by Tom Farley
With that offer from the judge, Tom Merrill called the ruling “the best loss I’ve ever had.” But Frieden recognized that even if his team rewrote the rule in a way that the judge said would be legal, the health department might lose on other grounds. They would revise the rule, he told his staff, in time for the next Board of Health meeting in a month. And in doing so, they would rethink every single decision they had made in hammering out the original. When I later asked him why he didn’t just fix the one flaw, he said, “Because we were the first people to do it. We better get it right.” He told his team, “We want to go with things that can withstand a full frontal assault by the food industry.”
The rule was only about half a page long, but in the meeting Frieden listed sixteen decisions that they would rethink. The restaurant industry “had tipped their hands on how they were going to get around this in every way,” he said to me later. “It’s like parenting a teenager. You have to be really clear with the rules.”
Frieden drilled his team closely. Every word of the rule carried both legal landmines and loopholes that the restaurants could exploit. The group took on a bit of paranoia. What exactly did they mean by a “chain,” a “restaurant,” a “food item,” or even “for sale”? How should they define a menu board? Some chains had posters with photos with items on the wall. Should those count? Should they require calorie counts for temporary “specials”? Was a combo meal an “item” deserving a single calorie count, or a group of items, for which the restaurants had to list calories for each? “Like people can add in this country,” Frieden carped at one meeting.
Should restaurants have to list the calorie counts for salad dressing? Dressings packed many hidden calories, and Lynn Silver wanted to warn people about them. “But we want people to eat more salad,” said Frieden. “A little ranch dressing makes the medicine go down.” But people would be tricked into thinking they were eating healthily, she complained. “Fooling people into eating salad isn’t the end of the world,” he said.
Item tags were especially frustrating. Boston Market was a chain that was laid out like a cafeteria. It didn’t have a full menu board; it had tags on each food tray with the name of the food. Should the rule require calorie counts on every item tag? If it did, then what about Dunkin’ Donuts, which had a menu board with prices for categories of items (“doughnuts $1.49 ea., $7.50 dozen”) but item tags on the individual doughnuts (glazed, plain, chocolate), each of which had a different calorie count? If the health department demanded calorie labels in both places, would a judge kill the rule as “overly broad”? And if they didn’t, would the restaurants drop their menus entirely and just label everything as an item tag? The discussion ran in circles. At one point Frieden gave up. “This one’s hard. Let’s go to the other ones on the list,” he said, and then, looking at his sheet, caught himself. “Ugh, they’re all hard.”
A few days later I was in the hallway near Frieden’s office and heard him call my name. He was racing down the hallway and was short of breath because he had just come up four flights of stairs. “I just went on a field trip to Dunkin’ Donuts,” he huffed. He described its layout. Maybe he just had to force calorie counts on item tags, he said.
In one meeting, with nothing particular to set him off, the commissioner boiled over. “It’s a sham,” he fumed. When they put counts on brochures and websites, “they say they’re giving this information out, but they know no one is seeing it. It’s a sham. I want to say it’s a sham. Why can’t I say it’s a sham?” he demanded, looking around the conference table. His staff was silent and avoided eye contact.
Meanwhile, the restaurant calorie-labeling idea was swirling around the country. The health board in Seattle was poised to pass its own calorie-labeling ordinance. The California legislature had managed to overcome the restaurant lobby and pass a labeling law, but Governor Arnold Schwarzenegger had vetoed it. At one meeting Frieden joked about press questions he might get. “Mike [Bloomberg] and Arnold are friends. They are going to ask if Arnold vetoed this why did Mike allow it? I’m going to say because Mike is stronger.”
• • •
In mid-November the television news show 60 Minutes ran a piece on New York City’s calorie-labeling battle. Correspondent Lesley Stahl said to Tom Frieden on camera, “The restaurants do not want to do this.”
“They hate it,” he said.
She grilled a spokesman for Wendy’s. “Aren’t you truly afraid that, by listing the calories, you’re going to lose money?” she asked him.
