June 11, 2012
Companies with an interest in the manufacturing, distribution or retailing of
food and beverage products are rightfully concerned about New York City Mayor
Bloomberg’s proposal to use the city’s unelected Board of Health to prohibit any
entity under its purview from selling a sugar-sweetened beverage in any
container larger than 16 ounces.
While Bloomberg’s proposal may be the most obvious recent development, it is
not the most ominous. Like an iceberg, there is far more business and
reputational risk, and legal uncertainty, lurking beneath the surface.
Last Thursday, Mayor Nutter of Philadelphia gave the keynote address to “The
Sugary Drink Summit” where he recalled the 1964 landmark study by the U.S.
surgeon general — “Smoking and Health” — which outlined the health risks
associated with tobacco use. That surgeon general’s report became the foundation
for the mandated labeling of tobacco products. Nutter called upon the Obama
administration for “the same kind of report on sugar-sweetened beverages as the
surgeon general and the CDC has undertook [sic] on tobacco — a comprehensive
study of what effects sugary drinks have on the body.” At the same summit, U.S.
Senator Frank Lautenberg announced that he will try to attach an amendment to
the pending farm bill, to have the federal government study whether drink bans
could improve national health. It is noteworthy that Senator Lautenberg was a
leading force behind the original movement to regulate, tax and otherwise
restrict tobacco domestically and internationally. He spearheaded work with
public health advocates and non-governmental organizations around the world.
Mayor Nutter will soon become chairman of the United States Conference of
Mayors at the mayors’ annual convention, attended by several hundred mayors and
their key staff members. As chairman, it is presumed Nutter will continue to
aggressively advocate that all levels of government should “create and promote
policies that encourage citizens to make conscious and well-informed decisions
about the health impact of what they are buying.”
At the same convention, the Institute of Medicine will report on “The Role of
Cities in Fighting Obesity.” The institute is a primary force behind HBO’s “The
Weight of the Nation.” The report will likely encourage mayors to adopt
Bloomberg-like restrictions or to explicitly ban the sale of “unhealthy”
products on city property, as Mayor Menino did in Boston. Additionally, the
institute may renew its call for substantial taxes on “unhealthy” products and
the use of local zoning authority to control the mix of and even price at which
retailers offer “healthy” and “unhealthy” products to consumers, such as kids’
meals in fast service restaurants.
Subsequently, the Centers for Disease Control will present a report entitled
“Partnering for Healthier Communities,” which will likely reiterate their call
for “unhealthy” products to be labeled with “clear warning labels/designs that
reduce positive mental imagery.”
Later this summer the National Association of County Officials, the National
Conference of State Legislatures, National Association of Attorneys General and
the National Governors Association will meet and likely receive similar
The question is not if, but where and when these activities will lead to new
local, state and even federal governmental efforts to explicitly discriminate
against one product over another in the name of preventing consumers from making
“unhealthy” choices. In the coming months we anticipate state-, county- and
city-level proposals to tax products containing “unhealthy” ingredients such as
sugar or trans-fat, restrict availability of products through outright
prohibition of sales and zoning restrictions and require labels disclosing
certain products and ingredients deemed “unhealthy” by a governmental body.
It may be appropriate to increase your organization’s awareness of these
circumstances and consider the appropriate issue management strategy, including
appropriate legal, government relations and public affairs components. This may
be particularly appropriate for those with significant consumer-facing brands.
While these waters may be treacherous, they can be navigated. McGuireWoods
LLP and McGuireWoods Consulting LLC are available to assist you with charting your
organization’s path through this dynamic and unfavorable policymaking
environment. McGuireWoods Consulting is experienced at designing and deploying
grassroots efforts that either outright oppose these types of governmental
proposals or shape the outcome to accommodate the concerns our clients’ efforts
have elevated. These efforts typically engage employees, suppliers, customers,
community leaders and the media. Our team is also available to work with those
who seek to inject a contrary point of view into these national meetings of
On the legal front, McGuireWoods LLP is well suited to help you comply and,
if necessary, challenge regulations restricting the sale and marketing of
consumer products. The firm’s interdisciplinary
food and beverage industry team
has experienced attorneys in a variety of legal disciplines working across the
country. Two of these lawyers literally “wrote the book” — “Food Safety Law,”
published in 2010 by American Lawyers Media — and stand by ready to assist you
as you confront these many new challenges.
This alert was authored by
Eric A. Lundberg,
McGuireWoods Consulting LLC, and
Neale, McGuireWoods LLP.