Saving Gotham

by Tom Farley

  They honed four messages: trans fats kill, trans fats are replaceable, no one will miss them, and trans fats in food are like lead in paint. They fine-tuned rebuttals to the charges that would be leveled against them. (The change would be too expensive? A three-pound drum of Creamy Liquid Shortening made of partially hydrogenated vegetable oil cost $17.95, but the same amount of trans-fat-free Canola Liquid Fry Oil was $16.95. The oils would ruin the taste of French fries? Wendy’s had tested trans-fat-free oils and people didn’t notice the difference.) They drafted handouts for each of the four messages, wrote op-eds for newspapers, and scheduled meetings with editorial boards. They considered how to dramatize their main points. (Could they find a picture of a chemical factory producing trans fats to show how artificial it was? What about an artery clogged with cholesterol?) They tried to undercut the opposition by getting restaurants that were already trans-fat-free to say how easy it was to make the change. They listed politicians to call just before the vote and who should call them. To “soften the ground” with the general public and follow through on Frieden’s agreement with the deputy mayors, they distributed 20,000 copies of a brochure on trans fats and ran a few radio ads about their dangers.

  As they laid out the schedule, the team decided to offer the Board of Health the calorie-labeling rule at the same time. Lynn Silver said with a laugh, “We figured that way one or the other would get less attention.” They then plotted a similar political strategy on the calorie-labeling rule. Far more energy went into the trans fat strategy, though, because in contrast to the scary word ban, menu labeling sounded tame.

  In September, after the agreed-upon three months of public education, the deputy mayors tried again, hard, to stop the trans fat rule. They wanted more public education, something more intense. And they insisted Frieden not announce any rule in the meantime. “They said, ‘Your education program didn’t work,’” Frieden told me. “I said, ‘I can’t educate people about something they don’t care about.’”

  Frieden was deeply upset. How could he call himself the health commissioner if he couldn’t take a simple step that would save hundreds of lives a year? He ruminated openly with Chang about resigning. He called others for advice. In the end, he bypassed the deputy mayors by e-mailing Bloomberg directly. “You can imagine how popular that was with them,” he said.

  The mayor heard out the arguments from his City Hall advisers. And that forced him to choose between his health commissioner and all his top deputies. To get another opinion, he called his friend Al Sommer, the dean of the Johns Hopkins School of Public Health, who was traveling in France. Was this stuff really that bad?

  Sommer confirmed that trans fats were unhealthy but said that no one was sure exactly how much. He called Willett’s and Frieden’s estimates of how many people trans fats were killing “rubbish.” They were “extrapolations of extrapolations of extrapolations.” If Bloomberg banned trans fats, New Yorkers would head to New Jersey to get French fries. The public bashing wouldn’t be worth it, Sommer told the mayor. Don’t do it.

  Public bashing is my problem, not yours, Bloomberg told Sommer. I just want to be sure the science says it’s bad for you.

  As Frieden tells the story, Bloomberg’s only question back to him was the same as with tobacco: are you sure this will save lives?

  Frieden said yes. And Mike Bloomberg told him to go ahead.

  • • •

  The New York City Board of Health met on September 26, 2006, in a dingy room with a rattling air conditioner, just down the hall from Frieden’s office. The board members heard proposals to allow dogs off-leash in designated spots in parks, permit a new screening blood test for tuberculosis, update the safety rules for lifeguards at city beaches, and loosen regulations for altering the sex on the birth certificates of transgendered people. After that Lynn Silver turned on a projector and said she had come to present two proposals to prevent chronic diseases in New York City. “The first involves chemicals that increase the risk of heart disease. Like leaded paint, which is dangerous and replaceable, no one will miss it when it’s gone . . . The second will empower consumers to make informed choices.”

  Following Frieden’s script, Silver, Angell, and dietitian Cathy Nonas took the board through slides for each rule—slides that had been refined and debated by the department’s lawyers, chronic disease experts, communications staffers, and restaurant inspectors, then edited again, several times, by Frieden himself. At this meeting, the board would vote only on whether to publish the proposed rule for public comment.

  When the members voted to do that, though, the national media played it as a major event. The Times was the most positive, recognizing Mary Bassett and Lynn Silver’s approach to cleaning up the “toxic environment” as something new: “the trans fat plan is the latest in a series of regulations that have placed New York City in the forefront of regulating behavior and products’ content in order to benefit public health.” Rupert Murdoch’s New York Post used the proposals to skewer Bloomberg, saying that “a nanny’s work is never done” and wondering if restaurants would soon sell only “tofu taters with soy burgers.”

  Most of the press treated the rule as a control on people rather than on restaurants. CNN polled its viewers with “Do you think the government should police how much trans fat you eat?” Fox News showed a graphic of French fries and a hamburger covered by a red circle with a line through it, headed “FOOD POLICE.” “If you go after the French fries and the burgers,” their commentator asked, “what’s next?” All the network stories implied that trans-fat-free French fries or doughnuts would taste bad. None showed pictures of anyone suffering from heart disease or mentioned how many people died each year from eating trans fats.