“Absolutely not,” the spokesman said. “If we were afraid to provide the information, why would we voluntarily provide it?”
The piece then cut back to Frieden saying, “What restaurants are doing now is a sham. They’re putting information on websites, and they know perfectly well that very few people see it there.”
“The colonel, the king, and the clown,” Stahl said, were fighting the health department with “lawyers and lobbyists.” But they were “up against a formidable foe, because Frieden has a record of making big industry bend to his will. He’s the one who forced smoking out of city bars and artery-clogging trans fats out of city restaurants. Both those bans spread nationwide, which is also happening with his new crusade.”
In January 2008 the Board of Health adopted the revised calorie-labeling rule. Eight days later, the New York State Restaurant Association filed suit again.
• • •
A day after the restaurants filed the second lawsuit, in the vaulted chamber of the New York City Council, the consumer affairs committee hosted a surprisingly heated hearing on an entirely different food initiative. The bill they were considering was meant to put pushcarts selling fruits and vegetables in the city’s poorer neighborhoods.
The idea grew out of conversations inside and outside the health department. Mary Bassett and Lynn Silver wanted to help New Yorkers eat more fresh fruits and vegetables. Almost no one in New York City ate the recommended five servings a day, but people in poor neighborhoods ate even fewer. Supermarkets had mostly abandoned those neighborhoods, preferring the suburbs where the land was cheap, giant delivery trucks could maneuver, and customers had more money. That left poorer neighborhoods as “food deserts.” A health department survey found that in East Harlem, only a quarter of bodegas sold apples, oranges, and bananas, and only 4 percent sold leafy green vegetables. In the early 2000s, researchers started publishing studies showing that people living farther from supermarkets were more likely to have unhealthy diets and to be overweight. The relationship was surprisingly strong. One group of researchers, analyzing data from over 10,000 people in four states, found that people with supermarkets in their census tracts were 17 percent less likely to be obese, even after taking into account their income, education, and physical activity.
The rising national worry about obesity and the trend toward “natural” foods merged around an activist agenda to put more fruits and vegetables in poor neighborhoods. The city established a position for a food policy coordinator, under Deputy Mayor Linda Gibbs, to do just that. Gibbs had been the commissioner of the Department of Homeless Services in the early Bloomberg years, and the mayor promoted her to be deputy mayor for health and human services—between Frieden and Bloomberg on the organizational chart—for the second term. Gibbs, a small, energetic woman with stylishly white hair, had been in city government for years, mostly in social service agencies and believed in providing one-to-one services, but as deputy mayor she took a liking to public health. At first, she didn’t see food policy as city government’s job, but later she pushed ideas like zoning rule changes that helped small supermarkets locate in poor neighborhoods. The health department had staff encouraging bodegas in poor neighborhoods to sell more produce, but the stores weren’t very interested. Managers complained that their customers just didn’t buy fresh produce, so it rotted on the shelves. Under the food policy coordinator, New York City began to offer financial incentives for supermarkets willing to open stores in poor neighbo
rhoods, but that would take years to make a difference. Hearing all this, Elliott Marcus, who oversaw the health department’s restaurant inspectors, had come up with the idea of Green Carts.
His inspectors enforced the city’s laws on food carts selling on sidewalks. Because street vendors engendered strong but varied opinions, the City Council had put a cap of 4,100 on the number of food cart permits that the health department could issue. Most peddlers sold unhealthy food, like hot dogs, pretzels, sodas, and grilled meat, and they fought over street locations with heavy foot traffic like those in Manhattan’s business districts or in front of museums. Many more people wanted food cart permits than the cap allowed, so Elliott Marcus’s staff kept a waiting list for permits with about 2,500 names. Marcus’s idea was to raise the cap on permits but allow the new carts to sell only fresh fruits and vegetables in poor neighborhoods. If people on the waiting list wanted permits that badly, they would agree. Then without the city having to fund anything, fresh produce would appear on the streets in the South Bronx and central Brooklyn. Poor people would be able to buy apples, avocados, and lettuce as easily as rich people did. Frieden estimated that if the city added 1,500 of these Green Carts, at least 100,000 New Yorkers would eat more fruits and vegetables, which would save about a hundred lives a year. As a bonus, the Green Carts might give hundreds of people a way to make a living.
