Download Dietary Guidelines Pertinent to Confectioners

Dietary Guidelines
Pertinent to Confectioners
How does confectionery fare in the Guidelines? There are few
specific mentions of candy, and the Guidelines generally
emphasize the importance of an overall healthy diet.
David R. Joy
Keller and Heckman LLP
g
The federal government recently issued the
This year’s edition of the Guidelines
Dietary Guidelines for Americans for 2005.
weighs in at 70 pages. It is understood that
Every five years, these guidelines essentially
the document will not be directly studied
urge us to eat our spinach and ease up on
by consumers. Rather, the Guidelines are
the candy.This article explores the substance
expected to be used by policymakers, nutri-
of the 2005 Guidelines, how they differ from
tionists and nutrition educators. A 12-page
previous editions and their potential impact
booklet entitled Finding Your Way to a
on the confectionery industry.
Healthier You was issued as a distillation of
The National Nutrition Monitoring and
the Guidelines, aimed directly at consumers.
Related Research Act of 1990 directs the
Realistically, a very small percentage of
Secretaries of Health and Human Services
American consumers can be expected to
(HHS) and the U.S. Department of Agri-
see this booklet, and fewer still will study
culture (USDA) to publish jointly a report
it and alter their diets accordingly.
entitled Nutrition and Your Health: Dietary
One could argue on this basis that the
Guidelines for Americans at least every five
Guidelines are an expensive, somewhat aca-
years.The sixth edition of the Dietary Guide-
demic and sometimes acrimonious exercise,
lines for Americans was released on Janu-
with little real-world consequence. But the
ary 12, 2005. The Guidelines have a direct
Guidelines likely do have some impact, and
impact on the policies of the federal gov-
the confectionery industry should expect
ernment in a few ways. For example, the
the Guidelines’ recommendations to filter
nutrition standards of the National School
into the American consciousness over time,
Lunch Program are based on the Guidelines.
if not immediately. Of course, there are two
Ultimately, the Guidelines are intended to
separate questions here. Will the recom-
guide or influence consumer behavior.They
mendations in the Guidelines be widely dis-
do not have a significant, direct regulatory
seminated and understood? More impor-
impact on the food industry.
tantly, will they be followed?
David Joy is a partner
at the law firm of
Keller and Heckman
LLP. He specializes in
food and drug law
with emphasis on the
domestic and international regulation of
food, food additives,
food labeling, pesticides and medical
devices.
David R. Joy
The Manufacturing Confectioner • May 2005 75
®
Dietary Guidelines Pertinent to Confectioners
The Guidelines
repeatedly
recommend limited
consumption of
foods containing
added sugars, but
do not rule out
consumption of
sweets altogether.
SUBSTANCE OF THE 2005
GUIDELINES XXXXXXXXX
cial focus on added sugars as opposed to
The Guidelines are organized in chapters
total sugar intake including both added
covering discrete areas including weight
sugars and sugars that occur naturally in
management, physical activity, food groups
foods. The Guidelines address this ques-
to encourage, fats and carbohydrates. If a
tion, saying “the greater the consumption
single message can be derived from the
of foods containing large amounts of added
Guidelines, it is that Americans should limit
sugars, the more difficult it is to consume
their overall calorie intake, and this means
enough nutrients without gaining weight.”
making more careful food choices in order
In other words, added sugar is blamed for
to ingest adequate amounts of important
higher calorie intake while not contribut-
micronutrients and macronutrients.
ing nutrients.
One might ask why there should be spe-
How does confectionery fare in the
This is a point that seems to echo the
Guidelines? There are few specific men-
views of the Center for Science in the Pub-
tions of candy, and the Guidelines generally
lic Interest (CSPI). CSPI has petitioned
emphasize the importance of an overall
the Food and Drug Administration to
healthy diet, without naming specific foods
require a separate nutrition labeling dec-
to avoid. The chapter covering carbohy-
laration for added sugars. The FDA has
drates is probably of most relevance to the
not thus far taken steps to grant this peti-
confectionery industry.
tion.The Guidelines go so far as to explain:
ple, a person aiming for consumption of
The Nutrition Facts Panel on the food label
provides the amount of total sugars but
does not list added sugars separately. People should examine the ingredient list to
find out whether a food contains added
sugars.