  The restaurants were irate. They conceded that trans fats were dangerous; they just didn’t think that that meant they should stop feeding them to their customers. Like the Smoke-Free Air Act, the rule would damage an industry and kill jobs. Applebee’s said that forcing it to use only trans-fat-free products would “have a stifling effect on our industry by limiting the menu choices of New Yorkers,” which would mean “people will likely seek restaurant experiences outside the City or will stop eating out.” Charles Hunt of the New York State Restaurant Association said the ban would hurt small ethnic restaurant owners, those who make “cannoli, éclairs, egg rolls, or fresh-baked cookies.” But it was the National Restaurant Association that came up with the most creative argument: since trans-fat-free oils would have a shorter “fry life,” the change meant “more frequent deliveries of oil to restaurants, [which would] exacerbate the bane of all businesses, cab drivers, deliver truck drivers, and residents—traffic and congestion.” The restaurant association talked openly about suing.

  Dunkin’ Brands was the most reasonable. The company had been working since 2003 to develop trans-fat-free doughnuts with the same “taste, mouth feel, and texture” of the doughnuts their customers loved. They were willing to make the change but just needed more time to find the right combination of soybean, palm, and cottonseed oils for the deep frying, and other oils for the icing.

  In all the shouting about trans fats, as Lynn Silver had hoped, the press mostly ignored the calorie-labeling proposal. But the restaurants’ noises about it were nearly as threatening. Calorie labeling, Charles Hunt claimed, was utterly impractical. “Does every conceivable combination of toppings on a medium pepperoni pizza need to be listed?” By applying the rule only to restaurants that already published nutrition information, he said, the health department was lending “credence to the saying that ‘no good deed goes unpunished.’” McDonald’s claimed to have a study showing that customers didn’t want to see calorie counts on the menu board. A local McDonald’s franchisee complained that the new information would slow down the line at the cash register, ruining their “quick service concept.”

  The restaurants were even more incensed that the decision makers were appointed experts whom they couldn’t push around. The New York State Restaura
nt Association wrote in its newsletter, “For the past five years, NYSRA has successfully defeated state legislation to require menu labeling. . . . Unfortunately, since the Board of Health is not a legislative body, it is very difficult to lobby.”

  The press reported that the restaurants would try to move the game back to where they had the advantage—the City Council. Council member Peter Vallone, Jr., was said to be drafting a trans fats bill that would overrule the Board of Health, and a newspaper reported that McDonald’s had hired a former deputy mayor to “go to war” with Frieden. While the council was the lawmaking body for the city, the Board of Health was empowered by the state to make rules regulating health. City Council members eyed the Board of Health with great suspicion. They felt that their having won a popular election gave them sole legitimate authority. If the City Council and the Board of Health passed conflicting rules, no one was certain who would win in court. And no one in the health department wanted to find out.

  Despite that risk, on December 6, 2006, after public hearings, public comments, and revisions, the Board of Health unanimously passed the two rules, making New York City the first city or state in America to ban trans fats and the first to require calorie labels on menus. The calorie-labeling requirement would take effect March 1, 2007. The trans fat ban would start July 1, 2007, for oils, shortening, and margarine, and—in a bow to Dunkin’ Donuts—twelve months after that for deep-fried “yeast doughs and cake batters.”

  After the years of painstaking work, it was a victory to savor. Before the next team meeting, Frieden sent his driver with fifty dollars to an artisanal doughnut shop that already used trans-fat-free oils. He passed the doughnuts around in a quiet celebration. Years later everyone on the team remembered the meeting, not for what anyone said but instead for the warm feeling of success. And for the doughnuts, which Frieden called “ungodly, incredibly delicious!”

  6

  “I just went on a field trip to Dunkin’ Donuts.”

  My BlackBerry rang early on a Saturday morning in July 2007. It was Tom Frieden. I didn’t know him well yet, but I could tell he was upset. Late in the afternoon the day before, lawyers hired by the New York State Restaurant Association, working for the big chain restaurants, had filed their brief on a lawsuit over calorie labeling. He had read it that night. It was “scary,” he told me later. “You’d read their case, and you’d say, ‘Oh, we’re dead!’ ” Now he was calling out his troops to counterattack.

  I had flown to New York City only a couple of weeks earlier to start work as an adviser to Frieden, without the slightest idea of what I would do. Another public health doctor started in his office the same day I did, and when the three of us met, the health commissioner’s first words were “I feel like the cavalry is coming over the hill.” There were so many things he had to do, he said, and he had so little time. My first assignment, apparently, was to help defend the department against the restaurants.

  The lawsuit had caught everyone at the health department by surprise. They had expected a political and legal brawl over the trans fat ban, but the trans fat war never happened. Frieden later assumed that the restaurants foresaw scandalous headlines. “Why should you be exposed to an artificial toxic chemical that can kill you without your information or your consent? And it turned out that the food industry got that and they didn’t say a word.” It also turned out that, just as Sonia Angell had predicted, the oil change was easy. Restaurants just started ordering trans-fat-free cooking oils, shortening, and spreads, and the suppliers shipped them. Some restaurants had to change “fry oils” more often or strain them between fryings. Some bakeries’ black-and-white cookies spread too much in the oven, so bakers had to add more flour. Cake icing made with certain brands of trans-fat-free “butter cream” came out looking ivory instead of a bright white or separated overnight, so some bakeries had to change brands. But that was as bad as it got. Because the restaurants had insisted that finding supplies and changing recipes would cripple them, the health department—with money from the American Heart Association—set up a phone Trans Fat Help Center. But in a city with more than 20,000 restaurants, it was getting all of ten calls a week.