The food policy coordinator presented the idea to a philanthropist interested in food, Laurie Tisch. She agreed to give the city $1.5 million to outfit the proposed Green Carts with distinctive umbrellas and to train the vendors, many of whom would likely be immigrants speaking little English. Speaker Christine Quinn liked the idea immediately and took on the job of getting the council to raise the cap on permits. Who could be against helping poor people buy fresh veggies?
Quinn soon found out. First, members argued over where to draw the lines: what counted as a food desert deserving Green Carts? Some council members hated food carts; they opposed the bill because they were certain the carts would illegally drift into their districts. Quinn’s staff and the health department haggled over maps, definitions, and enforcement rules, trying to ease fears and win votes.
And then the real opposition came out: the supermarkets, the bodegas, and brick-and-mortar green markets, which had earned friends on the City Council by donating to election campaigns. They saw the Green Carts as unfair competition, stores on wheels that didn’t have to pay rent and utilities. “And that opposition was working,” said Quinn.
At the hearing, bodega owners and supermarket owners insisted that if stores weren’t stocking fruits and vegetables, it was because people nearby didn’t want to buy them. One supermarket owner said that near his store “there are at least 20 food competitors. There is not one single bookstore, and all the schools are overcrowded. Education is a problem. Not food.”
It got worse. “The Green Carts, in a way that I did not anticipate, had a racial component to them,” said Quinn. Latinos owned many of the city’s bodegas, and Asians the brick-and-mortar green markets. Latino council member Hiram Monserrate “would get tons of bodega money and just be a pain in the ass,” said Quinn. Chinese-American council member John Liu, who like Quinn had mayoral aspirations, became the defender of the Asian green markets. “Where do we have an example where increasing supply actually increases demand?” Liu was quoted as saying in the Times. “That is backward voodoo economics.” At the hearing, one Korean green market owner said, “So, fruit vendor eventually flowing down to the street making congestion, will take money, black and white, from store. It’s not competition. It’s cannibalizing.”
Days before the vote, Liu led a protest demonstration by one hundred Korean American business owners on the steps of City Hall. Quinn wasn’t sure she had the votes to pass the bill. “It was harder than smoking,” she said later. She twisted arms and traded favors. To capture a few votes, she and the Bloomberg team dropped the number of carts in the bill from 1,500 to 1,000 and cut down the neighborhoods in which they would sell.
The backroom maneuvering worked. In late February 2008 the council approved the bill. Within a few months, in areas where 15 percent or more of people on the health department’s phone surveys had said they ate no fruits and vegetables at all, entrepreneurs would be allowed to sell whole fruits and vegetables on the sidewalk. No one at the health department knew, though, how many of the people on the permit waiting list would actually be willing to sell avocados in East Harlem. Maybe they all wanted only to sell hot dogs in Times Square.
• • •
Several of us in the health department waited anxiously to hear the judge’s verdict in the calorie-labeling case. The revised rule was set to take effect on March 31, 2008, but that month passed without a word. Then on April 16 I heard a rumor that, rather than waiting for the judge’s ruling, Starbucks had put up menu boards with calorie counts on them. It was a glorious day in New York City, with a brilliant blue sky and the fresh warmth of spring. I thought I would walk to a Starbucks to see for myself, but first I was scheduled to see the health department unveil a new antismoking campaign.