2,000 calories per day, based upon his or
It is not new or surprising that the Guide-
her age and activity level, should choose
lines discourage heavy consumption of
nutrient-dense foods. If that person is able
foods with added sugars. The fact remains,
to achieve his or her recommended nutri-
however, that good nutrition is set out in
ent intake without hitting 2,000 calories,
the Guidelines as a matter of achieving
the remaining calories, referred to as the
adequate intake of nutrients while limit-
discretionary calorie allowance, create
ing total calorie intake to an acceptable
room in the diet for added sugars, fats and
level. No single food or food type will make
alcohol. For most consumers, however, the
or break a good diet. One can possibly
discretionary calorie allowance is small. In
interpret the above comment in two ways:
the example of a careful consumer aiming
as suggesting there should be a separate
for 2,000 calories per day, 267 calories, or
listing for added sugars in the nutrition
roughly one candy bar per day, might be
facts panel because they are of special con-
available for fats and sweets in combina-
cern, or as suggesting, sensibly, that an
tion. An active teenage male, aiming for
interested consumer can readily determine
3,200 calories per day, has a larger discre-
from the ingredient declaration whether
tionary calorie allowance, at 648 calories.
a food contains added sugar.
The Guidelines repeatedly recommend
limited consumption of foods containing
added sugars, but do not rule out consumption of sweets altogether. For exam-
76 May 2005 • The Manufacturing Confectioner
®
Dietary Guidelines Pertinent to Confectioners
If there is any good news for candy in
antioxidants, in the context of explaining a
the chapter dealing with carbohydrates, it
general preference for receiving nutrients
is possibly that sweetened beverages
through food rather than through dietary
receive more blame than candy as con-
supplements. This is a small acknowledg-
tributing to high calorie intake in some
ment that there may be many substances
individuals. Figure 1 showsthe major
present in food that contribute to good
sources of added sugars in the American
health in ways we do not yet fully under-
diet. Regular soft drinks are said to account
stand. Confectionery is not generally seen
for 33 percent of all added sugar in the
as a source of phytochemicals in the diet,
diet, while “sugar and candy” accounts for
and it may be a bit of a stretch to bring
only 16.1 percent of all added sugar. A
confectionery into the scope of this state-
statement on page 36 of the report makes
ment. However, research into the beneficial
a more explicit message regarding an asso-
effects of flavanols in chocolate has been
ciation between calorically sweetened bev-
well received and can be cited as a reason
erages and weight gain. A person seeking
to include chocolate in a sensible and var-
to follow the Guidelines, or move in the
ied diet.
The 2005 Guidelines
can be expected to
shape federal policy
and be studied by
some professional
nutritionists, but
they cannot
realistically be
expected to impact
consumer behavior
in a direct way.
direction of the Guidelines, might sensibly
determine that switching to sugar-free soft
WHAT’S NEW?
drinks would adequately reduce total calo-
The 2005 Guidelines do not differ drasti-
rie intake.
cally from the 2000 edition. This is not
Another aspect of the Guidelines that
unexpected because advances in the sci-
might fall into the “silver lining” category
ence of nutrition do not occur rapidly.
for confectionery is its implicit repudia-
Some differences worth noting follow.
tion of the Atkins Diet. Dr.Atkins receives
As stated above, the 2005 edition of the
no specific mention, but the overwhelm-
Guidelines is not aimed directly at con-
ing emphasis throughout the report is on
sumers. This is probably an inevitable
achieving proper nutrition through a var-
development, as the Guidelines have got-
ied diet, particularly as a long-term goal. In
ten more detailed and complex with each
an apparent response to the popularity of
new edition. The Guidelines are packed
the Atkins Diet, the Guidelines state:
with much more information and technical
When it comes to body weight, it is calories that count — not the proportions of fat,
carbohydrates, and protein in the
diet … Diets that provide very low or very
high amounts of protein, carbohydrates or
fat are likely to provide low amounts of
some nutrients and are not advisable for
long-term use. Although these kinds of
weight-loss diets have been shown to result
in weight reduction, the maintenance of a
reduced weight ultimately will depend on a
change in lifestyle.
detail than was included in the 1980 edition. A summary booklet, Finding Your
Contribution to Added Sugars Intake
Percent of total added sugars consumed
Food groups that contribute more than 5 percent of the added sugars to the American diet in
decreasing order.
