Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety Website. The following is one of the essays for 2020.

By Jessica Guarino

Most threats conjured in the mind upon hearing “food safety” encompass the likes of invisible foodborne pathogens that are the cause of multiple outbreaks each year. Less prominent in the minds of many is the safety of their food from a long-term perspective. It is not always the immediate harms that should prompt swift action: even the most insidious pose a threat to food safety and warrant the same amount of attention. One main culprit is added sugar, and industry does consumers a great disservice by normalizing excess consumption of an ingredient so clearly linked to negative health consequences.

Nearly 70% of packaged foods contain added sugars, and it is well documented that added sugars have significant negative implications for both physical and mental health: countless studies link sugars, and especially the consumption of sugar in excess of recommended amounts, to conditions such as depression, Type 2 Diabetes, and heart disease, among others. It is not just diagnosable health conditions that should concern consumers, for even if a consumer never suffers from one of the conditions linked with consumption of excess added sugars. In terms of the psychological detriment, an increasing amount of studies are drawing connections between depression and anxiety and the ways in which sugar exacerbates those conditions. One study claims: “Firstly, low levels of the growth factor brain derived neurotrophic factor (BDNF) have been discussed as facilitating neurogenesis and hippocampal atrophy in depression . . . Secondly, carbohydrate consumption has been associated with increased circulating inflammatory markers, which may depress mood. Thirdly, high sugar diets could induce hypoglycemia through an exaggerated insulin response and thereby influence hormone levels and potentially mood states. Fourthly, addiction-like effects of sugar suggest dopaminergic neurotransmission mechanisms might connect frequent sugar intake with depression.”

Added sugars pose a different danger by the nature of the products they are often found in: packaged, processed foods. Generally speaking, packaged and processed foods tend to result in low satiety but are high in calories and added sugars. Low satiety means overconsumption of other foods, and those other foods are likely also processed and packaged with an exorbitant level of added sugar. And these reasons are, in part, why the FDA initiated regulations for the labeling of added sugars in their latest Nutrition Innovation Strategy. 

But we should be wary to trust that labeling of harmful substances alone will ensure our lifelong health and safety. Government guidance on nutrition often significantly lags behind current research and, even worse, at times actively regulations in contradiction to what any science suggests. For instance, the current dietary guidelines are only updated every 4 years, and FDA regulations too may take years to finalize. The FDA is forced into a game of endless catch-up that does not serve the interests of the consumer and arguably does not further the FDA’s goals. 

Federal regulations, before effective, must pass through a period of public comment, the likes of which can be particularly revealing. In analyzing the comments made to the Added Sugar declaration on food labels, public health, the public interest sector, government, and academic groups such as the American Academy of Pediatrics, the American Heart Association, the Institute of Medicine, and the World Health organization overwhelmingly supported the proposition. 

Unsurprisingly, those in opposition were almost exclusively industry groups. Their position was evidently clear that current science does not support a connection between the consumption of added sugars and negative health conditions. They cite the “scant” evidence and “scientific rationale.” General Mills went so far as to say that “There is little to weak conclusive scientific evidence . . . relating the intake of added sugars in the general U.S. population to a chronic disease, condition, or health-related physiological endpoint beyond dental caries.” The Sugar Association urged anyone reading the comments to consider the benefits of sugar, added and otherwise, in the diet. 

In 2015 the Dietary Guidelines Advisory Committee recommended limiting added sugars to 10% of an individual’s daily calories (about 6 teaspoons for women and 9 teaspoons for men). At first glance, 10% may not seem like a significant portion of one’s diet, merely 200 calories out of the standard 2000. Yet this recommendation does not discuss consumption of natural sugars, which have no different effect on the body metabolically than added sugars, meaning that overall consumption of sugar may be much higher than just 10% of the daily diet. For perspective, that means if a person followed the DGAC’s suggestion, they consume 1,400 calories in added sugars alone each week. Your daily value of allotted added sugar can easily be wiped away by drinking a Starbucks drink, some of which contain more than 14 teaspoons of sugar.

For years we have heard that sugar is “bad,” but labeling has not empowered consumers to effectively alter their diet to mitigate the risks of high levels of added sugars in the diet. Even the DGAC expressed concern over the effectiveness of labeling added sugars, recommending that amounts be listed in both grams and teaspoons, “since teaspoons are easier to understand for most Americans.”

Curiously, current FDA regulation of added sugar deviates from both of these suggestions from the DGAC. Regulations of added sugars define them as “sugars that are either added during the processing of foods or are packaged as such.” Any terms ending in “ose,” such as fructose, dextrose, and maltose, are all sugars derived from various sources. The FDA calculates the percent Daily Value (% DV) for added sugars on the basis of 50 grams or 12.5 teaspoons of added sugar, nearly double the DGAC’s recommendation for women’s intake and 3.5 teaspoons in excess of the 9 recommended for men. Additionally, the FDA opted to label using only grams instead of teaspoons as a metric. Perhaps the most troubling aspect is the FDA’s acknowledgement that these calculations kept in mind the assumption that Americans are already known to consume added sugars in excess. Despite the slight progress in a healthier direction, reducing added sugars from “a whole lot” to just “a lot” all ends with the same sick populace. 

The deception runs deeper as suppliers make claims about added sugars outside of the ingredient label. Claims such as “healthy,” make no mention of the amounts of sugar, added or otherwise, in assessing a product’s healthiness. Instead, “healthy” foods only consider fat levels and the amounts of beneficial nutrients. Other claims such as “lightly sweetened,” are unregulated, though formulations suggest otherwise. One complaint against Kellog alleged that 40% of the calories in multiple of Kellog’s cereals came from added sugars, yet the terms “nutritious,” “wholesome,” and “lightly sweetened” appeared prominently on the packaging. When labels and claims are so far from the truth, and when the consequences of added sugars are so grave, it is imperative that greater transparency be made available to the consumer. It is one of the FDA’s stated goals to increase transparency in labeling, but all the FDA has done so far for added sugar is potential make the situation more confusing for the average consumer who may not even know the difference between added sugars and those sugars which occur naturally. 

To further food safety goals, it is imperative that the FDA take additional steps to curtail consumption of added sugars. This is especially so given one of the largest group of consumers of added sugars are children, who can develop health problems that will endure alongside them for the rest of their lives. Thomas Robinson, MD, a Stanford pediatric obesity researcher, explained that “The potential implications are even stronger for children than adults. Children are being exposed to that environment for a much longer time. This is particularly a problem in developing countries where their food, supplies, diets and weights are changing so rapidly.” The CDC has predicted that 1 in 3 U.S. children will have diabetes, and that estimate moves to 1 in 2 among African-American and Latina girls. It is hard to imagine that a substance so clearly linked to obesity and known to be present in numerous foods consumed by children, willfully or otherwise, is not even considered when determining what is “healthy.”

Some studies show that the labeling of added sugars will help to curb the economic and personal health costs of the consumption of added sugars. The numbers suggest that more effective, however, would be a combination of labeling declarations and reformulation on the part of industry. One optimistic study cites savings in the billions over the next 20 years of consumption of added sugars is brought down by either or both of those initiatives. The study claims, “Using nationally representative data and a validated microsimulation model, we found that implementation of the Food and Drug Administration added sugar label would prevent 354,400 cardiovascular diseases and 599,300 diabetes mellitus cases over 20 years, gaining 727,000 quality-adjusted life-years.” The researching findings continue, “Potential health gains and cost savings would be twice as large accounting for corresponding industry reformulation.” It is up to industry, says the study, to play their “critical” role “in maximizing the health and economic benefits of the Food and Drug Administration policy.”

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