  And restaurant customers were oblivious to the change. Not a peep about French fries tasting burned or pie crusts not flaking right. No one drove to Jersey to get trans fats. No damage to the industry, no losses of jobs. “The hot air that had been circulated turned out to be just hot air,” said Lynn Silver. There was “a huge amount of fuss, but at the end of the day, the cannolis and the knishes were still there.”

  Instead, the restaurants grew more agitated about the calorie counts. They had many criticisms. Health advocates or greedy lawyers would sue them over inaccurate counts. The restaurants couldn’t possibly post numbers for all the menu options. The cost would break them. One franchise chain argued that because its restaurants were independently owned, it couldn’t force them to comply. The restaurants’ lawyers started appearing at the health department, pitching alternatives. Wendy’s wanted to put calorie counts on posters on the wall, McDonald’s on counter mats, and Dunkin’ Donuts on stanchions.

  Dunkin’ Donuts even brought in a mock-up of its sign. Anna Caffarelli, an assistant to Frieden, was thrilled to see the calorie counts in big letters. “I remember kind of waving it in front of Tom’s face, and he was like ‘it’s great.’” She excitedly brought the sign to Lynn Silver, who stopped her cold. If we let them do this, Silver told Caffarelli, it’s what all nutrition labeling will be like, with numbers anywhere but the menu board. It has to be on the menu board itself, right next to the item name or price. The health department rejected all the restaurants’ alternatives.

  Two weeks before the rule was to go into effect, the restaurants sued. Those of us within the health department could only guess at their motives. They must have believed the calorie labels would hurt their sales year after year. Maybe with prominent calorie labels, customers would decline to supersize. That possibility excited Frieden and his staff and made everyone determined to win.

  The health department lawyer handling the case was Tom Merrill, whom Frieden had just hired from the city law department to replace retiring general counsel Wilfredo Lopez. Unlike most people in the health department, who dressed like graduate students and spoke in numbers, Merrill dressed in business suits and spoke in Latin legal terms. He had a gentle, lighthearted manner, but from his background prosecuting murders in the district attorney’s office, he knew how to fight.

  When Merrill arrived, he was immediately overwhelmed. At the law department, he was accustomed to researching legal questions for days or weeks, but now people were constantly firing e-mails at him, on exotic pets or HIV testing or restaurant inspections, expecting answers within hours. He was particularly shocked by Frieden’s pace. “You send the guy a legal brief and he’s read it the next day,” he told me. “I was like, ‘Oh my god, how does he do this? . . . What is he, Superman or something?’”

  The restaurant chains’ lawyers argued that the city was preempted from requiring restaurants to post calorie counts by a the federal Nutritional Labeling and Education Act (NLEA), which required the Nutrition Facts panels on packaged food. The legal principle of preemption exasperated everyone at the health department. Corporations usually have much more sway over the federal government than the state government (and more over the state than the city), so corporations enjoy federal laws that wipe out entire areas of possible regulation for states or cities. They could hijack even a well-intentioned federal law like the NLEA to block further progress on nutrition nationwide. With Bloomberg as mayor, the health department could accomplish great things, but not if the department was checked at every turn by the feds.

  Although the NLEA let states and cities regulate food in restaurants, it reserved for the FDA the power to regulate “nutrient content claims.” No restaurant could write on a menu “Low in fat!”—which qualified as a “claim”—without meeting FDA specifications. The restaurants’ legal argume
nt was that a number like “100 calories” on a menu board qualified as a “nutrient content claim” that only the FDA could require.

  At a distance, the argument was nonsense. Congress had let states and cities decide what nutrition information restaurants had to disclose. If cities couldn’t require restaurants to post calorie counts, then what could they do? But the FDA regulations on the law were hopelessly tangled, and the more confusing they were, the more opportunities the restaurants’ lawyers had to exploit them. Frieden, rather than leave the arguing to Merrill, dove into the legal morass. He later called the case “one of if not the most interesting things I saw from my time there.”

  • • •

  Two months and many legal filings later, Frieden gathered Mary Bassett, Lynn Silver, Tom Merrill, and the rest of his nutrition team around the conference table in his office. The mood was grim and tense. The city had lost, its rule preempted by the NLEA. But in his opinion, the judge had enforced the preemption specifically because the Board of Health had applied the rule only to restaurants that already offered nutritional information voluntarily. The provision that Wilfredo Lopez had put in the rule to avoid losing a lawsuit had done just the opposite. For reasons that I still don’t understand, the judge had decided that a rule tied to the voluntary act of providing nutritional information on a website made that information a “claim.” On the other hand, the judge suggested that he would allow a revised rule that required the posting of calorie information by all restaurants, or by chains of a certain specified size.