The first chapter of the Guidelines makes
Food Categories
Regular soft drinks
Sugars and candy
Cakes, cookies, pies
Fruit drinks (fruitades and fruit punch)
Dairy desserts and milk products
(ice cream, sweetened yogurt and sweetened milk)
Other grains (cinnamon toast and honey-nut waffles)
a brief mention of phytochemicals and
Figure 1
(percent)
33.0%
16.1%
12.9%
9.7%
8.6%
5.8%
®
The Manufacturing Confectioner • May 2005 77
Dietary Guidelines Pertinent to Confectioners
Obesity is caused
by the combination
of a sedentary
lifestyle and poor
diet; it is not
caused by any one
bad food.
Way to a Healthier You, accompanies the
in hand. Obesity is caused by the combi-
2005 Guidelines and is intended to be more
nation of a sedentary lifestyle and poor
consumer-friendly. Importantly, the 2005
diet; it is not caused by any one bad food.
Guidelines can be expected to shape fed-
The 2005 Guidelines arguably stray at
eral policy and be studied by some (not
times into topics that are not strictly mat-
all) professional nutritionists, but they can-
ters of nutrition. For example, an entire
not realistically be expected to impact con-
chapter is devoted to food safety. One key
sumer behavior in a direct way.
recommendation in the chapter on carbo-
Another significant difference in the
hydrates is to “reduce the incidence of den-
2005 Guidelines is the expected emphasis
tal caries by practicing good oral hygiene
on obesity. When the federal government
and consuming sugar- and starch-contain-
first began issuing dietary guidance, the
ing foods and beverages less frequently.”
most important objectives were avoiding
malnutrition and nutrient-deficiencyrelated diseases, such as scurvy and goiter,
MEDIA REACTION, COMMENTARY
AND CRITICISMX XXXXXXXXXXX X
which at that time afflicted millions of
For most Americans, the full extent of their
Americans. People were urged to consume
exposure to the Guidelines occurred on
more food and a variety of agricultural
January 13, 2005, in the form of newspa-
produce, in a way that could only please
per and television reports. The reporting
food producers. Today, our life expectancy
that occurred as the Guidelines were issued
is longer and nutrient-deficiency diseases
generally stated the substance of the
are significantly less prevalent. Reflecting
Guidelines in a straightforward way, with a
changing health concerns, the association
few doses of skepticism thrown in.
between chronic illnesses and obesity takes
Criticism of the Guidelines after their
center stage in the 2005 Guidelines. The
release might be placed into a few broad
2005 Guidelines include a strong emphasis
on limiting total calorie intake as the primary means of body weight control.
More so than in previous editions, the
2005 Guidelines emphasize that calorie
categories:
• Criticism that the Guidelines contain
nothing new.
• Criticism that the Guidelines are unre-
alistic.
requirements vary by individual and
• Criticism that the Guidelines do not go
depend on gender, age and physical activity level. Americans are urged to increase
far enough in recommending radical
changes in the American diet.
their level of physical activity. To manage
The first type of criticism was typified by
body weight and prevent weight gain in
headlines referring to the Guidelines as
adulthood, Americans are urged to engage
“repackaged” and commentary along the
in “approximately 60 minutes of moder-
lines of “as if you didn’t know: eat less, exer-
ate- to vigorous-intensity activity on most
cise more.” It is certainly true that the
days of the week.” To sustain weight loss,
Guidelines do not contain significant new
60 to 90 minutes of moderate-intensity
revelations about nutrition, but this is
physical activity may be needed. This is an
because advances in nutrition science do
important and essential acknowledgment
not occur quickly. The Guidelines are cur-
that proper nutrition and exercise go hand
rently issued every five years, by law, and ®
78 May 2005 • The Manufacturing Confectioner
Dietary Guidelines Pertinent to Confectioners
they are simply intended to reflect the cur-
This type of criticism tends to reveal that
rent state of scientific knowledge and con-
nutrition is a contentious and somewhat
sensus. The Guidelines would probably
politicized science. It would be difficult to
remain reasonably up to date if they were
find many passages in the 2005 Guidelines
issued less frequently, possibly every ten
that could not have been penned by the
years. However, the purpose behind the
Center for Science in the Public Interest
Guidelines is not only to convey new infor-
(CSPI).Those who feel that the food indus-
mation, but also to focus attention on
try enjoys an inappropriate degree of influ-
healthy eating, and a government reminder
ence over the wording of the Guidelines
every five years is not necessarily excessive.
