How rules are made in DC – childhood obesity edition

Our federal government is an intricate policy machine. Amateurs make almost no impact in Washington bureaucracy. To understand and influence federal policy, you need a permanent presence in DC. The Administrative Procedure Act generally requires that federal agencies finalize regulations only after a “notice and comment” period. Washington lobbyists track such items assiduously. When these moments come, lobbyists need ready-made policy studies to influence the rulemaking process.

The topic is childhood obesity.  TIE is a research-based blog, but in this post, focus on process, not policy.

On April 28, 2011, the federal government published draft guidance on a voluntary program restricting advertising of unhealthy foods to children (the FTC blogged it here). Who could be opposed to such a thing, with all the concerns about childhood obesity?

For starters, anyone who sells junk food to kids, and believe me when I say that junk food is well represented in DC. 150 trade associations such as the Alabama Grocers Association and the Frozen Potato Product Institute wrote a joint letter attacking the proposal. The short letter mainly asks for delay, claiming that more data is needed before government acts. But the letter also illustrates how lobbyists plan ahead. The group funded a consultants’ report which finds that fighting childhood obesity puts “74,000 jobs”  “in jeopardy.” It’s not peer reviewed, but it sows doubt and gives opponents something to talk about.  With a few months lead time and a six-figure budget, such studies are easy to procure.

But lobbyists also play long ball, games that last years, even decades. Like a cricket match in hell.

For more than a decade, the Washington Legal Foundation has filed legal cases and briefs advancing the “commercial speech” theory of the First Amendment, an idea that was unanimously rejected by the Supreme Court in 1942. But today, commercial speech is a profound de-regulatory tool, striking down regulation of tobacco ads, pharmaceutical data mining, liquor stores, and other products. Millions of dollars, invested strategically over many years, are now bearing fruit as judges use “commercial speech” to strike down public health rules.

And now they come for childhood obesity. On the Sensible Food Policy Coalition website, two distinguished law professors argue that the First Amendment forbids voluntary guidelines to combat childhood obesity. One of the professors acknowledges financial support from Viacom, who must make good money from Twinkies ads.

My point isn’t to dispute either of these papers (at least not today) nor to disparage the distinguished authors, but to just note what success the commercial speech movement has made since the 1980s, and how this long-planned strategy is now attacking public health efforts against childhood obesity.

But who is working the long-term game on behalf of public health? Academics are amateurs in this game. Many foundations and think tanks have strategic vision, but many shy away from litigation. The friends of tobacco, booze and fatty foods haven’t been shy. And they are winning.

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