Congress to Kids: Drop Dead

Last month, when Congress declared pizza a vegetable, it was hard to believe things could get much worse. But never underestimate politicians’ ability to put corporate interests ahead of children’s health. In the massive budget bill just passed, Congress stuck in language to require the Federal Trade Commission to conduct a cost/benefit analysis before finalizing a report that would provide the food industry with science-based nutrition guidelines for marketing to children. Experts from four federal agencies put heads together, and for the past two years have tried to complete its charge (which ironically, came from Congress in the first place) amidst powerful industry push-back.

An objective approach is badly needed because Big Food’s own lame voluntary rules allow such sugar atrocities as Reese’s Puffs cereal and Kool-Aid to be marketed to kids. But this latest political delay tactic makes no sense because it’s entirely voluntary for industry to adopt any final guidelines. As Margo Wootan, nutrition policy director for the Center for Science in the Public Interest, noted:

Doing a cost-benefit analysis makes sense for regulations that require companies to actually do something. But there is no cost associated with something that is totally voluntary.

Where then, is this idea coming from? Specifically, before its report is made final, FTC must now attempt to comply with Executive Order 13563. What’s that? Bear with me, as some history is in order.

The order derives from a nasty right-wing deregulation policy that dates back (surprise!) to the Reagan administration. The Office of Information and Regulatory Affairs (OIRA) may sound innocuous, but over the past 30 years, it has become the best tool Corporate America has to kill proposed rules it doesn’t like. It acts as a gigantic hoop an agency must jump through to prove societal benefits outweigh economic costs, tacked on to an already stringent regulatory rule-making process. Here’s how Huffington Post Washington correspondent Dan Froomkin explains it:

OIRA analysts are supposed to rigorously examine proposed regulations and reject or revise them as necessary, based on interagency concerns and whether the costs of policy proposals outweigh their benefits.

This “regulatory bottleneck by design” has been a huge success for business interests over the years:

Since Ronald Reagan opened the OIRA office in 1981, Republicans have used it to particular advantage to pursue an anti-regulatory agenda, defanging environmental rules on things like water runoff and climate change — even blocking attempts to collect information that might lead to regulations.

Despite promises by President Obama to develop a new approach and some positive efforts early on to reverse Bush-era oppressive policies, this past January the White House, as Froomkin explains: “finally issued a limp executive order that basically reaffirmed the principles that had been guiding the office for years.” So much for change. The effect has been that all “significant executive-branch regulations” must get approval from OIRA before being proposed or finalized. That’s some bottleneck. (For more on deregulation and its impacts on health and safety under the Obama administration see OMB Watch.)

Which brings us back to junk food marketing to children. Remember, any final federal recommendations on nutrition guidelines would be voluntary. The entire process was never to result in regulations. This summer, FTC’s David Vladeck, director of the Bureau of Consumer Protection, wrote a frankly worded and humorous blog post in response to a massive industry freak-out led by the advertising lobby warning of “suppression of unprecedented amounts of advertising” to children. (Wasn’t that the idea?)

Vladeck tried to calm industry fears by explaining the FTC is just reporting to Congress, which “provides no basis for law enforcement action.” He repeated: “This is a report to Congress, not a rulemaking proceeding, so there’s no proposed government regulation.” And he added, just in case industry still didn’t get it: “A report is not a law, a regulation, or an order, and it can’t be enforced.” (my emphasis)

If you’re still with me, even if you didn’t attend law school, you may be wondering by now, how could Congress require that an executive order intended for proposed agency regulations apply to a report that “provides no basis for law enforcement action?”

Good question. I’ve been asking a few of my lawyer colleagues the same thing and they agree it makes no legal sense. Public health attorney Mark Gottlieb, executive director of the Public Health Advocacy Institute, which also fights the tobacco industry, told me he thinks the executive order only applies to formal rule-making and “does not seem to apply to promulgation of voluntary guidelines that go to great pains to avoid regulating industry.”

In other words, FTC is likely on solid legal ground to go ahead and release its final report to Congress without conducting any cost/benefit analysis. But I doubt we will ever see the final report. (We do have the proposed version, which can still be used to stick it to industry, as the Environmental Working Group recently did in its damning report on sugary cereals.)

This wouldn’t be the first time Congress overstepped its legal boundaries. As I argued with the pizza-as-vegetable debacle, Congress hijacked the USDA regulatory process to do the food industry’s bidding. Here, it’s not exactly the regulatory process that’s been superseded, because the report FTC is trying to release is voluntary, but Congress is just as wrong.

Apparently, it wasn’t enough for the food, advertising, and media industries to spend $37 million lobbying this year to get its way. Nor has the multi-year delay of this entire process thanks to ongoing corporate bullying sufficed. How about making bogus “job loss” claims or (for the top Chutzpah Award) warning that we’d have to import more produce if kids actually ate their fruits and vegetables? Still not enough.

Industry keeps right on lobbying, it’s what they do best. And for Congress, it’s just business as usual. But the very real consequence of maintaining the status quo is that children will continue to be exploited for their emotional vulnerability, while getting lured into bad eating habits that can last a lifetime.

Cost/benefit analysis? Industry benefits, while children pay the cost.

Postscript: Thanks to CSPI’s Margo Wootan for sharing this take action link – tell the Obama administration, don’t let Congress and the food industry win this fight.