voice vote.