Last week, Keep Food Legal Foundation executive director took to a variety of forums to speak out on an FDA proposal to force an "added sugar" label onto the agency-mandated Nutrition Facts panel.
Why oppose the proposed “added sugar” label? Because it's flawed for many reasons. Mandatory “added sugar” labeling may violate the First Amendment. Use of the term "added sugar" is also misleading, as it creates a deceptive health halo around products like orange juice and apple juice, which are high in naturally occurring sugar but contain no added sugar. The “added sugar” label also raises this question: why stop at mandating added sugar on food labels? Why not added salt, added caffeine, and added allergens like soy and dairy? Why not label for added protein and added carbs
Why? Because the "added sugar" label was never intended to provide consumers with more information. Instead, it’s intended to punish food companies that some public-health activists don’t like.
"By forcing what amounts to an added-sugar warning on the label, the government is attempting to skew consumer demand," Linnekin told the L.A. Times.
But the lack of an "added sugar" label doesn’t mean food companies can hide how much sugar is in their food. Quite the opposite, actually. Thanks to existing FDA regulations, the mandatory Nutrition Facts panel already requires food makers to inform consumers exactly how much sugar is in a given serving of food. Another requirement for listing the carbohydrate content of foods also tells consumers how many carbs, which includes all sugars, are in that same serving of food. And FDA rules for food ingredient labeling, meanwhile, requires that every component of a food, including sugar, be listed prominently in descending order of weight.
Linnekin also appeared on KCRW’s excellent To the Point program to discuss the added sugar proposal alongside fellow guest Dr. Robert Lustig, whose soapbox is perhaps the largest in this country on the topic of regulations and sugar. Fellow guetss also included Evan Halper of the L.A. Times and Renee Sharp of the Environmental Working Group. Lustig and Sharp strongly endorsed the FDA proposal because it would finally clear up food labels. But what of the information that's already there?
"If all of that information isn’t clear enough," Linnekin wrote in his weekly Reason column later in the week, "then it’s incumbent on proponents of mandating still more information to explain how adding the term 'added sugar'" is the solution.
Keep Food Legal Foundation has filed an amicus curiae brief in Horne v. USDA, a landmark Supreme Court case set to be decided this term. Our brief elucidates--likely for the first time in Supreme Court history--the essential food-related origins of the Fifth Amendment's Takings Clause, which is the central issue in the case. Our brief may also be the first ever to discuss the term "food freedom" before the Supreme Court.
Our brief was authored by Keep Food Legal Foundation executive director Baylen Linnekin (along with George Mason University Law School student Kathleen Garman, who was a student in Linnekin's Food Law & Policy Seminar at the law school last semester), who also serves as a co-amicus. It supports plaintiff Marvin Horne (pictured at right). Horne saw nearly half of a recent year's raisin crop he owned subject to seizure by the USDA, thanks to an absurd, New Deal-era USDA raisin marketing program. Horne sued, claiming rightly that the seizure amounts to an unconstitutional taking, and that he is due compensation equal to the dollar value of raisins the USDA program takes from him.
Our brief describes how a person's rights in food as property go back to Magna Carta, and notes that in 1641 Massachusetts established the first protection against uncompensated takings (specifically, of cattle and other personal property). In the years prior to and during the American Revolution, we detail, the British increasingly violated the colonists’ personal property rights in food. Founding Father James Madison drafted the Takings Clause in order to protect the property rights of Americans by preventing the government from engaging in any such future abuses, we argue. The essential food-related origins of the Takings Clause we reveal in our brief, we conclude, suggest that courts should interpret the Takings Clause most broadly in cases where--as in this case--the government takes personal property, particularly food.
Horne v. USDA is the most important food-regulatory case in recent memory. A victory for plaintiff Horne could spell the end of the USDA's wasteful (not to mention unconstitutional) raisin marketing order program. The program's continued existence likely hinges on a USDA victory in the case. A USDA loss here would be an enormous victory for raisin growers, handlers, consumers, and food freedom. But a victory for Horne could also spell the end of dozens of equally terrible USDA marketing programs, including separate ones governing--as Linnekin wrote in a recent Reason column on the case--"almonds, apricots, avocados, cherries (both sweet and tart), Florida and Texas citrus, cranberries, dates, grapes, hazelnuts, kiwifruit, olives, many onions and pears, pistachios, California plums and prunes, many potatoes, raisins, spearmint oil, tomatoes, and walnuts."
Oral arguments in the case are set for Wednesday, April 22. Linnekin, a member of the Supreme Court bar, plans to be in attendance.
Want more? Read Linnekin's 2013 column on the Horne case here.
Earlier this month, Keep Food Legal Foundation executive director Baylen Linnekin sat down in the Washington, DC studio of Hearst Television to tape a segment on a current food trend in California, in which sales of foods via Facebook have become increasingly common (if still uncommon). The subsequent report aired recently on California television station KCRA.
From the transcript:
Keep Food Legal Foundation's Baylen Linnekin is an activist who has been pushing to ensure people have freedom to eat the foods they want.
"[People marketing food on Facebook] are not making a million dollars," Linnekin said. "It's not like they are suddenly becoming this baron of underground food in California. They are making a little bit here and a little bit there."
In other words, this is a small, local trend that's likely to stay small and local. Interestingly, the trend may have arisen due to the restrictive nature of California's cottage food law.
Unlike many state cottage food laws, which permit the sale of countless home-prepared foods--and which only bar sales of potentially hazardous foods--California's law enumerates a short list of foods people may sell and bans everything else. That's a tremendous shortcoming with the law, as Linnekin notes in the report.
"Kale chips for example. Potato chips. Not potentially hazardous, and yet not on the list," Linnekin said. "And so therefore, you can't sell them."
Watch the KCRA report here. And read Linnekin's 2011 Reason magazine print article on underground food sales via social media in New York City (specifically, lobster rolls and grilled cheese sandwiches) here.