are apparently looking for explicit con-
The second type of criticism, that the
demnations of bad foods. The Guidelines’
Guidelines are unrealistic, often focused
gentle warning about sweetened bever-
on the complexity of dietary advice gen-
ages does not suffice.This type of criticism,
erally and the unlikelihood that Ameri-
however, misses the overall message of the
cans looking to lose weight will achieve
Guidelines (eat a variety of foods; achieve
60 to 90 minutes of exercise per day or
adequate intake of nutrients; limit total
that adults will drink three cups of (low-
calorie intake; and exercise), and it is very
fat) milk per day. This possibly points to
difficult to fault this sensible and science-
inherent difficulties associated with
based message. Moreover, this type of crit-
dietary advice. The Guidelines do
icism seems to be based on incorrect
acknowledge that “currently adherence
assumptions that, one, there is no room in
to the Dietary Guidelines is low in the
the diet for pleasurable, less nutrient-dense
U.S. population.” The sensible approach
foods; and, two, consumers would actually
taken by the 2005 Guidelines seems to be
that they present sound advice based on
The discretionary
calorie allowance
gives individuals
following the
Guidelines some
flexibility to enjoy
foods that contain
added fats and
sugars.
eliminate “processed foods” if only the
Guidelines recommended that they do so.
current science, and they are aimed at
nutritionists rather than consumers.
The third general type of criticism is that
the Guidelines do not go far enough. Particularly in the months and weeks leading
up to the release of the 2005 Guidelines,
CONSUMER BEHAVIOR
Common sense as well as hard data tells
us that American consumers will not eliminate candies and desserts from their diets.
some newspaper articles included allega-
As noted above, the Guidelines do not call
tions that the Guidelines are influenced by
for the total elimination of sweets. The dis-
food industry lobbyists. A typical example
cretionary calorie allowance gives indi-
is a brief article that ran in the New York
viduals following the Guidelines some flex-
Times on January 5, 2005, under the head-
ibility to enjoy foods that contain added
line “Uncle Sam: Nutritionist.” In it, a nutri-
fats and sugars. Since 1980, however, the
tionist at the University of California,
Guidelines have been recommending that
Berkley, was said to have noted that the
Americans “avoid too much sugar,” and
Guidelines are “heavily influenced by the
the Guidelines have gotten gradually
food manufacturing industry” and was
tougher on sugar from 1980 to the present.
quoted as saying,“From what I understand,
During that same time period, however,
the Guidelines will be business as usual.”
consumption data collected by the NPD ®
The Manufacturing Confectioner • May 2005 79
Dietary Guidelines Pertinent to Confectioners
Humans have been
eating sweetened
foods for centuries,
and a government
report could not
change that.
Group (a sales and marketing information
Eating Occasions of Total Confections
firm) does not show a noticeable down-
29.7
ward trend in consumption of total con-
22.5
22.1 22.4
28.0
26.7
26.4
21.8 21.9
23.2
23.8
23.5
24.6
25.9
26.7
25.0 25.2
23.6
24.4
25.9
25.0
fectionery or specific types of confectionery. For example, on a per capita basis,
Americans consumed confectionery products about 25 times per year in 2004. In
other words, considering both eaters and
1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004
Figure 2
noneaters of confectionery, the average
number of confectionery eating occasions
Eating Occasions of Chocolate
per person in the United States was 25 in
2004. Twenty years earlier, in 1984, the
13.8
13.6
11.6
11.4
11.6
12.0
12.6
11.7
14.5
14.1 13.9 14.2
13.6
12.2
14.7
14.2
14.7 14.5
13.4
14.1
12.4
annual confectionery eatings per capita
was 22.1. Data provided by the NPD
Group are shown in Figure 2.
Similar results are seen for specific types
of confectionery. For total chocolate,
1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004
Figure 3
annual eatings per capita were 14.1 in 2004
and 11.6 in 1984, as shown in Figure 3.
