by Tom Farley
Both companies were master marketers, brilliant at driving sales of their products. But their marketing in the Bronx would just pump up sales of their diet brands, not cut sales of their full-sugar brands. The rest was politics and public relations. Reaching a few hundred kids in the Bronx would buy them some valuable friends in the most stricken neighborhoods and make for good talking points for lobbyists, but it wasn’t going to touch the obesity epidemic in a borough of 1.4 million.
I couldn’t help but wonder if their plans were connected to something else that had happened that summer. Lawyer David Grandeau had recently filed a request under the state’s Freedom of Information Law (FOIL) about our Pouring on the Pounds campaign. He was following the money, asking for invoices, payments, and the names of donors who had helped pay for the counter-ads. When I asked him later for whom he was making the request, he refused to tell me. The state’s FOIL law doesn’t require the agency to release documents that are “deliberative,” which meant nearly all our e-mails were protected. But because of an internal screw-up, our agency sent Grandeau a pack of e-mails anyway. He forwarded them to his client, who must have tipped off Times reporter Anemona Harticollis, because we soon got a FOIL request from her that was an exact duplicate of his. Our office sent her the same packet.
The e-mails bared the back-and-forth behind the statement in the video that “drinking 1 can of soda a day . . . can make you 10 pounds fatter a year.” The messages were far too juicy for any reporter to resist. “Behind this simple claim,” Harticollis wrote in the Times, “was a protracted dispute in the department over the scientific validity of directly linking sugar consumption to weight gain—one in which the city’s health commissioner, Dr. Thomas A. Farley, overruled three subordinates, including his chief nutritionist.” She quoted health department dietitian Cathy Nonas writing that, “As we get into this exacting science, the idea of a sugary drink becoming fat is absurd.” Scientists, she wrote, “will make mincemeat of us.” Harticollis quoted scientific experts confirming that drinking sugary drinks tended to add fat but adding that how much depended on exercise and overall calorie consumption. And in one of the e-mails, a Columbia University obesity expert Michael Rosenbaum wrote, “Basic premise doesn’t work.”
As we had haggled and consulted experts over powerful wording that we could stand behind, Cathy Nonas had used a very unfortunate phrase: “What can we get away with?” Harticollis wrote that the e-mails “show what happens when officials try to balance science and public relations and toe the line between disseminating information and lobbying for a cause.”
Other newspapers weren’t as forgiving. The Post’s headline was “SUGARY AD A BIG FAT ‘LIE.’” The paper’s editorial the next day said “Farley’s claim to credibility—to legitimacy—is that he is a scientist, a man whose principal allegiance is to the truth. But it turns out that he is just another administration propagandist. . . . Tom Farley lied. That should matter.”
For the record, the body does convert sugar into fat in part, and the insulin surge provoked by drinking sugary drinks causes the body to store fat. The idea that consuming sugar makes you fat was the key argument that scientists were making to explain the obesity epidemic. I can defend the ten-pound number, too: when researchers “overfed” volunteers 1,000 calories a day, six days a week, for fourteen weeks, the people gained between 9 and 29 pounds, a rate that translates to between 6 and 19 pounds from “overfeeding” one can of soda per day for a year. And “overfeeding” sugary drinks is exactly what happens in the real world, because sugary drinks tend to be added to the diet rather than replacing food.
We put out a press statement that we stood by our ten-pound claim. It was the result of “vigorous internal discussion” that “is part of any scientifically sound decision-making process, but usually occurs outside of public view.” Dr. Rosenbaum wrote a letter to the Times backing us up. Still, I should have put a disclaimer in the ad saying that the number assumed no other changes in diet or physical activity. I was sloppy with the wording, and my credibility took a hit.
The bigger lesson I learned, though, was that the soda companies were no longer willing to just play defense.