The city’s 311 call center was an open room the size of an airplane hangar, filled with a warren of cubicles, over which hung a giant screen showing constantly updated numbers on how many callers were waiting and for how long. That day the operators, headsets over their ears, were distracted by many television cameras and reporters clustered around a podium, behind which stood Frieden. “Dying young versus not dying young doesn’t motivate smokers,” Frieden told the pack of reporters. “What Ronaldo shows us is that suffering and being disfigured motivates smokers.” Sitting next to Frieden was the health department’s new star, about to appear in the department’s first homegrown testimonial ad.
Marie was in her fifties, with olive skin and a tough New York accent. Beth Kilgore, the sociologist, had met her when she was doing follow-up surveys of smokers who had requested nicotine patches during the giveaway program. Marie told her a story that was as initially bewildering to Kilgore as it was tragic. Doctors had amputated the tips of her fingers and many of her toes because of smoking, Marie said. She suffered from Buerger’s disease, a rare consequence of smoking that causes chronic inflammation of small arteries. The arteries clot off, suffocating tissue like fingers and toes that they supply. After years with the disease, the nicotine patches she got from the health department helped Marie finally quit, but by then she had had twenty-odd amputations.
Beth Kilgore had been looking for smokers who could do a Ronaldo-like testimonial ad. She thought Marie’s story was moving and tentatively approached her. Marie bravely agreed to go on camera. It had taken Jeffrey Escoffier three rounds of video shoots, but the team finally had ads they thought would work.
Now Marie sat at the launch press conference next to Commissioner Frieden. “I was in so much pain I was taking 200 mg a day of morphine,” she told the reporters. “My doctors were afraid to give me any more.” Frieden cued up the ads. They had been shot with dim lighting, with close-ups of Marie’s face and her hands. In the ads, Marie told her story bluntly, without emotion. Interspersed with her words were photos of the surgical instruments that the doctors had used to cut through her bones, with background sound effects evoking bones being crushed and labored Darth Vader–like breathing. Marie said flatly in one, “At one point I wasn’t even living. I was just alive.” Beside her at the press conference, propped among the cubicles, were posters that were appearing that day in subway stations around New York. Marie was holding up her hands, with several fingers missing or partially missing. “I chose to smoke,” the posters read. “This is what it cost me.”
Frieden led the press conference, but the reporters were drawn to Marie, hounding her despite the press officer’s repeated call of “Last question!” Then a photographer asked Marie to hold up her two hands in front of her face. She did, and the photographers snapped pictures and the video cameras blinked on.
I left the press conference w
ith a reporter who was working on a profile of Frieden. On the walk back, we went into a Starbucks. The menu board now had numbers to the right of the options. Next to the 16-ounce iced Caffe Mocha drink listing was the number 200, and next to the flavored latte 250. The reporter stopped a man holding a blended coffee drink that weighed in at 200 calories. She asked him if he had noticed how many calories it had.
“Yeah,” he told her dejectedly.
“What did you think?” she asked.
“I was appalled,” he said.
“But you bought it anyway?” she asked.
“Yeah.”
She asked him if he would buy something lower in calories in the future. “Probably,” he said.
And then we crossed the street to the health department, and I headed to Mary Bassett’s office. Just as we arrived, I heard Bassett shriek, “We won!” The judge had upheld the calorie-labeling rule. Those numbers would soon appear in thousands of outlets across New York City’s five boroughs.
7
“Now, for the first time ever, she could see for herself.”
In February 2008, Tom Frieden and Farzad Mostashari brought Mayor Bloomberg to a cramped doctor’s office in a poor Spanish-speaking neighborhood in the South Bronx and invited the press. The doctor was an animated man named Sumir Sahgal who, unlike many doctors, made house calls. Now the mayor and the health commissioner were with him to demonstrate, after years of effort, Frieden’s attempt to transform medical care in America.
It was software, a computer program that wouldn’t just help doctors avoid losing medical charts and bill insurance companies. It would help Dr. Sahgal do what he cared deeply about—keep his patients healthy. Once doctors across the city had it, Frieden hoped, the software would extend the lives of millions.