Approximately the same percentage of
Americans enjoys confectionery today as
in 1984. NPD reports that 29.7 percent of
individuals in its sample reported eating
confectionery at least once in a two-week
period in 1984. In 2004, the figure was
30.6 percent. In other words, approximately
behavior.As emphasized above, the Guidelines allow for the incorporation of sweets
into a sensible diet. However, even if the
Guidelines included a strong recommendation to eliminate sweets, American consumers would not be expected to respond
accordingly. Humans have been eating
sweetened foods for centuries, and a gov-
30 percent of Americans enjoyed a con-
ernment report could not change that. A
fectionery product at least once per two-
dramatic example of consumers’ unre-
week period in 1984, and the same is true
sponsiveness to government health advice
in 2004.
is found in cigarette smoking. The Surgeon
These figures provide a rough look at
General first warned of the dangers asso-
consumer behavior using the best avail-
ciated with cigarette smoking in 1964, and
able data.The information presented refers
warning statements have appeared on cig-
to number of eating occasions and does
arette packages since the early 1970s. The
not indicate the amount of food consumed
Centers for Disease Control currently esti-
per eating occasion. Certainly, however, if
mates that 22.5 percent of all adults in the
Americans were reducing their consump-
United States smoke cigarettes.
tion of confectionery based upon the
Dietary Guidelines or for any other reason, that would be reflected in the data.
This finding is consistent with a common-sense understanding of consumer
80 May 2005 • The Manufacturing Confectioner
FUTURE
The 2005 Guidelines do not differ greatly
from the 2000 Guidelines, but are note- ®
Dietary Guidelines Pertinent to Confectioners
worthy for their emphasis on total calorie
obesity litigation, such as lawsuits against
intake and physical activity. The Guide-
fast food restaurants. A plaintiff in such a
lines should not have a significant or direct
lawsuit might certainly cite the Guidelines
regulatory impact on the food industry.
as indicating, for example, that a particular
They will likely be referenced as the Food
dish contains a large dose of fat or total
and Drug Administration (FDA) contin-
calories when compared to a healthy daily
ues to consider changes in its nutrition
intake. However, anyone citing the Guide-
labeling regulations. Prior to issuance of
lines in that manner would need to pre-
the 2005 Guidelines, FDA was already
pare for strong rebuttal arguments that the
considering various changes to the nutri-
Guidelines also recommend a varied diet
tion facts box such as giving more promi-
and a healthy amount of exercise each day.
nence to the total calorie declaration;
Indeed, a sensible philosophy surround-
requiring packaged foods that can be rea-
ing the Guidelines would be that they pro-
sonably consumed at one time to be
vide an outstanding source of nutrition
treated as a single serving; updating the
established serving sizes generally; and
updating the daily values for reported
nutrients, for example, the expected
amounts of total fat, saturated fat and carbohydrates in a 2,000-calorie daily diet.
As FDA moves forward with these plans,
the Guidelines may be cited, but the
Guidelines themselves should not be considered responsible for these changes.
advice, and the proper role of the govern-
A sensible
philosophy
surrounding the
Guidelines would
be that they
provide an
outstanding source
of nutrition advice,
and the proper role
of the government
is simply to
dispense this
advice and require
nutrition labeling
on food packages.
ment is simply to dispense this advice and
require nutrition labeling on food packages. What individuals do with this information in a free society is a matter of personal choice.
CONCLUSION
If the food industry really had as much
Likewise, efforts to reduce food adver-
influence over the federal government as
tising aimed at children are not likely to
some commentators perceive, the Dietary
be strongly influenced by the Dietary
Guidelines would possibly not exist. Given
Guidelines themselves. The Institute of
that they do exist, the food industry should
Medicine is currently undertaking a com-
be pleased that the current edition of the
prehensive study of the effects of food mar-
Guidelines is fair, reasonable and based on
keting on diets and health of children in
good science. The Guidelines will certainly
America. This effort will likely contribute
not result in perceptible changes in the
more to the discussion of food advertising
consumption of confectionery in America.
than will the Dietary Guidelines. The Fed-
This is primarily for two reasons: few
eral Trade Commission does not presently
Americans will make a serious effort to
have plans to restrict food advertising
pattern their diets after the Guidelines,
aimed at children, and, in fact, would not
and, more importantly, the Guidelines
appear to have authority to do so unless
accommodate some consumption of plea-
Congress acts to amend the Federal Trade
surable foods within the discretionary calo-
Commission Act.
rie allowance, as well they should.
I
Some might wonder whether the Dietary
Guidelines will play a role in any future
Presented at the PMCA Production Conference
The Manufacturing Confectioner • May 2005 81