• • •
Although the USDA could rule on the SNAP demonstration project on its own, it listens to Congress. And Congress listens to lobbyists. I heard from New York City’s Washington office that as soon as we announced our idea, the American Beverage Association was lobbying black and Hispanic members against it. So within two weeks of our announcement I went to Washington to present our side.
The congressional staffers most familiar with SNAP gave me the weary responses of those who had been fighting to a stalemate for too long. The idea of restricting SNAP to healthy foods had come up before, they said, but it never made any headway. Republicans generally weren’t enthusiastic about SNAP, and many wanted to cut funding for it; fiddling with the rules didn’t excite them. Democrats saw a split in their advocacy groups: some health organizations pushed for nutrition criteria while the antihunger groups fiercely fought them; the fact that the antihunger groups were in bed with the big food companies didn’t seem to matter. With the opposition fragmented, the big food companies had free rein, so junk food and beverages stayed in the nutrition program.
Another two weeks later, Robert Doar, New York State health commissioner Richard Daines, and I went to the USDA’s headquarters in Washington, a building that fills a giant city block along the Mall. We met with Under Secretary Kevin Concannon, who oversaw all of the USDA’s food programs. Concannon, a white-haired former social worker with a genial manner and a Maine accent, had nearly a dozen of his staff with him.
I made the health argument with dense slides showing facts, numbers, and graphs, and explained how scientifically rigorous our evaluation plan was. Doar talked about the growth of the SNAP program in New York City (more recipients being better in the eyes of the USDA) and how our proposed change wasn’t administratively difficult. But it was Daines—a Mormon with conservative politics—who made the most powerful argument. He spoke of walking across the boundary from the Upper East Side to Harlem and being incensed by the sudden onslaught of bodegas hawking sugary drinks. It just wasn’t right, he said, to help the beverage companies profit by getting poor black kids fat on soda.
Concannon looked genuinely interested, asking a few questions and joking that he had a support group within the USDA called Change Has a Small Constituency. But some of his deputies sounded hostile to the idea. One even suggested that restricting sugary drinks might make them a status symbol in poor neighborhoods and actually increase sales. Concannon called our proposal “a momentous experiment,” on a scale that the USDA had never done before. If it happened, an evaluation would be crucial to “isolate” the effect of the sugary drink prohibition from other changes.
• • •
I kept pressing my staff for more ideas on obesity. From my early days in the health department, Lynn Silver kept coming back to the problem of ballooning portion sizes—a problem that she felt carried its own solution.
In the early 2000s, researchers were churning out studies highlighting an unnerving fact of human nature: when people are served bigger portions, they just eat more. Nutrition researcher Barbara Rolls had invited 51 men and women into her laboratory for lunch on four different days, offering them different portions of Kraft macaroni and cheese. Even the smallest portion—about 7 cups—was huge. When she served her volunteers a portion twice as large as that, they ate 160 more calories than when she served them the smaller portion, without feeling any more full. “Most people are unaware of what constitutes an appropriate portion size,” Dr. Rolls wrote. “Thus, the ready availability of foods in large portions is likely to be facilitating the overconsumption of energy in many persons.”
She found the same unsettling portion-size effect with deli sandwiches, bags of potato chips, fruits and vegetables, and soda. People served 18-ounce glasses of Pepsi at lunch drank more than when they were se
rved 12-ounce glasses. The behavior lasted, too. In one study, people given 50 percent larger portions at every meal ate and drank more for eleven straight days. They took in an astonishing 420 extra calories a day, or more than enough to gain an extra pound in just that week and a half.
In the most devious study, researcher Brian Wansink at Cornell invented soup bowls that he could secretly refill from the bottom as people ate. When he offered study volunteers a meal of tomato soup, those eating from the refilling bowls ate 73 percent more soup than those who ate from regular bowls. And like almost all the people in these studies, they were oblivious that they had consumed more. For all our vanity about our ability to reason, we humans often behave like passive receptacles for whatever food is within arm’s reach.
Restaurants didn’t publish studies like these, but the cancerous growth of portion sizes showed that they understood the principle. When McDonald’s opened in the 1950s, it offered only one size order of French fries: 2.4 ounces. By 1999, it sold a “large” that was two and a half times that, and a “Super Size” that was three times that. And that was nothing compared to soda. In the 1950s, the only size cup on the menu was 7 ounces. In 2003 two of the choices were a 32-ounce “large” and a 42-ounce “Super Size”—six times the 1950s portion. After 2004’s stinging Super Size Me documentary, McDonald’s shrank its cup sizes somewhat, but in 2010 a “medium” drink at McDonald’s was 21 ounces—three times the only size in the 1950s. And McDonald’s was responsible compared to KFC, which sold sodas in half-gallon tubs delivering 54 packets of sugar. Restaurants come out ahead with even small price increases for their bigger sizes, so they set prices that nudge people to larger ones. At Checkers in New York City, a 12-ounce “Kids”-size drink cost 9.1 cents per ounce, but a 42-ounce “large” cost only 5.0 cents per ounce.
In theory, the solution is simple: give people food in portions appropriate to human needs. Even if they can choose seconds, they usually won’t. In Barbara Rolls’s studies, people who were given smaller portions ate less but were just as satisfied. In the 1950s, people weren’t dissatisfied with their portion sizes. And they were thinner.
Lynn Silver thought the only way to restore human-size portions was to require them. Restaurants wouldn’t do it voluntarily, no matter how much we might ask or cajole them; their profits depended too much on the big sizes. The easiest item for which to set a maximum size was a drink, because the portion matched the size of the container. There was no such simple way to judge the size of a burger or a pile of fries. The portion cap for sugary drinks met her Holy Grail criteria—low cost, high impact, big reach—and it had the extra advantage that it avoided “the whole political dimension of taxes.”
The idea of capping portion sizes to fight obesity was new. When Silver first proposed it, I thought it was brilliant—and I dismissed it. I had no doubt that if we could enact the rule, people would drink less. But the appearance and the politics of it stopped me dead. Even though portion sizes were determined not by customers but by restaurants, the customers had the illusion that what they ate was their choice alone. The public and the politicians would reject a portion cap as an interference with that choice.
I asked Silver instead to come up with a plan to restore human-size portions in restaurants, one that included not just sugary drinks but also French fries and sandwiches, and that was voluntary. There must be some way we could give a health department seal of approval—or even a financial bonus—to restaurants that served food in sizes that didn’t get their customers fat. She felt certain that too few restaurants would care about any incentive for the program to work. I told her to try anyway.
She came back with lists of ideas, none of which looked promising. Her staff investigated “healthy restaurant” programs elsewhere. None of them was working, because the only restaurants with the time and interest to get the seal of approval were the chains, even if the criteria were lax. None of us wanted McDonald’s—and only McDonald’s—to get a “healthy restaurant” stamp because it offered a couple of small sandwiches within a huge unhealthy menu.
I asked other staff members for ideas and e-mailed a few half-baked suggestions of my own. We went back and forth for nearly a year and a half. “We went through so many different iterations on what [a voluntary plan] could possibly be,” recalled Maura Kennelly. Lynn Silver became deeply frustrated that I kept demanding a voluntary scheme. “We just kept hitting a wall,” said another staff person who worked on it. Nothing seemed legal, practical, and effective.
We were all exasperated. Finally, in the summer of 2011, I asked Andy Goodman and Lynn Silver to show me in detail how we might design a portion cap for sugary drinks that was mandatory.
• • •
In April 2011 eighteen members of the Congressional Black Caucus, including the ranking Democratic member of the House subcommittee overseeing the USDA, sent a letter to USDA secretary Thomas Vilsack attacking our proposal to restrict SNAP purchases of sugary drinks. Their words sounded much like those of the food companies. The proposal would “unfairly treat SNAP customers differently from other customers, unduly complicate SNAP redemption at the point of sale and threaten to increase the stigma long associated with SNAP.”
Four months later, and ten months after we submitted our proposal, the USDA turned us down. The “scale and scope” were too large and complex, the department wrote; there were “a number of unresolved operational challenges and complexities,” and “the proposed evaluation design is not adequate.”
The department would consider, though, “potential alternative collaborations such as a public-private partnership to design, implement, and evaluate an anti-obesity intervention targeting consumption and associated behaviors while encouraging healthy choices.” And staffers hinted in conversations afterward that they might approve a much smaller demonstration project in Staten Island, in which we combined the sugary drink restriction with a “positive” incentive, like giving people extra SNAP benefits to buy vegetables.
Why Staten Island? I assumed it was because the complaints had come from the Congressional Black Caucus, and most people on Staten Island were white. Why combine the restriction with a “positive” incentive? Because people inside the USDA or in Congress viewed excluding sugary drinks—even though they were dangerous—as “negative.” Why a “public-private partnership”? I could only guess that that meant the USDA would agree only if food companies or grocery stores didn’t object.
I didn’t like the idea of running the demonstration project in Staten Island when our highest obesity rates were in the Bronx. I didn’t want to do a small research study when my job was to end an epidemic that was killing people citywide. And I wasn’t enthusiastic about combining the restriction with a “positive” financial incentive, because that would definitely have made the evaluation design “not adequate.”
But my biggest problem with the USDA’s hinted-at invitation was that it wasn’t ours to accept or not. The department dealt only with the State of New York, which since January 2011 had a new governor, Andrew Cuomo. And Cuomo had presidential ambitions. He barely spoke to his health commissioner, but he did send a clear message that he wouldn’t do a thing on sugary drinks. We tried for many months to get the state under Cuomo to talk to the USDA about a revised proposal, but we got nowhere. And with that, our idea of changing SNAP rules to slow the obesity epidemic met the same death as the soda tax.
15
“They always had two nuclear weapons.”
In late December 2010, federal court judge Jed Rakoff killed our rule requiring warning signs in stores selling cigarettes. He opened his opinion with a rhetorical flourish: “Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs.” Federal law preempted our rule, he wrote, because the law prohibited states from enacting requirements “with respect to the advertising or promotion” of cigarettes. Rakoff decreed that the racks of cigarette packs qualified as “promotion” and that a rule requiring warn
ing signs near the racks or the cash register “imposes burdens on the promotion of cigarettes that only the federal government may prescribe.”
The health department’s lawyer, Tom Merrill, believed that the tobacco industry accepted the federal cigarette laws only “because they always had two nuclear weapons. They had preemption, and they had the First Amendment.” This time the tobacco companies had had to detonate only their first nuke.
When Anne Pearson, who had come up with the warning sign idea, got enough past her grieving to read the ruling, she couldn’t fathom it. The federal law was about labeling of cigarette packs and advertising. The warning signs didn’t touch either one. It had never occurred to her that a judge would declare cigarette packs themselves to be “promotion.” Or that a judge would see a warning sign in the vicinity as somehow interfering with that promotion. “It really struck us as being apples and oranges,” she said. The federal law was never “intended to tie of hands of a jurisdiction that wanted to give information to its citizens. Even with our rule in place, the retailers are absolutely free to promote their products.” Under Rakoff’s yawning interpretation, the federal law might block just about anything we would do to protect people from cigarette marketing, because it would impose a “burden on promotion.” Pearson was devastated. “This proposal felt so much like one of my children, my baby,” she told me years later. “It’s still pretty painful.”
The ruling was especially agonizing because the warning signs had been working. Before and after the signs went up in stores selling cigarettes, we had surveyed a thousand smokers and recent quitters as they exited. The surveys showed big increases in the percent who noticed a sign (from 30 to 67 percent), and among people who saw a sign, the percent whom the sign prompted to think about quitting “a lot” (from 34 to 47 percent).
